exv4w6



 





Exhibit 4.6




 

 



Federated Retail Holdings, Inc., as Issuer




Federated Department Stores, Inc., as Guarantor




and




U.S. Bank National Association, as Trustee





 






Indenture




Dated
as of November 2, 2006




 





DEBT SECURITIES




 

 


 









 





Federated Retail Holdings, Inc.

Debt Securities

Cross Reference Sheet*




This Cross Reference Sheet shows the location in the

Indenture of the provisions inserted pursuant to Sections 310 — 318(a),

inclusive, of the Trust Indenture Act of 1939, as amended.




	 	 	 	 	 	 
	Trust Indenture Act	 	Sections of Indenture
	§ 310
	 	(a)(1)	 	 	9.08
	 
	 	(a)(2)	 	 	9.08
	 
	 	(a)(3)	 	 	Inapplicable
	 
	 	(a)(4)	 	 	Inapplicable
	 
	 	(a)(5)	 	 	9.08
	 
	 	(b)	 	 	9.07 and 9.09
	 
	 	(c)	 	 	Inapplicable
	§ 311
	 	(a)	 	 	9.12
	 
	 	(b)	 	 	9.12
	 
	 	(c)	 	 	Inapplicable
	§ 312
	 	(a)	 	 	7.01 and 7.02
	 
	 	(b)	 	 	7.02
	 
	 	(c)	 	 	7.02
	§ 313
	 	(a)	 	 	7.03
	 
	 	(b)	 	 	7.03
	 
	 	(c)	 	 	7.03
	 
	 	(d)	 	 	7.03
	§ 314
	 	(a)	 	 	7.04
	 
	 	(a)(4)	 	 	1.01 and 6.05
	 
	 	(b)	 	 	Inapplicable
	 
	 	(c)(1)	 	 	14.05
	 
	 	(c)(2)	 	 	14.05
	 
	 	(c)(3)	 	 	14.05
	 
	 	(d)	 	 	Inapplicable
	 
	 	(e)	 	 	14.05
	 
	 	(f)	 	 	Inapplicable
	§ 315
	 	(a)	 	 	9.01
	 
	 	(b)	 	 	8.08
	 
	 	(c)	 	 	9.01
	 
	 	(d)	 	 	9.01
	 
	 	(e)	 	 	8.07
	§ 316
	 	(a)(1)(A)	 	 	8.01 and 8.06
	 
	 	(a)(1)(B)	 	 	8.01
	 
	 	(a)(2)	 	 	Inapplicable
	 
	 	(b)	 	 	8.09
	 
	 	(c)	 	 	14.11
	§ 317
	 	(a)(1)	 	 	8.02
	 
	 	(a)(2)	 	 	8.02
	 
	 	(b)	 	 	6.03
	§ 318
	 	(a)	 	 	14.08








 




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





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	RECITALS
	 	 	1	 
	 
	 	 	 	 
	[Form of Face of Security]
	 	 	1	 
	[Form of Reverse of Security]
	 	 	3	 
	[Form of Trustee’s Certificate Of Authentication for Securities]
	 	 	7	 
	[Form of Legend for Global Securities]
	 	 	7	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS
	 	 	8	 
	 
	 	 	 	 
	Section 1.01. Certain Terms Defined
	 	 	8	 
	 
	 	 	 	 
	Act
	 	 	8	 
	Affiliate
	 	 	8	 
	Authenticating Agent
	 	 	8	 
	Board of Directors
	 	 	8	 
	Board Resolution
	 	 	8	 
	Business Day
	 	 	9	 
	Capital Lease
	 	 	9	 
	Capital Lease Obligation
	 	 	9	 
	Commission
	 	 	9	 
	Common Stock
	 	 	9	 
	Company
	 	 	9	 
	Company Request or Company Order
	 	 	9	 
	Corporate Trust Office
	 	 	10	 
	Covenant Defeasance
	 	 	10	 
	Default
	 	 	10	 
	Defaulted Interest
	 	 	10	 
	Defeasance
	 	 	10	 
	Defeasible Series
	 	 	10	 
	Depositary
	 	 	10	 
	Event of Default
	 	 	10	 
	Exchange Act
	 	 	10	 
	GAAP
	 	 	11	 
	Global Security
	 	 	11	 
	Guarantee
	 	 	11	 
	Guarantor
	 	 	11	 
	Holder
	 	 	11	 
	Indebtedness
	 	 	11	 
	Indenture
	 	 	12	 
	Interest
	 	 	12	 
	Interest Payment Date
	 	 	13	 
	Issuer
	 	 	13	 
	Material Adverse Effect
	 	 	13	 
	Maturity
	 	 	13	 
	Notice of Default
	 	 	13	 






 -i- 




 









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Obligation
	 	 	13	 
	Officer’s Certificate
	 	 	13	 
	Opinion of Counsel
	 	 	13	 
	Original Issue Discount Security
	 	 	13	 
	Outstanding
	 	 	14	 
	Parent
	 	 	15	 
	Paying Agent
	 	 	15	 
	Person
	 	 	15	 
	Place of Payment
	 	 	15	 
	Predecessor Security
	 	 	15	 
	Redemption Date
	 	 	15	 
	Redemption Price
	 	 	15	 
	Regular Record Date
	 	 	16	 
	Responsible Officer
	 	 	16	 
	Securities
	 	 	16	 
	Security Register and Security Registrar
	 	 	16	 
	Special Record Date
	 	 	16	 
	Stated Maturity
	 	 	17	 
	Subsidiary
	 	 	17	 
	Trust Indenture Act
	 	 	17	 
	Trustee
	 	 	17	 
	U.S. Government Obligation
	 	 	17	 
	Vice President
	 	 	18	 
	 
	 	 	 	 
	ARTICLE II. THE SECURITIES
	 	 	18	 
	 
	 	 	 	 
	Section 2.01. Designation and Amount of Securities
	 	 	18	 
	Section 2.02. Form of Securities and Trustee’s Certificate of Authentication
	 	 	21	 
	Section 2.03. Date and Denominations
	 	 	21	 
	Section 2.04. Execution, Authentication and Delivery of Securities
	 	 	21	 
	Section 2.05. Registration of Transfer and Exchange
	 	 	22	 
	Section 2.06. Temporary Securities
	 	 	24	 
	Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities
	 	 	24	 
	Section 2.08. Cancellation of Surrendered Securities
	 	 	25	 
	Section 2.09. Payment of Interest; Interest Rights Preserved
	 	 	25	 
	Section 2.10. Persons Deemed Owners
	 	 	27	 
	Section 2.11. Computation of Interest
	 	 	27	 
	Section 2.12. CUSIP Numbers
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III. REDEMPTION OF SECURITIES
	 	 	27	 
	 
	 	 	 	 
	Section 3.01. Applicability of Article
	 	 	27	 
	Section 3.02. Election to Redeem; Notice to Trustee
	 	 	27	 
	Section 3.03. Deposit of Redemption Price
	 	 	29	 






 -ii- 




 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 3.04. Securities Payable on Redemption Date
	 	 	29	 
	Section 3.05. Securities Redeemed in Part
	 	 	29	 
	 
	ARTICLE IV. SINKING FUNDS
	 	 	29	 
	 
	Section 4.01. Applicability of Article
	 	 	29	 
	Section 4.02. Satisfaction of Sinking Fund Payments With Securities
	 	 	30	 
	Section 4.03. Redemption of Securities for Sinking Fund
	 	 	30	 
	 
	 	 	 	 
	ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE
	 	 	30	 
	 
	 	 	 	 
	Section 5.01. Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	30	 
	Section 5.02. Defeasance and Discharge
	 	 	31	 
	Section 5.03. Covenant Defeasance
	 	 	31	 
	Section 5.04. Conditions to Defeasance or Covenant Defeasance
	 	 	32	 
	Section 5.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
	 	 	34	 
	Section 5.06. Reinstatement
	 	 	34	 
	 
	 	 	 	 
	ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY
	 	 	35	 
	 
	 	 	 	 
	Section 6.01. Payment of Principal, Premium and Interest on Securities
	 	 	35	 
	Section 6.02. Maintenance of Office or Agency
	 	 	35	 
	Section 6.03. Money for Securities Payments to be Held in Trust
	 	 	35	 
	Section 6.04. Existence
	 	 	36	 
	Section 6.05. Statement by Officers as to Default
	 	 	36	 
	Section 6.06. Waiver of Certain Covenants
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VII. SECURITIES HOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	37	 
	 
	 	 	 	 
	Section 7.01. Company to Furnish Trustee Names and Addresses of Holders
	 	 	37	 
	Section 7.02. Preservation of Information; Communication to Holders
	 	 	37	 
	Section 7.03. Reports by Trustee
	 	 	38	 
	Section 7.04. Reports by Company
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VIII. DEFAULT
	 	 	38	 
	 
	 	 	 	 
	Section 8.01. Event of Default
	 	 	38	 
	Section 8.02. Covenant of Company to Pay to Trustee Whole Amount Due on Securities
on Default in Payment of Interest or Principal; Suits for Enforcement by Trustee
	 	 	41	 
	Section 8.03. Application of Money Collected by Trustee
	 	 	42	 
	Section 8.04. Limitation on Suits by Holders of Securities
	 	 	43	 
	Section 8.05. Rights and Remedies Cumulative; Delay or Omission in Exercise of Rights not a Waiver of Event of Default
	 	 	43	 






 -iii- 




 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 8.06. Rights of Holders of Majority in Principal Amount of Outstanding Securities to Direct Trustee
	 	 	44	 
	Section 8.07. Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or Against the Trustee
	 	 	44	 
	Section 8.08. Notice of Defaults
	 	 	44	 
	Section 8.09. Unconditional Right of Holders to Receive Principal, Premium, and Interest
	 	 	44	 
	Section 8.10. Restoration of Rights and Remedies
	 	 	44	 
	Section 8.11. Trustee May File Proofs of Claims
	 	 	45	 
	 
	 	 	 	 
	ARTICLE IX. CONCERNING THE TRUSTEE
	 	 	45	 
	 
	 	 	 	 
	Section 9.01. Certain Duties and Responsibilities
	 	 	45	 
	Section 9.02. Certain Rights of Trustee
	 	 	45	 
	Section 9.03. Not Responsible for Recitals or Issuance of Securities
	 	 	46	 
	Section 9.04. May Hold Securities
	 	 	46	 
	Section 9.05. Money Held in Trust
	 	 	47	 
	Section 9.06. Compensation and Reimbursement
	 	 	47	 
	Section 9.07. Disqualification; Conflicting Interests
	 	 	47	 
	Section 9.08. Corporate Trustee Required; Eligibility
	 	 	48	 
	Section 9.09. Resignation and Removal; Appointment of Successor
	 	 	48	 
	Section 9.10. Acceptance of Appointment by Successor
	 	 	49	 
	Section 9.11. Merger, Conversion, Consolidation, or Succession to Business
	 	 	50	 
	Section 9.12. Preferential Collection of Claims Against Company
	 	 	51	 
	Section 9.13. Appointment of Authenticating Agent
	 	 	51	 
	Section 9.14. Trustee’s Application for Instruction from the Company
	 	 	52	 
	 
	 	 	 	 
	ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
	 	 	53	 
	 
	 	 	 	 
	Section 10.01. Purposes for Which Supplemental Indentures May Be Entered Into Without Consent of Holders
	 	 	53	 
	Section 10.02. Modification of Indenture with Consent of Holders of at Least a Majority in Principal Amount of Outstanding Securities
	 	 	54	 
	Section 10.03. Execution of Supplemental Indentures
	 	 	55	 
	Section 10.04. Effect of Supplemental Indentures
	 	 	55	 
	Section 10.05. Conformity with Trust Indenture Act
	 	 	55	 
	Section 10.06. Reference in Securities to Supplemental Indentures
	 	 	55	 
	 
	 	 	 	 
	ARTICLE XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER
	 	 	55	 
	 
	 	 	 	 
	Section 11.01. Consolidations and Mergers of Company and Sales Permitted Only on Certain Terms
	 	 	55	 






 -iv- 




 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE XII. GUARANTEES
	 	 	56	 
	 
	 	 	 	 
	Section 12.01. Guarantees
	 	 	56	 
	Section 12.02. Limitation on Liability; Termination, Release and Discharge
	 	 	58	 
	Section 12.03. No Subrogation
	 	 	58	 
	 
	 	 	 	 
	ARTICLE
XIII. SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	59	 
	 
	 	 	 	 
	Section 13.01. Satisfaction and Discharge of Indenture
	 	 	59	 
	Section 13.02. Application of Trust Money
	 	 	59	 
	 
	 	 	 	 
	ARTICLE XIV. MISCELLANEOUS PROVISIONS
	 	 	60	 
	 
	 	 	 	 
	Section 14.01. Successors and Assigns of Company Bound by Indenture
	 	 	60	 
	Section 14.02. Service of Required Notice to Trustee and Company
	 	 	60	 
	Section 14.03. Service of Required Notice to Holders; Waiver
	 	 	60	 
	Section 14.04. Indenture and Securities to be Construed in Accordance with the Laws of the State of New York
	 	 	61	 
	Section 14.05. Compliance Certificates and Opinions
	 	 	61	 
	Section 14.06. Form of Documents Delivered to Trustee
	 	 	61	 
	Section 14.07. Payments Due on Non-Business Days
	 	 	61	 
	Section 14.08. Provisions Required by Trust Indenture Act to Control
	 	 	61	 
	Section 14.09. Invalidity of Particular Provisions
	 	 	62	 
	Section 14.10. Indenture May be Executed In Counterparts
	 	 	62	 
	Section 14.11. Acts of Holders; Record Dates
	 	 	62	 
	Section 14.12. Effect of Headings and Table of Contents
	 	 	64	 
	Section 14.13. Benefits of Indenture
	 	 	64	 






 -v- 




 









 





     Indenture,
dated as of November 2, 2006, by and among Federated Retail Holdings, Inc., a
corporation duly organized and existing under the laws of the State of New York (the “Company”), as
Issuer, Federated Department Stores, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (“Parent”), as Guarantor, and U.S. Bank National Association, a national
banking association duly incorporated and existing under the laws of the United States of America
(herein called the “Trustee”), as Trustee.



Recitals




     A. The Company and the Guarantor have duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Company’s unsecured debentures,
notes, and other evidences of indebtedness (the “Securities”), to be issued in one or more series
as in this Indenture provided.



     B. The Securities of each series will be in substantially the form set forth below, or in
such other form as may be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by this Indenture, and may have
such letters, numbers, or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities.



[Form of Face of Security]




[Insert any legend required by the Internal

Revenue Code and the regulations thereunder.]




Federated Retail Holdings, Inc.




 






CUSIP No. ____




			
	 	 	 
	No.                     
	 	$                     






     Federated Retail Holdings, Inc., a corporation duly organized and existing under the laws of
the State of New York (hereinafter called the “Company,” which term includes any successor Person
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ___, or
registered assigns, the principal sum of $____on___ [if the Security is to bear interest prior to
Maturity, insert: “, and to pay interest thereon from
__ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, on                                          and
___ in each year, commencing on ___, at the
rate of ___ % per annum, until the
principal hereof is paid or made available for payment [if applicable, insert: “, and at
the rate of _______%  per annum on any overdue principal and premium and on any overdue installment of
interest”]. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the 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 will be
the ___ or ___
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually 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 will be given to Holders of Securities of this series not less than 10 calendar 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 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 will 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 will bear interest at the rate of ____% per annum which will 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 will be payable on demand. Any such interest on
any overdue principal that is not so paid on demand will bear interest at the rate of ___%
per annum which will 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 will 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 office or agency of the Company maintained for
the 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 debts [if applicable, insert: “;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such address appears in the
Security Register”].



     Federated Department Stores, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the “Parent”), has fully and unconditionally guaranteed the
payment of principal, premium, if any, and interest on the Security.



     REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE REVERSE HEREOF. SUCH
PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.



     This Security will not be valid or become obligatory for any purpose until the certificate of
authentication herein has been signed manually by the Trustee under the Indenture referred to on
the reverse side hereof.



2









 





     In Witness Whereof, this instrument has been duly executed in accordance with the Indenture.



Federated Retail Holdings, Inc.




By:                                                                 
                




Attest:




By:                                         




[Form of Reverse of Security]




Federated Retail Holdings, Inc.




     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
___, 2006 (herein called the “Indenture”), by and among the Company, as Issuer, the Parent, as
Guarantor, and U.S. Bank National Association, a national banking association duly incorporated and
existing under the laws of the United States of America, 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 Guarantor, 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 [if applicable, insert: “, limited in aggregate principal amount to $___”].



     [If applicable, insert: “The Securities of this series are subject to redemption upon
not less than 30 calendar days’ notice by mail,[if applicable, insert: “(a) on ___ in each 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, and (b)”] at any time [if applicable, insert: “on or after
___ , ___”], 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 [If
applicable, insert: “on or before                      ,                     %, and if redeemed”]
during the 12-month period beginning                      of the years indicated,



	 	 	 	 	 	 	 
	 

	 	Redemption
	 	 	 	Redemption
	Year

	 	Price
	 	Year
	 	Price
	 

	 	 
	 	 
	 	 





3









 




and thereafter at a Redemption Price equal to ___% of the principal amount, 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, but interest
installments the Stated Maturity of which is on or prior to such Redemption Date will be payable to
the Holders of such Securities, 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 upon
not less than 30 calendar days’ notice by mail,[if applicable, insert: “(a) on ___
in each year commencing with the year ____ and ending with the year ___
 through operation of the sinking fund for this series at the following Redemption
Prices (expressed as percentages of the principal amount) applicable to redemption through
operation of the sinking fund and (b)”] at any time [if applicable, insert: “on or after
__ , ___ ”], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount) applicable to
redemption otherwise than through operation of the sinking fund: If redeemed [If applicable,
insert: “on or before ___, ____%, and if redeemed”] during the
12-month period beginning ___of the years indicated,



	 	 	 	 	 
	 

	 	Redemption Price For
	 	Redemption Price For
	 

	 	Redemption Through
	 	Redemption Otherwise
	 

	 	Operation of the
	 	Than Through Operation
	Year

	 	Sinking Fund
	 	of the Sinking Fund
	 

	 	 
	 	 




and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, 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: “Notwithstanding the foregoing, the Company may not, prior to
        , redeem any Securities of this series as contemplated by [if applicable, insert: “Clause
(b) of”] the preceding paragraph 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.”]



     [If applicable, insert: “The sinking fund for this series provides for the redemption
on ____ in each year beginning with the year
___and ending with the year
                    
of
[if
applicable, insert: “not less than $
                    
(“mandatory sinking fund”) and not more than”]
$                    
aggregate principal amount of Securities of this



4









 




series. Securities of this series acquired or redeemed by the Company otherwise than through
[if applicable, insert: “mandatory”] sinking fund payments may be credited against
subsequent [if applicable, insert: “mandatory”] sinking fund payments otherwise required
to be made [if applicable, insert: “in the inverse order in which they become due”].”]




     [If the Security is subject to redemption of any kind, insert: “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 applicable, insert: “The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness evidenced by this Security or (b) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.”]



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



     [If the Security is an Original Issue Discount Security, insert: “If an Event of
Default with respect to Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount will be equal to [insert formula for
determining the amount]. Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal and overdue interest, 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 will terminate.”]



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company, the Guarantor and the rights of the
Holders of the Securities of each series to be affected under the Indenture at any time by the
Company, the Guarantor 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, 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 will 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 notation of such consent or waiver is made upon
this Security.



     As provided in and subject to the provisions of the Indenture, the Holder of this Security
will not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to



5









 




the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding for 60 calendar days after receipt
of such notice, request, and offer of indemnity. The foregoing will apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon 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
will alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place, 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 any premium and interest on this 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 $1,000 and integral multiples 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 will 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 purposes, whether or not this Security shall be
overdue, and neither the Company, the Trustee, nor any such agent will be affected by notice to the
contrary.



     All terms used in this Security that are defined in the Indenture will have the respective
meanings assigned to them in the Indenture.



6









 





     C. The Trustee’s certificate of authentication will be in substantially the following form:



[Form of Trustee’s Certificate Of Authentication for Securities]




Trustee’s Certificate of Authentication




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



	 	 	 	 	 
	 	U.S. Bank National Association,

  as Trustee

 	 
	Dated:                     	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




     D. Every Global Security authenticated and delivered hereunder will bear a legend in
substantially the following form:



[Form of Legend for Global Securities]




     This Security is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee thereof. This Security may not be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary or a nominee thereof, and no such transfer may be registered, except in
the limited circumstances described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, this Security will be a Global
Security subject to the foregoing, except in such limited circumstances.



     E. All acts and things necessary to make the Securities, when the Securities have been
executed by the Company and authenticated by the Trustee and delivered as provided in this
Indenture, the valid, binding, and legal obligations of the Company and to constitute these
presents a valid indenture and agreement according to its terms, have been done and performed, and
the execution and delivery by the Company of this Indenture and the issue hereunder of the
Securities have in all respects been duly authorized; and the Company, in the exercise of legal
right and power in it vested, is executing and delivering this Indenture and proposes to make,
execute, issue, and deliver the Securities.



     Now, Therefore, this Indenture Witnesseth:




     In order to declare the terms and conditions upon which the Securities are authenticated,
issued, and delivered, and in consideration of the premises and of the purchase and acceptance of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for the



7









 




equal and proportionate benefit of the respective Holders from time to time of the Securities
or of a series thereof, as follows:




ARTICLE I. DEFINITIONS.




Section 1.01. Certain Terms Defined.




     (a) The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context of this Indenture otherwise requires) for all purposes of this Indenture and of
any indenture supplemental hereto have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act, either directly or
by reference therein (except as herein otherwise expressly provided or unless the context of this
Indenture otherwise requires), have the respective meanings assigned to such terms in the Trust
Indenture Act as in force at the date of this Indenture as originally executed.


Act:




     The term “Act,” when used with respect to any Holder, has the meaning set forth in Section
14.11.


Affiliate:




     The term “Affiliate” means, with respect to a particular Person, any Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, control of a 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 of the foregoing.


Authenticating Agent:




     The term “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section
9.13 to act on behalf of the Trustee to authenticate Securities of one or more series.


Board of Directors:




     The term “Board of Directors” means the Board of Directors of the Company or a duly authorized
committee of such Board of Directors.


Board Resolution:




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



8









 




Business Day:




     The term “Business Day”, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday, and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or required by law or executive order to close and the Federal
Reserve Bank’s Fedwire Service is operating.


Capital Lease:




     The term “Capital Lease” means, with respect to any Person, any lease of property (whether
real, personal, or mixed) by such Person or its Subsidiaries as lessee that would be capitalized on
a balance sheet of such Person or its Subsidiaries prepared in conformity with GAAP, other than, in
the case of such Person or its Subsidiaries, any such lease under which such Person or any of its
Subsidiaries is the lessor.


Capital Lease Obligation:




     The term “Capital Lease Obligations” means, with respect to any Person, the capitalized amount
of all obligations of such Person and its Subsidiaries under Capital Leases, as determined on a
consolidated basis in conformity with GAAP.


Commission:




     The term “Commission” means the U.S. Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the execution of this
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.


Common Stock:




     The term “Common Stock” means the common stock, par value $.01 per share, of the Parent.


Company:




     The term “Company” means Federated Retail Holdings, Inc., a New York corporation, until a
successor Person shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Company” will mean such successor Person.


Company Request or Company Order:




     The term “Company Request” or “Company Order” means a written request or order signed in the
name of the Company by the President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary, or an Assistant Secretary of the Company, and delivered to the Trustee.



9









 




Corporate Trust Office:




     “Corporate
Trust Office” means the office of the Trustee at which at any
particular time the trust created by this Indenture shall be administered,
which at the date of initial execution of this Indenture is One
Federal Street, 3rd Floor, Boston, Massachusetts 02110, Attention: Corporate
Trust Services; except that
with respect to the presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office
or agency of the Trustee in the Borough of Manhattan, The City of New
York, at which at any particular
time its corporate trust services business shall be conducted, which office
at the date of initial execution of this Indenture is U.S. Bank Trust
National Association, an Affiliate of the Trustee, 100 Wall
Street, Suite 1600, New York, New York 10005, Attention:
Corporate Trust Services.


Covenant Defeasance:




     The term “Covenant Defeasance” has the meaning set forth in Section 5.03.


Default:




     The term “Default” means any event which, with notice or passage of time or both, would
constitute an Event of Default.


Defaulted Interest:




     The term “Defaulted Interest” has the meaning set forth in Section 2.09.


Defeasance:




     The term “Defeasance” has the meaning set forth in Section 5.02.


Defeasible Series:




     The term “Defeasible Series” has the meaning set forth in Section 5.01.


Depositary:




     The term “Depositary” means, with respect to Securities of any series issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated by Section 2.01.


Event of Default:




     The term “Event of Default” has the meaning set forth in Section 8.01(a).


Exchange Act:




10









 








     The term “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder, as the same may be in
effect from time to time.


GAAP:




     The term “GAAP” means generally accepted accounting principles in the United States of America
as in effect from time to time set forth in the opinions and pronouncements of the Accounting
Principles Board and The American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other statements by any
other entity or successor entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of determination.


Global Security:




     The term “Global Security” means a Security that evidences all or part of the Securities of
any series and is authenticated and delivered to, and registered in the name of, the Depositary for
such Securities or a nominee thereof.


Guarantee:




     The term “Guarantee” means the Guarantor’s guarantee of the Securities as provided in Article
XII.


Guarantor:




     The term “Guarantor” means the Parent, as the guarantor of the Securities as provided in
Article XII.


Holder:




     The term “Holder” means a Person in whose name a particular Security is registered in the
Security Register.


Indebtedness:




     The term “Indebtedness” means, as applied to any Person, without duplication:



     (a) all obligations of such Person for borrowed money;



     (b) all obligations of such Person for the deferred purchase price of property or services
(other than property and services purchased, and expense accruals and deferred compensation items
arising, in the ordinary course of business);



     (c) all obligations of such Person evidenced by notes, bonds, debentures, mandatorily
redeemable preferred stock, or other similar instruments (other than performance, surety, and
appeals bonds arising in the ordinary course of business);



11









 





     (d) all payment obligations created or arising under any conditional sale, deferred price, or
other title retention agreement with respect to property acquired by such Person (unless the rights
and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property);



     (e) any Capital Lease Obligation of such Person;



     (f) all reimbursement, payment, or similar obligations, contingent or otherwise, of such
Person under acceptance, letter of credit, or similar facilities (other than letters of credit in
support of trade obligations or incurred in connection with public liability insurance, workers’
compensation, unemployment insurance, old-age pensions, and other social security benefits other
than in respect of employee benefit plans subject to ERISA);



     (g) all obligations of such Person, contingent or otherwise, under any guarantee by such
Person of the obligations of another Person of the type referred to in clauses (a) through (f)
above; and



     (h) all obligations referred to in clauses (a) through (f) above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
mortgage or security interest in property (including without limitation accounts, contract rights,
and general intangibles) owned by such Person and as to which such Person has not assumed or become
liable for the payment of such obligations other than to the extent of the property subject to such
mortgage or security interest;



provided, however, that Indebtedness of the type referred to in clauses (g) and (h)
above shall be included within the definition of “Indebtedness” only to the extent of the least of:
(i) the amount of the underlying Indebtedness referred to in the applicable clause (a) through (f)
above; (ii) in the case of clause (g), the limit on recoveries, if any, from such Person under
obligations of the type referred to in clause (g) above; and (iii) in the case of clause (h), the
aggregate value (as determined in good faith by the board of directors or similar governing body of
such Person) of the property of such Person subject to such mortgage or security interest.


Indenture:




     The term “Indenture” means this Indenture, as this Indenture may be amended, supplemented, or
otherwise modified from time to time, including, for all purposes of this Indenture and any
indenture supplemental hereto, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture and any such supplemental indenture, respectively. The term
“Indenture” also includes the terms of particular series of Securities established in accordance
with Section 2.01.


Interest:




     The term “interest,” (a) when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest which accrues from and after and is
payable after Maturity and (b) when used with respect to any Security, means the amount of all
interest accruing on such Security, including any default interest and any interest that would have
accrued after any Event of Default but for the occurrence of such Event of



12









 




Default, whether or not a claim for such interest would be otherwise allowable under
applicable law.



Interest Payment Date:




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


Issuer:




     The term “Issuer” means the Company, as the issuer of the Securities described in this
Indenture.


Material Adverse Effect:




     The term “Material Adverse Effect” means a material adverse effect on the business, assets,
financial condition or results of operations of the Company (taken together with its Subsidiaries
as a whole).


Maturity:




     The term “Maturity,” when used with respect to any Security, means the date on which the
principal of that 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:




     The term “Notice of Default” means a written notice of the kind set forth in Section
8.01(a)(iv).


Obligation:




     The term “Obligation” has the meaning set forth in Section 12.01.


Officer’s Certificate:




     The term “Officer’s Certificate” means a certificate executed on behalf of the Company or the
Guarantor, as applicable, by a Responsible Officer and delivered to the Trustee.


Opinion of Counsel:




     The term “Opinion of Counsel” means an opinion in writing signed by legal counsel, who,
subject to any express provisions hereof, may be an employee of or counsel for the Company, any
Subsidiary of the Company, or the Guarantor, as applicable, reasonably acceptable to the Trustee.



13









 




Original Issue Discount Security:




     The term “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 Maturity thereof pursuant to Section 8.01(b).


Outstanding:




     The term “Outstanding” means, when used with reference to Securities as of a particular time,
all Securities theretofore issued by the Company and authenticated and delivered by the Trustee
under this Indenture, except:



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



     (b) Securities for the payment or redemption of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company is acting as its own Paying Agent) for
the Holders of such Securities; 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



     (c) Securities 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 bona fide 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 the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder:




     (i) the principal amount of an Original Issue Discount Security that will be deemed to
be Outstanding will be the amount of the principal thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof to such date
pursuant to Section 8.01(b);




     (ii) the principal amount of a Security denominated in one or more foreign currencies
or currency units will be the U.S. dollar equivalent, determined in the manner contemplated
by Section 2.01 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the
date of original issuance of such Security of the amount determined as provided in clause
(i) above) of such Security; and




     (iii) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee will be protected in relying
upon any such request, demand, authorization, direction, notice,



14









 






consent, or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned will 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 of such other obligor.



Parent:




     The term “Parent” means Federated Department Stores, Inc., a corporation duly organized and
existing under the laws of the State of Delaware.


Paying Agent:




     The term “Paying Agent” means any Person authorized by the Company to pay the principal of or
any premium or interest on any Securities on behalf of the Company.


Person:




     The term “Person” means any individual, partnership, corporation, limited liability company,
joint stock company, business trust, trust, unincorporated association, joint venture, or other
entity, or government or political subdivision or agency thereof.


Place of Payment:




     The term “Place of Payment,” when used with respect to the Securities of any series, means the
place or places specified for the payment of the principal of and any premium and interest on the
Securities of that series as contemplated by Section 2.01.


Predecessor Security:




     The term “Predecessor Security,” when used with respect to any particular Security, means
every previous Security evidencing all or a portion of the same debt as that evidenced by such
Security; and, for the purposes of this definition, any Security authenticated and delivered under
Section 2.07 in exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will be
deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen Security.


Redemption Date:




     The term “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:




15









 








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


Regular Record Date:




     The term “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 2.01.


Responsible Officer:




     The term “Responsible Officer,” when used:



     (a) with respect to the Company, means the Chairman, the President, a Vice President, the
Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or any other officer of the Company appointed by the Board of Directors;



     (b) with respect to the Guarantor, means the Chairman, a Deputy Chairman, a Vice Chairman, the
Chief Executive Officer, the President, a Vice President, the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or any other officer of
the Guarantor appointed by the board of directors of the Guarantor; and



     (c) with respect to the Trustee, means the Chairman or any Vice Chairman of the board of
directors, the Chairman or any Vice Chairman of the executive committee of the board of directors,
the Chairman of the trust committee, the President, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Senior Trust Officer, any Trust Officer or Assistant Trust
Officer, the Controller or any Assistant Controller, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject.


Securities:




     The term “Securities” has the meaning set forth in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this Indenture.


Security Register and Security Registrar:




     The terms “Security Register” and “Security Registrar” have the respective meanings set forth
in Section 2.05.


Special Record Date:




16









 








     The term “Special Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.09.


Stated Maturity:




     The term “Stated Maturity,” when used with respect to any Security, any installment of
interest thereon, or any other amount payable under this Indenture or the Securities, means the
date specified in this Indenture or such Security as the regularly scheduled date on which the
principal of such Security, such installment of interest, or such other amount, is due and payable.


Subsidiary:




     The term “Subsidiary” means, as applied with respect to any Person, any corporation,
partnership, or other business entity of which, in the case of a corporation, more than 50% of the
issued and outstanding capital stock having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the occurrence of any
contingency), or, in the case of any partnership or other legal entity, more than 50% of the
ordinary equity capital interests, is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries, or by one or more of such
Person’s other Subsidiaries.


Trust Indenture Act:




     The term “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force
at the date as of which this instrument was executed; provided, however, that in
the event 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.


Trustee:




     The term “Trustee” means the Person named as the “Trustee” in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Trustee” will 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 will mean each Trustee with respect to Securities of that series.


U.S. Government Obligation:




     The term “U.S. Government Obligation” means:



     (a) any security that is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally



17









 




guaranteed as a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof; and




     (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government Obligation specified in
clause (a), which U.S. Government Obligation is held by such custodian for the account of the
holder of such depositary receipt, or with respect to any specific payment of principal of or
interest on any such U.S. Government Obligation, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such depositary receipt.


Vice President:




     The term “Vice President,” when used with respect to the Company or the Trustee, means any
vice president, whether or not designated by a number or a word or words added before or after the
title “vice president.”



     (b) The words “Article” and “Section” refer to an Article and Section, respectively, of this
Indenture. 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 Articles V, VI, and IX are defined in those Articles. Terms in the
singular include the plural and terms in the plural include the singular.



ARTICLE II. THE SECURITIES.




Section 2.01. Designation and Amount of Securities.




     (a) The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.



     (b) The Securities may be issued in one or more series. There will be established in or
pursuant to a Board Resolution and, subject to Section 2.04, set forth or determined in the manner
provided in an Officer’s Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:




     (i) the title of the Securities of the series (which will distinguish the Securities of
the series from Securities of any other series);




     (ii) 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 the exchange for, or in
lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06
and except for any Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder);



18









 






     (iii) the Person to whom any interest on a Security of the series will be payable, if
other than 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;




     (iv) the date or dates on which the principal of the Securities of the series is
payable;




     (v) the rate or rates at which the Securities of the series will bear interest, if any,
the date or dates from which such interest will accrue, the Interest Payment Dates on which
any such interest will be payable, and the Regular Record Date for any interest payable on
any Interest Payment Date;




     (vi) the place or places where the principal of and any premium and interest on
Securities of the series will be payable;




     (vii) the period or periods within which, the price or prices at which, and the terms
and conditions upon which Securities of the series may be redeemed, in whole or in part, at
the option of the Company;




     (viii) 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 upon which Securities of the series will be redeemed or purchased, in whole
or in part, pursuant to such obligation;




     (ix) if other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable;




     (x) the currency, currencies, or currency units in which payment of the principal of
and any premium and interest on any Securities of the series will be payable if other than
the currency of the United States of America and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes of the definition of
“Outstanding” in Section 1.01;




     (xi) if the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, based upon a formula,
or in some other manner, the manner in which such amounts will be determined;




     (xii) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or a Holder thereof, in one or more currencies
or currency units other than that or those in which the Securities are stated to be payable,
the currency, currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is made will be
payable, and the periods within which and the terms and conditions upon which such election
is to be made;



19









 






     (xiii) if other than the principal amount thereof, the portion of the principal amount
of Securities of the series which will be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 8.01(b);




     (xiv) if applicable, that the Securities of the series will be subject to either or
both of Defeasance or Covenant Defeasance as provided in Article V, provided that no
series of Securities that is exchangeable into Common Stock pursuant to Section 2.01(b)(xvi)
or exchangeable for any other securities pursuant to Section 2.01(b)(xvii) will be subject
to Defeasance pursuant to Section 5.02;




     (xv) if and as applicable, that the Securities of the series will be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any circumstances other than
those set forth in Section 2.05 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such transfer may
be registered;




     (xvi) the terms and conditions, if any, pursuant to which the Securities of the series
are exchangeable into Common Stock;




     (xvii) the terms and conditions, if any, pursuant to which the Securities of the series
are exchangeable for any other securities, including (without limitation) securities of
Persons other than the Parent;




     (xviii) any addition to or change in the Events of Default that apply to any Securities
of the series and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section
8.01(b);




     (xix) any depositories, interest rate calculation agents or other agents with respect
to Securities of the series if other than those appointed herein; and




     (xx) any other terms of, or provisions, covenants, rights or other matters applicable
to, the series (which terms, provisions, covenants, rights or other matters will not be
inconsistent with the provisions of this Indenture, except as permitted by Section
10.01(e)).



     (c) All Securities of any one series will be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to below
and (subject to Section 2.04) set forth or determined in the manner provided in the Officer’s
Certificate referred to above or in any such indenture supplemental hereto.



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



20









 





Section 2.02. Form of Securities and Trustee’s Certificate of Authentication.




     (a) The Securities of each series will be in substantially the form set forth in or otherwise
contemplated by the recitals to this Indenture, with appropriate variations to reflect the specific
terms of such series. If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action will be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee concurrently
with or prior to the delivery of the Company Order contemplated by Section 2.04 for the
authentication and delivery of such Securities.



     (b) The definitive Securities will be printed, lithographed, or engraved 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, as
evidenced by their execution of such Securities.



     (c) The Trustee’s certificate of authentication will be in substantially the form set forth in
the recitals to this Indenture.



     (d) Every Global Security authenticated and delivered hereunder will bear a legend in
substantially the form set forth in the recitals to this Indenture.



Section 2.03. Date and Denominations.




     Each Security will be dated the date of its authentication. The Securities of each series
will be issuable only in registered form without coupons in such denominations as may be specified
as contemplated by Section 2.01. In the absence of any such specified denomination with respect to
the Securities of any series, the Securities of such series will be issuable in denominations of
$1,000 and integral multiples thereof.



Section 2.04. Execution, Authentication and Delivery of Securities.




     (a) The Securities will be executed on behalf of the Company by any one of the President, the
Chief Financial Officer, or any Vice President of the Company and attested by the Treasurer, the
Secretary, any Assistant Treasurer, or any Assistant Secretary of the Company under its corporate
seal. The signature of any of these officers on the Securities may be manual or facsimile. The
seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted, or otherwise reproduced on the Securities.



     (b) Only such Securities bearing the Trustee’s certificate of authentication, signed manually
by the Trustee, will be entitled to the benefits of this Indenture or be valid or obligatory for
any purpose. Such execution of the certificate of authentication by the Trustee upon any
Securities executed by the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 2.08, for all purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits of this Indenture.



21









 





     (c) Securities bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company will 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.



     (d) 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 will authenticate and deliver such Securities in accordance with such
Company Order. If the terms or form of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 2.02, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee will be entitled to receive, and (subject to Section 9.01) will be
fully protected in relying upon, an Opinion of Counsel stating:




     (i) if the form of such Securities has been established by or pursuant to a Board
Resolution as permitted by Section 2.02, that such form has been established in conformity
with the provisions of this Indenture;




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




     (iii) 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 binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting
creditors’ rights and by general principles of equity.



     (e) Notwithstanding the provisions of Sections 2.01 and 2.04(d), if all Securities of a series
are not to be originally issued at one time, it will not be necessary to deliver the Officer’s
Certificate otherwise required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to Section 2.04(d) 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.



Section 2.05. Registration of Transfer and Exchange.




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



22









 





     (b) Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company will execute, and the Trustee will
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.



     (c) 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 will execute, and the Trustee
will authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.



     (d) Every Security presented or surrendered for registration of transfer or exchange will (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer, in form reasonably satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.06, 3.05, or 10.06 not involving any transfer. The Company
will not be required (i) to issue, register the transfer of, or exchange Securities of any series
during a period beginning at the opening of business 15 calendar days before the mailing of a
notice of redemption of Securities of that series selected for redemption under Section 3.02(c) and
ending at the close of business on the day of such mailing 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
Securities to be redeemed in part, the portion thereof not being redeemed.



     (e) All Securities issued upon any registration of transfer or exchange of Securities will be
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.



     (f) Notwithstanding any other provision in this Indenture, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary for such Global Security or any nominee thereof, and no such transfer may
be registered, unless:




     (i) such Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or (B) ceases to be a clearing agency registered
under the Exchange Act;




     (ii) the Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable, and exchangeable, and such transfers shall
be registrable;



23









 






     (iii) there shall have occurred and be continuing an Event of Default with respect to
the Securities evidenced by such Global Security; or




     (iv) there shall exist such other circumstances, if any, as have been specified for
this purpose as contemplated by Section 2.01.



     Notwithstanding any other provision in this Indenture, a Global Security to which the
restriction set forth in the preceding sentence shall have ceased to apply may be transferred only
to, and may be registered and exchanged for Securities registered only in the name or names of,
such Person or Persons as the Depositary for such Global Security shall have directed and no
transfer thereof other than such a transfer may be registered. Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security to
which the restriction set forth in the first sentence of this Section 2.05(f) shall apply, whether
pursuant to this Section 2.05, Section 2.06, 2.07, 3.05, or 10.06 or otherwise, will be
authenticated and delivered in the form of, and will be, a Global Security.



Section 2.06. Temporary Securities.




     Pending the preparation of definitive Securities of any series, the Company may execute and
register, and upon Company Order the Trustee will authenticate and deliver, temporary Securities
(printed, lithographed, or typewritten) of any authorized denomination, and substantially in the
form of the definitive Securities but with such omissions, insertions, and variations as may be
appropriate for temporary Securities, all as may be determined by the officers of the Company
executing such Securities as evidenced by their execution of such Securities; provided,
however, that the Company will use reasonable efforts to have definitive Securities of that
series available at the times of any issuance of Securities under this Indenture. Every temporary
Security will be executed and registered by the Company and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities. The Company will execute and register and furnish definitive Securities of such series
as soon as practicable and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor at the office or agency of the Company in the Place of Payment for
that series, and the Trustee will authenticate and deliver in exchange for such temporary
Securities of such series one or more definitive Securities of the same series, of any authorized
denominations, and of a like aggregate principal amount and tenor. Such exchange will be made by
the Company at its own expense and without any charge to the Holder therefor. Until so exchanged,
the temporary Securities of any series authenticated and delivered hereunder will be entitled to
the same benefits under this Indenture as definitive Securities of the same series authenticated
and delivered hereunder.



Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities.




     (a) If any mutilated Security is surrendered to the Trustee, the Company will execute and the
Trustee will 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.



24









 





     (b) If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss, or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company will execute and the Trustee will 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.



     (c) In case any such mutilated, destroyed, lost, or stolen Security 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.



     (d) Upon the issuance of any new Security under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     (e) Every new Security of any series issued pursuant to this Section 2.07 in exchange for any
mutilated Security or in lieu of any destroyed, lost, or stolen Security will constitute an
original additional contractual obligation of the Company, whether or not the mutilated, destroyed,
lost, or stolen Security shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.



     (f) The provisions of this Section 2.07 are exclusive and will preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost, or stolen Securities.



Section 2.08. Cancellation of Surrendered Securities.




     All Securities surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any sinking fund payment will, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and will be promptly cancelled by it. 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 may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered will be promptly cancelled by the Trustee. No Securities will be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 2.08, except as
expressly permitted by this Indenture. The Trustee shall destroy all cancelled Securities held by
the Trustee and shall send a certificate of such destruction to the Company.



Section 2.09. Payment of Interest; Interest Rights Preserved.




     (a) Except as otherwise provided as contemplated by Section 2.01 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date will be paid to the Person in whose



25









 




name that Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.




     (b) Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) will 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 together with interest thereon (to
the extent permitted by law) at the rate of interest applicable to such Security, at its election
in each case, as provided in clause (i) or (ii) below:




     (i) The Company may elect to make payment of any Defaulted Interest (and interest
thereon, if any) to the Persons in whose names the Securities of such series (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 will be fixed in the following
manner. The Company will notify the Trustee in writing of the amount of Defaulted Interest
(and interest thereon, if any) proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company will deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest (and interest thereon, if any) or will 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 (and interest thereon, if any) as in this clause (i) provided. Thereupon the
Trustee will fix a Special Record Date for the payment of such Defaulted Interest (and
interest thereon, if any) which will be not more than 15 calendar days and not less than 10
calendar days prior to the date of the proposed payment and not less than 10 calendar days
after the receipt by the Trustee of the notice of the proposed payment. The Trustee will
promptly notify the Company of such Special Record Date and, in the name and at the expense
of the Company, will cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security Register, not less
than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest (and interest thereon, if any) and the Special Record Date therefor
having been so mailed, such Defaulted Interest will 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 will no longer be payable pursuant to
the following clause (ii).




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



     (c) Subject to the foregoing provisions of this Section 2.09, each Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of any



26









 




other Security will carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.




Section 2.10. Persons Deemed Owners.




     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee,
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 2.09) any interest on such Security and for all other purposes
whatsoever, whether or not such Security shall be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee will be affected by notice to the contrary.



Section 2.11. Computation of Interest.




     Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series will be computed on the basis of a 360-day year
consisting of twelve 30-day months.



Section 2.12. CUSIP Numbers.




     The Company in issuing any series of the Securities may use CUSIP numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice
of redemption or exchange with respect to such series provided that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.



ARTICLE III. REDEMPTION OF SECURITIES.




Section 3.01. Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity will be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.



Section 3.02. Election to Redeem; Notice to Trustee.




     (a) The election of the Company to redeem any Securities will 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 will, at least 60 calendar 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. In the case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in



27









 




this Indenture, the Company will furnish the Trustee with an Officer’s Certificate evidencing
compliance with such restriction.




     (b) Notice of redemption of Securities to be redeemed at the election of the Company will be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company and will be irrevocable. Notice of redemption will be given by mail, first-class
postage prepaid, not less than 30 nor more than 60 calendar days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the Security Register. All
notices of redemption will state:




     (i) the Redemption Date;




     (ii) the Redemption Price;




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




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




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




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




     (vii) the specific provision of this Indenture pursuant to which such Securities are to
be redeemed.



     (c) If less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed will be selected not more than 60 calendar days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee may 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. The Trustee will 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.



     (d) For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities will 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.



28









 





Section 3.03. Deposit of Redemption Price.




     Prior to 10:00 a.m. New York City time on any Redemption Date specified in the notice of
redemption given as provided in Section 3.02, the Company will 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 6.03) 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 of the
Securities that are to be redeemed on that date.



Section 3.04. Securities Payable on Redemption Date.




     (a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed
will, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company defaults in the payment of the Redemption Price and
accrued interest) such Securities will cease to accrue interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security will be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 2.01, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates in accordance with their terms and the provisions of Section
2.09.



     (b) If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium will, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.



Section 3.05. Securities Redeemed in Part.




     Any Security that is to be redeemed only in part will be surrendered at a 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 will execute, and the
Trustee will 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 such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.



ARTICLE IV. SINKING FUNDS.




Section 4.01. Applicability of Article.




     The provisions of this Article IV will be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 2.01 for Securities
of such series. The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment.” If provided for by the



29









 




terms of Securities of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 4.02. Each sinking fund payment with respect to Securities of a
particular series will be applied to the redemption of Securities of such series as provided for by
the terms of Securities of such series.




Section 4.02. 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 Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities will 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 will be reduced accordingly.



Section 4.03. Redemption of Securities for Sinking Fund.




     Not less than 60 calendar days 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, that is to be satisfied by payment of cash and the portion thereof, if
any, that is to be satisfied by delivering and crediting Securities of that series pursuant to
Section 4.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than
30 calendar days before each such sinking fund payment date, the Trustee will select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02(c) 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 3.02(b). Such notice having been duly given, the redemption of
such Securities will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.



ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE.




Section 5.01. Company’s Option to Effect Defeasance or Covenant Defeasance.




     The Company may elect, at its option by Board Resolution at any time, to have either Section
5.02 or Section 5.03 applied to the Outstanding Securities of any series designated pursuant to
Section 2.01 as being defeasible pursuant to this Article V (hereinafter called “Defeasible
Series”), upon compliance with the conditions set forth below in this Article V, provided that
Section 5.02 will not apply to any series of Securities that is exchangeable into Common Stock
pursuant to Section 2.01(b)(xvi) or exchangeable for any other securities pursuant to Section
2.01(b)(xvii).



30









 





Section 5.02. Defeasance and Discharge.




     Upon the Company’s exercise of the option provided in Section 5.01 to have this Section 5.02
applied to the Outstanding Securities of any Defeasible Series and subject to the proviso to
Section 5.01, the Company and the Guarantor will be deemed to have been discharged from their
respective obligations with respect to the Outstanding Securities of such series as provided in
this Section 5.02 on and after the date the conditions set forth in Section 5.04 are satisfied
(hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company will
be deemed to have paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under the Securities of
such series and this Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or discharged hereunder:



     (a) the rights of Holders of Securities of such series to receive, solely from the trust fund
described in Section 5.04 and as more fully set forth in Section 5.04, payments in respect of the
principal of and any premium and interest on such Securities of such series when payments are due;



     (b) the Company’s obligations with respect to the Securities of such series under Sections
2.05, 2.06, 2.07, 6.02, 6.03, and 10.06;



     (c) the rights, powers, trusts, duties, and immunities of the Trustee hereunder; and



     (d) this Article V.



     Subject to compliance with this Article V, the Company may exercise its option provided in
Section 5.01 to have this Section 5.02 applied to the Outstanding Securities of any Defeasible
Series notwithstanding the prior exercise of its option provided in Section 5.01 to have Section
5.03 applied to the Outstanding Securities of such series.



Section 5.03. Covenant Defeasance.




     Upon the Company’s exercise of the option provided in Section 5.01 to have this Section 5.03
applied to the Outstanding Securities of any Defeasible Series:



     (a) the Company will be released from its obligations under Section 6.04, Section 11.01, and
the provisions of any indenture supplemental hereto specified in such supplemental indenture; and



     (b) the occurrence of any event specified in Sections 8.01(a)(iii), 8.01(a)(iv) (with respect
to Section 6.04, Section 11.01, and the provisions of any indenture supplemental hereto specified
in such supplemental indenture), 8.01(a)(v) and 8.01(a)(ix) will be deemed not to be or result in
an Event of Default, in each case with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in Section 5.04 are
satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such



31









 




Covenant Defeasance means that the Company may omit to comply with and will have no liability
in respect of any term, condition, or limitation set forth in any such specified Section (to the
extent specified above in the case of Section 8.01(a)(iv) or in any such specified provision of
such supplemental indenture), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or provision or by reason of any reference in any such Section or
provision to any other provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series will be unaffected thereby.




Section 5.04. Conditions to Defeasance or Covenant Defeasance.




     The following will be the conditions to application of either Section 5.02 or Section 5.03 to
the Outstanding Securities of any Defeasible Series:



     (a) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee that satisfies the requirements contemplated by Section 9.08
and agrees to comply with the provisions of this Article V applicable to it) as trust funds in
trust for the benefit of the Holders of Outstanding Securities of such series




     (i) money in an amount; or




     (ii) U.S. Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, without
reinvestment, not later than one day before the due date of any payment, money in an amount;
or




     (iii) a combination thereof, in each case sufficient to pay and discharge, and which
will be applied by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such series on the
respective Stated Maturities or on any earlier date or dates on which the Securities of such
series shall be subject to redemption and the Company shall have given the Trustee
irrevocable instructions satisfactory to the Trustee to give notice to the Holders of the
redemption of the Securities of such series, all in accordance with the terms of this
Indenture and the Securities of such series.



     (b) In the case of an election under Section 5.02, the Company shall have delivered to the
Trustee an Opinion of Counsel (from a counsel who shall not be an employee of the Company) to the
effect that (i) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or (ii) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon, such
opinion shall confirm that, the Holders of the Outstanding Securities of such series will not
recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance, and
discharge to be effected with respect to the Securities of such series and will be subject to
federal income tax on the same amount, in the same manner, and at the same times as would be the
case if such deposit, Defeasance, and discharge were not to occur.



     (c) In the case of an election under Section 5.03, the Company shall have delivered to the
Trustee an Opinion of Counsel (from a counsel who shall not be an employee of



32









 




the Company) to the effect that the Holders of the Outstanding Securities of such series will
not recognize gain or loss for federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to the Securities of such series and will be subject to
federal income tax on the same amount, in the same manner, and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.




     (d) The Company shall have delivered to the Trustee an Officer’s Certificate to the effect
that (i) the Securities of such series, if then listed on any securities exchange, will not be
delisted solely as a result of such deposit and (ii) such Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under, any agreement to which the
Company is a party or violate any law to which the Company is subject.



     (e) No Event of Default or event that (after notice or lapse of time or both) would become an
Event of Default shall have occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 8.01(a)(vii) and (viii), at any
time on or prior to the 124th calendar day after the date of such deposit (it being understood that
this condition will not be deemed satisfied until after such 124th calendar day).



     (f) Such Defeasance or Covenant Defeasance will not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).



     (g) Such Defeasance or Covenant Defeasance will not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.



     (h) The Company shall have delivered to the Trustee a certificate from a nationally recognized
firm of independent accountants or other Person acceptable to the Trustee expressing their opinion
that the payments of principal and interest when due on the deposited U.S. Government Obligations
without reinvestment plus any deposited money without investment will provide the cash at such
times and in such amounts as will be sufficient to pay the principal of and any premium and
interest when due on the Securities of such series on the respective Stated Maturities or on any
earlier date or dates on which the Securities of such series shall be subject to redemption at the
option of the holder thereof.



     (i) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.



     (j) Such Defeasance or Covenant Defeasance will not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust will be qualified under such Act or will be exempt from
regulation thereunder.




33










 






			
	Section 5.05.	 	Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.





          (a) Subject to the provisions of Section 6.03(e), all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section 5.05 and Section 5.06, the Trustee and any such other trustee are referred
to collectively as the “Trustee”) pursuant to Section 5.04 in respect of the Securities of any
Defeasible Series will be held in trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of Securities of such series, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.




          (b) The Company will pay and indemnify the Trustee against any tax, fee, or other charge
imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 5.04
or the principal and interest received in respect thereof other than any such tax, fee, or other
charge that by law is for the account of the Holders of Outstanding Securities.




          (c) Notwithstanding anything in this Article V to the contrary, the Trustee will deliver or
pay to the Company from time to time upon a Company Request any money or U.S. Government
Obligations held by it as provided in Section 5.04 with respect to Securities of any Defeasible
Series that are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such
series.





			
	Section 5.06.	 	Reinstatement.





          If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article V with respect to the Securities of any series 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 will be
revived and reinstated as though no deposit had occurred pursuant to this Article V with respect to
Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 5.05 with respect to Securities of such series in
accordance with this Article V; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in trust.




34









 








ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY.





			
	Section 6.01.	 	Payment of Principal, Premium and Interest on Securities.





          The Company, for the benefit of each series of Securities, will duly and punctually pay the
principal of and any premium and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.





			
	Section 6.02.	 	Maintenance of Office or Agency.





          (a) The Company will maintain in each Place of Payment for any 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 in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices, and demands.




          (b) The Company may also from time to time designate one or more other offices or agencies
where the Securities of one or more series 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 will in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any series 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.





			
	Section 6.03.	 	Money for Securities Payments to be Held in Trust.





          (a) 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 or any premium or interest 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 any premium and interest 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.




          (b) 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 or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.




          (c) The Company will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent will agree
with the Trustee, subject to the provisions of this Section 6.03, that such Paying

35









 








Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of the Securities of
that series, and upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of that series.




          (d) 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
will be released from all further liability with respect to such money.




          (e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium, or interest has become due and
payable will be paid to the Company upon a Company Request (or, if then held by the Company, will
be discharged from such trust); and the Holder of such Security will 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, will thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein, which will not be less
than 30 calendar days from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.





			
	Section 6.04.	 	Existence.





          Subject to Article XI, the Company will, and will cause each of its Subsidiaries to do or
cause to be done all things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory), and franchises; provided, however, that no
Subsidiary of the Company will be required to preserve its existence, and neither the Company nor
any Subsidiary of the Company will be required to preserve any such right or franchise, if the
Board of Directors of the Company determines that the loss thereof will not result in a Material
Adverse Effect.





			
	Section 6.05.	 	Statement by Officers as to Default.





          The Company will deliver to the Trustee, within 120 calendar days after the end of each fiscal
year of the Company ending after the date hereof, an Officer’s Certificate signed by the principal
executive officer, principal financial officer, or principal accounting officer of the Company
stating whether or not to the knowledge of such person after due inquiry the Company is in default
in the performance and observance of any of the terms, provisions, and

36









 








conditions of this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company is in default, specifying all such defaults and the nature
and status thereof of which such person may have such knowledge.





			
	Section 6.06.	 	Waiver of Certain Covenants.





          The Company may omit in any particular instance to comply with any term, provision, or
condition set forth in Section 6.04 and the provisions of any supplemental indenture specified in
such supplemental indenture, with respect to the Securities of any series if the Holders of a
majority in principal amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision, or condition, but no such waiver will extend to or affect such term, provision, or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term,
provision, or condition will remain in full force and effect.




ARTICLE VII. SECURITIES HOLDERS’ LISTS AND REPORTS BY



THE COMPANY AND THE TRUSTEE.





			
	Section 7.01.	 	Company to Furnish Trustee Names and Addresses of Holders.





          The Company will furnish or cause to be furnished to the Trustee (a) semi-annually, not more
than 15 calendar days after the applicable Regular Record Date, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such Regular Record Date and (b) at such other times as
the Trustee may request in writing, within 30 calendar 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 calendar days prior
to the time such list is furnished; excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.





			
	Section 7.02.	 	Preservation of Information; Communication to Holders.





          (a) The Trustee will 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.




          (b) The rights of the 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, will be as provided by the Trust Indenture Act.




          (c) 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 will be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.




37









 









			
	Section 7.03.	 	Reports by Trustee.





          The Trustee will 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 times and in the
manner provided pursuant thereto. A copy of each such report will, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities
are listed, with the Commission, and with the Company. The Company will promptly notify the
Trustee when any Securities are listed on any stock exchange or of any delisting thereof.





			
	Section 7.04.	 	Reports by Company.





          The Company will file with the Trustee and the Commission, and transmit to Holders, such
information, documents, and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto;
provided that any such information, documents, or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act will be filed with the Trustee
within 15 calendar days after the same is so required to be filed with the Commission.




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




ARTICLE VIII. DEFAULT.





			
	Section 8.01.	 	Event of Default.





          (a) “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 may
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):





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




          (ii) default in the payment of the principal of (or premium, if any, on) any Security
of that series when it becomes due and payable;




          (iii) default in the making of any sinking fund payment in respect of any Security of
that series when it becomes due and payable;




          (iv) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty, a default in the performance or breach
of which is elsewhere in this Section 8.01 specifically dealt



38









 







with or which has expressly been included in this Indenture solely for the benefit of
one or more series of Securities other than that series), and continuance of such default or
breach for a period of 60 calendar 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;




          (v) any nonpayment at maturity or other default is made under any agreement or
instrument relating to any other Indebtedness of the Company (the unpaid principal amount of
which is not less than $100 million), and, in any such case, such default (A) continues
beyond any period of grace provided with respect thereto and (B) results in such
Indebtedness becoming due prior to its stated maturity or occurs at the final maturity of
such Indebtedness; provided, however, that, subject to the provisions of
Section 9.01 and 8.08, the Trustee will not be deemed to have knowledge of such nonpayment
or other default unless either (1) a Responsible Officer of the Trustee has actual knowledge
of nonpayment or other default or (2) the Trustee has received written notice thereof from
the Company, from any Holder, from the holder of any such Indebtedness or from the trustee
under the agreement or instrument relating to such Indebtedness;




          (vi) any Guarantee ceases to be in full force and effect (except as contemplated by the
terms hereof), or any Guarantee is declared in a judicial proceeding to be null and void, or
the Guarantor denies or disaffirms in writing its obligations under the terms of this
Indenture or its Guarantee;




          (vii) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or the Guarantor in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or (B) a decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of or in respect of the Company or the Guarantor under any
applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator, or other similar official of the Company or the Guarantor or of any
substantial part of their respective property, or ordering the winding up or liquidation of
their respective affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive calendar
days;




          (viii) the commencement by the Company or the Guarantor of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or the Guarantor to the entry of a decree or order
for relief in respect of the Company or the Guarantor in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by the Company or



39









 







the Guarantor of a petition or answer or consent seeking reorganization or relief with
respect to the Company or the Guarantor, as applicable, under any applicable federal or
state bankruptcy, insolvency, reorganization, or other similar law, or the consent by the
Company or the Guarantor to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other
similar official of the Company or the Guarantor, as applicable, or of any substantial part
of their respective property pursuant to any such law, or the making by the Company or the
Guarantor of an assignment for the benefit of creditors, or the admission by the Company or
the Guarantor in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or the Guarantor in furtherance of any such
action; or




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



          (b) If an Event of Default (other than an Event of Default arising under Section 8.01(a)(vii)
or (viii)) with respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every 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 any of 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) will become immediately due and payable. If an Event of Default under Section 8.01(a)(vii)
or (viii) occurs, then the principal of, premium, if any, and accrued interest on the Securities
shall become immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.




          (c) 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 VIII 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





          (i) the Company or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of that series, (B) 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 any interest thereon at the rate or
rates prescribed therefor in such Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and (D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements, and advances of the Trustee and its agents
and counsel; and




          (ii) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have



40









 







become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 8.01(d).



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




          (d) The Holders of 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 waive any past default hereunder
with respect to such series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii) in respect of a
covenant or provision hereof which under Article X 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 will cease to exist, and any Event of Default arising therefrom will be deemed to have
been cured, for every purpose of this Indenture, but no such waiver will extend to any subsequent
or other default or impair any right consequent thereon.





			
	Section 8.02.	 	Covenant of Company to Pay to Trustee Whole Amount Due on Securities on Default in
Payment of Interest or Principal; Suits for Enforcement by Trustee.





          (a) The Company covenants that if (i) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues for a period of 30
calendar days or (ii) default is made in the payment of the principal of (or premium, if any, on)
any Security when it becomes due and payable, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as will be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel.




          (b) 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 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.




          (c) In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee will be entitled and empowered, by
intervention in such proceeding or otherwise, 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. In particular, the Trustee will be authorized to collect and receive any money or
other property payable or deliverable on any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator, or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such

41









 








payments to the Trustee and, in the event that the Trustee consents to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee and its agents and counsel, and
any other amounts due the Trustee under Section 9.06.




          (d) No provision of this Indenture will 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.




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





			
	Section 8.03.	 	Application of Money Collected by Trustee.





          Any money collected by the Trustee pursuant to this Article VIII will 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 any premium or interest, upon presentation of the Securities 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 9.06;
	 
	 	 	 	 
	 

	 	SECOND:
	 	To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority
of any kind, except to the extent that the Securities of a series are by their
express terms subordinated and subject in right of payment to the prior payment
of other indebtedness, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
	 
	 	 	 	 
	 

	 	THIRD:
	 	To the Company, its successors or assigns, or to such other Person that may
be lawfully entitled to receive the same.






42









 







			
	Section 8.04.	 	Limitation on Suits by Holders of Securities.





          No Holder of any Security of any series will 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:




          (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 calendar 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 such Holders will have any
right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb, or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of
such Holders.





			
	Section 8.05.	 	Rights and Remedies Cumulative; Delay or Omission in Exercise of Rights not a Waiver
of Event of Default.





          (a) Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost, or stolen Securities in the last paragraph of Section 2.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy will, 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, will not prevent the concurrent assertion or employment of any other
appropriate right or remedy.




          (b) No delay or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default will 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 VIII or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.




43









 









			
	Section 8.06.	 	Rights of Holders of Majority in Principal Amount of Outstanding Securities to Direct
Trustee.





          The Holders of a majority in principal amount of the Outstanding Securities of any series will
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 (a) such direction will not be in conflict
with any rule of law or with this Indenture and (b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.





			
	Section 8.07.	 	Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or
Against the Trustee.





          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, a court may
require any party litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided that neither this Section 8.07 nor the Trust Indenture Act
will be deemed to authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.





			
	Section 8.08.	 	Notice of Defaults.





          If a Default occurs hereunder with respect to Securities of any series, the Trustee will give
the Holders of Securities of such series notice of such Default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any Default of the
character specified in Section 8.01(a)(iv) with respect to Securities of such series no such notice
to Holders will be given until at least 30 calendar days after the occurrence thereof. The Company
will give the Trustee notice of any uncured Event of Default within 10 days after any Responsible
Officer of the Company becomes aware of or receives actual notice of such Event of Default.





			
	Section 8.09.	 	Unconditional Right of Holders to Receive Principal, Premium, and Interest.





          Notwithstanding any other provision in this Indenture, the Holder of any Security will have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 2.09) interest on such Security on the respective Stated 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 may not be impaired without the
consent of such Holder.





			
	Section 8.10.	 	Restoration of Rights and Remedies.





          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee, and the

44









 








Holders will be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue as though no such
proceeding had been instituted.





			
	Section 8.11.	 	Trustee May File Proofs of Claims.





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




ARTICLE IX. CONCERNING THE TRUSTEE.





			
	Section 9.01.	 	Certain Duties and Responsibilities.





          The duties and responsibilities of the Trustee will be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture will 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. 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 will be subject to the provisions of this
Section 9.01.





			
	Section 9.02.	 	Certain Rights of Trustee.





          Subject to the provisions of Section 9.01:




          (a) the Trustee may conclusively rely and will be protected in acting or refraining from
acting upon, whether in its original or facsimile form, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness, or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;




          (b) any request or direction of the Company mentioned herein will be sufficiently evidenced by
a Company Request or Company Order and any resolution of the Board of Directors will be
sufficiently evidenced by a Board Resolution;




45









 








          (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 prescribed) may, in the absence of bad faith
on its part, rely upon an Officer’s Certificate;




          (d) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel will 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 will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture, at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders 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 will not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness, or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it will be entitled to examine the books, records, and premises of the Company,
personally or by agent or attorney, at the sole reasonable cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation;




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




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





			
	Section 9.03.	 	Not Responsible for Recitals or Issuance of Securities.





          The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, may be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent will not be accountable for the use or application by the
Company of Securities or the proceeds thereof.





			
	Section 9.04.	 	May Hold Securities.





          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may

46









 








become the owner or pledgee of Securities and, subject to Sections 9.07 and 9.12, may
otherwise deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar, or such other agent.





			
	Section 9.05.	 	Money Held in Trust.





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





			
	Section 9.06.	 	Compensation and Reimbursement.





          The Company will:




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




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




          (c) indemnify each of the Trustee and any predecessor Trustee for, and hold the Trustee
harmless against, any and all loss, liability, claim, 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.




          When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 8.01(a)(vii) or Section 8.01(a)(viii), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any applicable federal or state bankruptcy, insolvency
or other similar law.





			
	Section 9.07.	 	Disqualification; Conflicting Interests.





          If the Trustee has or acquires a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee will 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 and this Indenture.




47









 









			
	Section 9.08.	 	Corporate Trustee Required; Eligibility.





          There will at all times be one or more Trustees hereunder with respect to the Securities of
each series, at least one of which will be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least $100 million and
its Corporate Trust Office or principal office in New York City, or any other major city in the
United States that is acceptable to the Company. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of a supervising or examining state or
federal authority, then for the purposes of this Section 9.08, the combined capital and surplus of
such Person 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 9.08, it will resign immediately in the manner and
with the effect hereinafter specified in this Article IX.





			
	Section 9.09.	 	Resignation and Removal; Appointment of Successor.





          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article IX will become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 9.10.




          (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 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may at the reasonable
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 fails to comply with Section 9.07 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, (ii) the Trustee ceases to be eligible under Section 9.08 and fails to resign after
written request therefor by the Company or by any such Holder, or (iii) the Trustee becomes
incapable of acting or is adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property is appointed or any public officer takes 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 a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, 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 resigns, is removed, or becomes incapable of acting, or if a vacancy occurs
in the office of Trustee for any cause, with respect to the Securities of one or

48









 








more series, the Company by a Board Resolution will 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 will be only one Trustee with respect to the Securities of any
particular series) and will comply with the applicable requirements of Section 9.10. If, within
one year after such resignation, removal, or incapability or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is 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 will, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 9.10,
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 and
accepted appointment in the manner required by Section 9.10, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, at the reasonable 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.




          (f) The Company will 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 to all Holders of Securities of such series in the manner provided in
Section 14.03. Each notice will include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.





			
	Section 9.10.	 	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 will 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 will become effective and such successor Trustee,
without any further act, deed, or conveyance, will become vested with all the rights, powers,
trusts, and duties of the retiring Trustee, but, on the request of the Company or the successor
Trustee, such retiring Trustee will, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and duties of the retiring Trustee
and will duly assign, transfer, and deliver to such Trustee all property and money held by such
retiring Trustee hereunder.




          (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 will execute and deliver an indenture
supplemental hereto wherein such successor Trustee will accept such appointment and which:





          (i) will contain such provisions as may be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,



49









 







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;




          (ii) if the retiring Trustee is not retiring with respect to all Securities, will
contain such provisions as may 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 will continue to be
vested in the retiring Trustee; and




          (iii) will add to or change any of the provisions of this Indenture as may 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 will
constitute such Trustees co-trustees of the same trust and that each such Trustee will be
trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustees and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee will become
effective to the extent provided therein and each such successor Trustee, without any
further act, deed, or conveyance, will 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 will 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 will execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
applicable rights, powers, and trusts referred to in the preceding paragraphs of this Section 9.10.




          (d) No successor Trustee will accept its appointment unless at the time of such acceptance
such successor Trustee is qualified and eligible under this Article IX.





			
	Section 9.11.	 	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 may be a party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee (including the administration of the trust created by this Indenture), will be
the successor of the Trustee hereunder, provided
such corporation is otherwise qualified and eligible under this Article IX, 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.




50









 









			
	Section 9.12.	 	Preferential Collection of Claims Against Company.





          If and when the Trustee is or becomes a creditor of the Company (or any other obligor upon the
Securities), the Trustee will be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).





			
	Section 9.13.	 	Appointment of Authenticating Agent.





          (a) The Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which will 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 2.07, and Securities so authenticated will be
entitled to the benefits of this Indenture and will 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 will be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50
million and subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section
9.13, the combined capital and surplus of such Authenticating Agent will be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section 9.13, such Authenticating Agent will resign immediately in the manner and with the
effect specified in this Section 9.13.




          (b) 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 may be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent, provided such corporation is otherwise eligible under this Section
9.13, without the execution or filing of any paper or any further act on the part of the Trustee or
the Authenticating Agent.




          (c) 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 this Section
9.13, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the
Company and will mail written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such Authenticating Agent will serve,
as their names and addresses appear in the Security Register.




51









 







Any successor Authenticating Agent upon acceptance of its appointment hereunder will 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 will be appointed
unless eligible under the provisions of this Section 9.13.




          (d) The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 9.13.




          (e) If an appointment with respect to one or more series of Securities is made pursuant to
this Section 9.13, the Securities of such series may have endorsed thereon, in addition to the
Trustee’s certificate of authentication, an alternative form of certificate of authentication in
the following form:




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




	 	 	 	 	 	 	 
	 	 	U.S. Bank National Association,

     as Trustee	 	 
	 
	 	 	 	 	 	 
	Dated:

	 	By:	 	 	 	 
	 

	 	 	 	 

As Authenticating Agent
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 







			
	Section 9.14.	 	Trustee’s Application for Instruction from the Company.





          Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. In the case of any proposed action or omission expressly authorized by this
Indenture, the Trustee shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually receives such application by telecopy, e-mail, or otherwise (provided that
such receipt shall have been confirmed by the Trustee), unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action (or the effective
date in the case of an omission), the Trustee shall have received written instructions in response
to such application specifying the action to be taken or omitted. In the case of any proposed
action or omission that is not expressly authorized by this Indenture, the Trustee shall not take
or refrain from taking any action unless prior to taking or refraining from taking any such action,
the Trustee shall have received written instructions in response to such application specifying the
action to be taken or omitted.




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ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS.





			
	Section 10.01.	 	Purposes for Which Supplemental Indentures May Be Entered Into Without Consent of
Holders.





          Without the consent of or notice to any Holders, the Company, when authorized by a Board
Resolution, the Guarantor, when authorized by 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 or the Guarantor and
the assumption by any such successor of the covenants of the Company or the Guarantor herein
and in the Securities, all to the extent otherwise permitted hereunder;




     (b) to add to the covenants of the Company or the Guarantor 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 the Guarantor;




     (c) to add any additional Events of Default;




     (d) to add to or change any of the provisions of this Indenture to such extent as may
be necessary to permit or facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form;




     (e) to add to, change, or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition, change, or
elimination (i) will neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to such provision or
(ii) will become effective only when there is no such Security Outstanding;




     (f) to establish the terms or form of Securities and the Guarantee of any series as
permitted by Sections 2.01 and 2.02;




     (g) 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 to add to or change any of
the provisions of this Indenture as may be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 9.10; or




     (h) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture,



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provided that such action pursuant to this clause (h) will not adversely affect
the interests of the Holders of Securities of any series in any material respect.




	Section 10.02. Modification of Indenture with Consent of Holders of at Least a Majority in
Principal Amount of Outstanding Securities.





          (a) With the consent of the Holders of 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, the Guarantor and the Trustee, the Company, when authorized by a Board Resolution,
the Guarantor, 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 under this Indenture; provided,
however, that no such supplemental indenture will, without the consent of the Holder of
each Outstanding Security affected thereby:





          (i) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, 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 Maturity thereof pursuant to Section 8.01(b), or change
any Place of Payment where, or the coin or currency in which, any Security or any premium or
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);




          (ii) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or




          (iii) modify any of the provisions of this Section 10.02, Section 8.01(d) or Section
6.06, except to increase the percentage in principal amount of Holders required under any
such Section 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 (iii) will not be deemed to
require the consent of any Holder with respect to changes in the references to “the Trustee”
and concomitant changes in this Section 10.02 and Section 6.06, or the deletion of this
proviso, in accordance with the requirements of Sections 9.10 and 10.01(g).



          (b) 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, will be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.




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          (c) It will not be necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture, but it will be sufficient if such Act
approves the substance thereof.





			
	Section 10.03.	 	Execution of Supplemental Indentures.





          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article X or the modifications thereby of the trusts created by this Indenture,
the Trustee will be entitled to receive, and (subject to Section 9.01) will be fully protected in
relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but will 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 10.04.	 	Effect of Supplemental Indentures.





          Upon the execution of any supplemental indenture under this Article X, this Indenture will be
modified in accordance therewith, and such supplemental indenture will form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder will be bound thereby.





			
	Section 10.05.	 	Conformity with Trust Indenture Act.





          Every supplemental indenture executed pursuant to this Article X will conform to the
requirements of the Trust Indenture Act.





			
	Section 10.06.	 	Reference in Securities to Supplemental Indentures.





          Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article X may, and will if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and 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 XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER.





			
	Section 11.01.	 	Consolidations and Mergers of Company and Sales Permitted Only on Certain Terms.





          (a) The Company shall not consolidate with or merge with or into any other Person, or transfer
(by lease, assignment, sale, or otherwise) all or substantially all of its properties and assets to
another Person unless:





          (i) either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which all or



55









 







substantially all of the properties and assets of the Company are transferred (the
Company or such other Person being referred to as the “Surviving Person”) shall be a
corporation, partnership, limited liability company, business trust, trust or other legal
entity organized and validly existing under the laws of the United States, any State
thereof, or the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, all of the obligations of the Company under the Securities and the
Indenture;




          (ii) immediately after the transaction and the incurrence or anticipated incurrence of
any Indebtedness to be incurred in connection therewith, no Default will exist; and




          (iii) an Officer’s Certificate has been delivered to the Trustee to the effect that the
conditions set forth in the preceding clauses (i) and (ii) have been satisfied and an
Opinion of Counsel (from a counsel who shall not be an employee of the Company) has been
delivered to the Trustee to the effect that the conditions set forth in the preceding clause
(i) have been satisfied.



          (b) The Surviving Person will succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter the predecessor corporation
will be relieved of all obligations and covenants under this Indenture and the Securities.




ARTICLE XII. GUARANTEES





			
	Section 12.01.	 	Guarantees.





          (a) The Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor
and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual
payment when due, whether at maturity, by acceleration, by redemption, by repurchase, or otherwise,
of the principal of, premium, if any, and interest on the Securities (the “Obligations”). The
Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from it, and that it will remain
bound under this Article XII notwithstanding any extension or renewal of any Obligation.




          (b) The Guarantor waives presentation to, demand of payment from and protest to the Company of
any of the Obligations and also waives notice of protest for nonpayment. The Guarantor waives
notice of any default under the Securities or the Obligations. The obligations of the Guarantor
hereunder shall not be affected by:





          (i) the failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise;




          (ii) any extension or renewal of any thereof;



56









 






          (iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement;




          (iv) the release of any security held by any Holder or the Trustee for the Obligations
or any of them;




          (v) the failure of any Holder to exercise any right or remedy against any other
Guarantor; or




          (vi) any change in the ownership of the Company.



          (c) The Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment
when due (and not a Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.




          (d) The obligations of the Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the Obligations in
full), including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of the Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or
demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act or thing or omission or delay to do any
other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor
or would otherwise operate as a discharge of the Guarantor as a matter of law or equity.




          (e) The Guarantor further agrees that its Guarantee herein shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon
the bankruptcy or reorganization of the Company or otherwise.




          (f) In furtherance of the foregoing and not in limitation of any other right which any Holder
has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to
pay any of the Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption, by repurchase or otherwise, the Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law).




          (g) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration

57









 








of such Obligations, such Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purposes of this Guarantee.




          (h) the Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section.





			
	Section 12.02.	 	Limitation on Liability; Termination, Release and Discharge.





          (a) The obligations of the Guarantor hereunder will be limited to those set forth in this
Article XII and to the maximum amount that will, after giving effect to all other contingent and
fixed liabilities of the Guarantor, result in the obligations of the Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.




          (b) The Guarantor may consolidate with or merge into or sell its assets to the Company without
limitation. The Guarantor may consolidate with or merge into or sell its assets to a Person other
than the Company (whether or not an Affiliate of the Guarantor), provided, that upon any such
consolidation, merger or sale to which the Guarantor is a party, other than transactions in which
the Guarantor is the surviving Person, the Obligations shall be expressly assumed by supplemental
indenture executed and delivered to the Trustee, by the Person formed by such consolidation, or
into which the Guarantor shall have been merged, or which shall have acquired such property and the
Guarantor will be deemed released from all its obligations under the Indenture and its Guarantee
and such Guarantee will terminate.




          (c) Upon Defeasance in accordance with Article V hereof or satisfaction and discharge of this
Indenture in accordance with Article XIII hereof, the Guarantor will be released and relieved of
any obligations under its Guarantee and such Guarantee will terminate.





			
	Section 12.03.	 	No Subrogation.





          Notwithstanding any payment or payments made by the Guarantor hereunder, the Guarantor shall
not be entitled to be subrogated to any of the rights of the Trustee or any Holder against the
Company or any collateral security or guarantee or right of offset held by the Trustee or any
Holder for the payment of the Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company in respect of payments made by the Guarantor
hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the
Obligations are paid in full. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by the Guarantor in trust for the Trustee and the Holders, segregated from
other funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Trustee in the exact form received by the Guarantor (duly indorsed by the Guarantor to the
Trustee, if required), to be applied against the Obligations.




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ARTICLE XIII. SATISFACTION AND DISCHARGE OF INDENTURE.





			
	Section 13.01.	 	Satisfaction and Discharge of Indenture.





          This Indenture will upon a Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense the Company, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:




          (a) either:





          (i) all Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost, or stolen and which have been replaced or paid as provided
in Section 2.07 and (B) Securities for the payment of which money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 6.03) have been delivered
to the Trustee for cancellation; or




          (ii) all such Securities not theretofore delivered to the Trustee for cancellation (A)
have become due and payable, (B) will become due and payable at their Stated Maturity within
one year, 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 or the Guarantor, in the case of
clause (A), (B), or (C) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such 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 any premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;



          (b) the Company or the Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company; and




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




          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 9.06, the obligations of the Trustee to any Authenticating
Agent under Section 9.13, and, if money shall have been deposited with the Trustee pursuant to
subclause (ii) of clause (a) of this Section 13.01, the obligations of the Trustee under Sections
6.03(e) and 13.02, will survive.





			
	Section 13.02.	 	Application of Trust Money.





          Subject to the provisions of Section 6.03(e), all money deposited with the Trustee pursuant to
Section 13.01 will be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any

59









 








Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for the
payment of which such money has been deposited with the Trustee; and such money shall be segregated
from other funds to the extent required by law.




ARTICLE XIV. MISCELLANEOUS PROVISIONS.





			
	Section 14.01.	 	Successors and Assigns of Company Bound by Indenture.





          All the covenants, stipulations, promises, and agreements in this Indenture contained by or on
behalf of the Company will bind its successors and assigns, whether so expressed or not.





			
	Section 14.02.	 	Service of Required Notice to Trustee and Company.





          Any request, demand, authorization, direction, notice, consent, waiver, Act of Holders, or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:




          (a) the Trustee by any Holder or by the Company will be sufficient for every purpose hereunder
if made, given, furnished, or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department; or




          (b) the Company by the Trustee or by any Holder will 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 7 West Seventh Street, Cincinnati, Ohio 45202 (marked for the
attention of both the Chief Financial Officer and the General Counsel) or at any other address
previously furnished in writing to the Trustee by the Company.





			
	Section 14.03.	 	Service of Required Notice to Holders; Waiver.





          Where this Indenture provides for notice to Holders of any event, such notice will be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder will affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver will be
the equivalent of such notice. Waivers of notice by Holders will be filed with the Trustee, but
such filing will not be a condition precedent to the validity of any action taken in reliance upon
such waiver. In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as may be made
with the approval of the Trustee will constitute a sufficient notification for every purpose
hereunder.




60









 









			
	Section 14.04.	 	Indenture and Securities to be Construed in Accordance with the Laws of the State of
New York.





          This Indenture and the Securities will be deemed to be a contract made under the laws of the
State of New York, and for all purposes will be construed in accordance with the laws of said State
without giving effect to principles of conflict of laws of such State.





			
	Section 14.05.	 	Compliance Certificates and Opinions.





          Upon any application or request by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company will furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion will
be given in the form of an Officer’s Certificate, if to be given by an officer of the Company, an
Opinion of Counsel, if to be given by counsel, or a certificate or opinion of an accountant, if to
be given by an accountant or accounting firm, and will comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.





			
	Section 14.06.	 	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. 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 14.07.	 	Payments Due on Non-Business Days.





          In any case where any Interest Payment Date, Redemption Date, or Stated 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 (other than a provision of the Securities of any
series which specifically states that such provision will apply in lieu of this Section 14.07))
payment of interest or principal (and premium, 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, provided that interest will accrue for the period from and after such Interest
Payment Date, Redemption Date, or Stated Maturity, as the case may be.





			
	Section 14.08.	 	Provisions Required by Trust Indenture Act to Control.





          If any provision of this Indenture limits, qualifies, or conflicts with the duties imposed on
any Person by Sections 310 through 317, inclusive, of the Trust Indenture Act (including provisions
automatically deemed included in this Indenture pursuant to the Trust Indenture Act unless this
Indenture provides that such provisions are excluded), which are

61









 








deemed to be a part of and govern this Indenture, whether or not contained herein, then such
imposed duties will control.





			
	Section 14.09.	 	Invalidity of Particular Provisions.





          In case any one or more of the provisions contained in this Indenture or in the Securities is
for any reason held to be invalid, illegal, or unenforceable in any respect, such validity,
illegality, or enforceability will not affect any other provision of this Indenture or of the
Securities, but this Indenture and such Securities will be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.





			
	Section 14.10.	 	Indenture May be Executed In Counterparts.





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





			
	Section 14.11.	 	Acts of Holders; Record Dates.





          (a) Any request, demand, authorization, direction, notice, consent, waiver, or other action
provided or permitted by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments (including instruments in electronic, digital or other
machine-readable form) of substantially similar tenor signed (including signatures in electronic,
digital or other machine-readable form) by such Holders in person or by agent duly appointed in
writing (including writings in electronic, digital or other machine-readable form); and, except as
herein otherwise expressly provided, such action will become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of signature of any such instrument or of a writing appointing any such agent
will be sufficient for any purpose of this Indenture and (subject to Section 9.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Section 14.11.




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




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




          (d) Any request, demand, authorization, direction, notice, consent, waiver, or other Act of
the Holder of any Security will bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange

62









 








thereof or in lieu thereof in respect of anything done, omitted, or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Security.




          (e) The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as
the record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or
other action provided or permitted by this Indenture to be given or taken by Holders of Securities
of such series. With regard to any record date set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date (or their duly appointed agents),
and only such Persons, will be entitled to give or take the relevant action, whether or not such
Holders remain Holders after such record date. With regard to any action that may be given or
taken hereunder only by Holders of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no such action
purported to be given or taken by any Holder will be effective hereunder unless given or taken on
or prior to such expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph will prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such expiration date, any action
identical to, or, at any time, contrary to or different from, the action or purported action to
which such expiration date relates, in which event the Company may set a record date in respect
thereof pursuant to this paragraph. Nothing in this Section 14.11(e) will be construed to render
ineffective any action taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on the date such action
is so taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company will not set a
record date for, and the provisions of this Section 14.11(e) will not apply with respect to, any
notice, declaration, or direction referred to in the next paragraph.




          (f) Upon receipt by the Trustee from any Holder of Securities of a particular series of (a)
any notice of default or breach referred to in Section 8.01(a)(iv) or 8.01(a)(v) with respect to
Securities of such series, if such default or breach has occurred and is continuing and the Trustee
shall not have given such notice to the Company, (b) any declaration of acceleration referred to in
Section 8.01(b), if an Event of Default with respect to Securities of such series has occurred and
is continuing and the Trustee shall not have given such a declaration to the Company, or (c) any
direction referred to in Section 8.06 with respect to Securities of such series, if the Trustee
shall not have taken the action specified in such direction, then a record date will automatically
and without any action by the Company or the Trustee be set for determining the Holders of
Outstanding Securities of such series entitled to join in such notice, declaration, or direction,
which record date will be the close of business on the tenth calendar day following the day on
which the Trustee receives such notice, declaration, or direction. Promptly after such receipt by
the Trustee, and in any case not later than the fifth calendar day thereafter, the Trustee will
notify the Company and the Holders of Outstanding Securities of such series of any such record date
so fixed. The Holders of Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, will be entitled to join in such notice,

63









 








declaration, or direction, whether or not such Holders remain Holders after such record date;
provided that, unless such notice, declaration, or direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having joined therein on or prior to the 90th
calendar day after such record date, such notice, declaration, or direction will automatically and
without any action by any Person be cancelled and of no further effect. Nothing in this Section
14.11(f) will be construed to prevent a Holder (or a duly appointed agent thereof) from giving,
before or after the expiration of such 90-day period, a notice, declaration, or direction contrary
to or different from, or, after the expiration of such period, identical to, the notice,
declaration, or direction to which such record date relates, in which event a new record date in
respect thereof will be set pursuant to this Section 14.11(f). Nothing in this Section 14.11(f)
will be construed to render ineffective any notice, declaration, or direction of the type referred
to in this Section 14.11(f) given at any time to the Trustee and the Company by Holders (or their
duly appointed agents) of the requisite principal amount of Outstanding Securities of the relevant
series on the date such notice, declaration, or direction is so given.




          (g) Without limiting the foregoing, a Holder entitled hereunder to give or 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 different part of such principal amount.





			
	Section 14.12.	 	Effect of Headings and Table of Contents.





          The Article and Section headings herein and the Table of Contents are for convenience only and
will not affect the construction hereof.





			
	Section 14.13.	 	Benefits of Indenture.





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




 








64









 








          In Witness Whereof, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.




	 	 	 	 	 	 	 	 	 	 	 
	[Seal]	 	 	 	 	 	FEDERATED RETAIL HOLDINGS, INC.,
	 	 	 	 	 	 	as Issuer
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	/s/ Karen M. Hoguet
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	Karen M. Hoguet
	 

	 	 	 	 	 	 	 	Title:
	 	Vice President and
	 

	 	 	 	 	 	 	 	 	 	Chief Financial Officer
	Attest:

	 	/s/ Susan P. Storer
 

	 	 	 	 	 	 	 	 
	Name:

	 	Susan P. Storer	 	 	 	 	 	 	 	 
	Title:

	 	OVP-Assistant Treasurer	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	[Seal]	 	 	 	 	 	FEDERATED DEPARTMENT STORES, INC.,
	 	 	 	 	 	 	as Guarantor
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	/s/ Karen M. Hoguet
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	Karen M. Hoguet
	 

	 	 	 	 	 	 	 	Title:
	 	Executive Vice President and
	 

	 	 	 	 	 	 	 	 	 	Chief Financial Officer
	Attest:

	 	/s/ Susan P. Storer
 

	 	 	 	 	 	 	 	 
	Name:

	 	Susan P. Storer	 	 	 	 	 	 	 	 
	Title:

	 	OVP-Assistant Treasurer	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	U.S. BANK NATIONAL ASSOCIATION,
	 	 	 	 	 	 	as Trustee
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	/s/ Earl W. Dennison Jr.
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	Earl W. Dennison Jr.
	 

	 	 	 	 	 	 	 	Title:
	 	Vice President
	Attest:

	 	/s/ Andrew M. Sinasky
 

	 	 	 	 	 	 	 	 
	Name:

	 	Andrew M. Sinasky	 	 	 	 	 	 	 	 
	Title:

	 	Assistant Vice President	 	 	 	 	 	 	 	 






65









 






	 	 	 
	STATE OF OHIO

	 	§
	 

	 	§
	COUNTY OF HAMILTON

	 	§






          On
this 2nd day of November, 2006, before me personally came Karen M. Hoguet, to me known,
who, being by me duly sworn, did depose and say that she is a Vice President and Chief Financial
Officer of FEDERATED RETAIL HOLDINGS, INC., one of the entities described in and which executed the
above instrument; that she knows the seal of said entity; that the seal or a facsimile thereof
affixed to said instrument in such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that she signed her name thereto by like authority.




          IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.




	 	 	 	 	 
	 

	 	/s/ Dianne M. Webber
 

Notary Public, State of Ohio
	 	[Seal] 






66









 






	 	 	 
	STATE OF OHIO

	 	§
	 

	 	§
	COUNTY OF HAMILTON

	 	§






          On
this 2nd day of November, 2006, before me personally came Karen M.
Hoguet, to me known, who, being by me duly sworn, did depose and say that she is an Executive Vice President and Chief Financial Officer of FEDERATED DEPARTMENT STORES, INC., one of the entities described in and which
executed the above instrument; that she knows the seal of said entity; that the seal or a facsimile
thereof affixed to said instrument in such seal; that it was so affixed by authority of the Board
of Directors of said entity, and that she signed her name thereto by like authority.




          IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.




	 	 	 	 	 
	 

	 	/s/ Dianne M. Webber
 

Notary Public, State of Ohio
	 	[Seal] 






67









 






	 	 	 
	COMMONWEALTH OF MASSACHUSETTS

	 	§
	 

	 	§
	COUNTY OF SUFFOLK

	 	§






          On
this 2nd day of November, 2006, before me personally came Earl W. Dennison Jr., to me
known, who, being by me duly sworn, did depose and say that he/she is a Vice President of U.S. BANK
NATIONAL ASSOCIATION, one of the entities described in and which executed the above instrument,
that he/she signed his/her name thereto by authority of the Board of Directors of said entity.




          IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.




	 	 	 	 	 
	 

	 	/s/ Jordan D. Musser
 

Notary Public, Commonwealth of
     Massachusetts
	 	[Seal] 







68