EX-4.4



 





Exhibit 4.4









W. R. BERKLEY CORPORATION




TO




THE BANK OF NEW YORK, as Trustee










THIRD SUPPLEMENTAL INDENTURE TO

INDENTURE DATED FEBRUARY 14, 2003

(SENIOR DEBT SECURITIES)




Dated as of August 24, 2004










6.150% Senior Notes due 2019




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Relation to Indenture; Definitions	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.1.
	 	RELATION TO INDENTURE	 	 	1	 
	Section 1.2.
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	The Series of Securities	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1.
	 	TITLE OF THE SECURITIES	 	 	2	 
	Section 2.2.
	 	LIMITATION ON AGGREGATE PRINCIPAL AMOUNT	 	 	2	 
	Section 2.3.
	 	PRINCIPAL PAYMENT DATE	 	 	2	 
	Section 2.4.
	 	INTEREST AND INTEREST RATES	 	 	2	 
	Section 2.5.
	 	PLACE OF PAYMENT	 	 	3	 
	Section 2.6.
	 	REDEMPTION	 	 	3	 
	Section 2.7.
	 	DENOMINATION	 	 	5	 
	Section 2.8.
	 	CURRENCY	 	 	5	 
	Section 2.9.
	 	FORM OF NOTES	 	 	5	 
	Section 2.10.
	 	REGISTRAR AND PAYING AGENT FOR THE NOTES	 	 	5	 
	Section 2.11.
	 	SINKING FUND OBLIGATIONS	 	 	5	 
	Section 2.12.
	 	DEFEASANCE AND COVENANT DEFEASANCE	 	 	5	 
	Section 2.13.
	 	PAYMENT OF TAXES	 	 	5	 
	Section 2.14.
	 	LIMITATION ON LIENS ON STOCK OF PRINCIPAL SUBSIDIARIES	 	 	5	 
	Section 2.15.
	 	LIMITATIONS ON ISSUE OR DISPOSITION OF COMMON STOCK OF PRINCIPAL SUBSIDIARIES	 	 	6	 
	Section 2.16.
	 	IMMEDIATELY AVAILABLE FUNDS	 	 	6	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Miscellaneous Provisions	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1.
	 	TRUSTEE NOT RESPONSIBLE FOR RECITALS	 	 	6	 
	Section 3.2.
	 	PAYMENT OF EXPENSES UPON RESIGNATION OR REMOVAL	 	 	7	 
	Section 3.3.
	 	ADOPTION, RATIFICATION AND CONFIRMATION	 	 	7	 
	Section 3.4.
	 	COUNTERPARTS	 	 	7	 
	Section 3.5.
	 	GOVERNING LAW	 	 	7	 






 









 






W. R. BERKLEY CORPORATION




THIRD SUPPLEMENTAL INDENTURE TO

INDENTURE DATED FEBRUARY 14, 2003

(SENIOR DEBT SECURITIES)




$150,000,000




6.150% Senior Notes due 2019




          THIRD SUPPLEMENTAL INDENTURE, dated as of August 24, 2004 between W. R. BERKLEY CORPORATION, a
Delaware corporation (the “Company”), and THE BANK OF NEW YORK, a trust company organized under the
laws of the State of New York, as Trustee (the “Trustee”).




RECITALS




          The Company has heretofore executed and delivered to the Trustee an indenture for senior debt
securities, dated as of February 14, 2003 (the “Indenture”), providing for the issuance from time
to time of series of the Company’s Securities.




          Section 3.1 of the Indenture provides for various matters with respect to any series of
Securities issued under the Indenture to be established in an indenture supplemental to the
Indenture.




          Section 9.1(4) of the Indenture provides for the Company and the Trustee to enter into an
indenture supplemental to the Indenture to establish the form or terms of Securities of any series
as provided by Sections 2.1 and 3.1 of the Indenture.




          NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:




          For and in consideration of the premises and the issuance of the series of Securities provided
for herein, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities of such series, as follows:




ARTICLE I




RELATION TO INDENTURE; DEFINITIONS




          Section 1.1. RELATION TO INDENTURE. This Third Supplemental Indenture constitutes an integral
part of the Indenture.




          Section 1.2. DEFINITIONS. For all purposes of this Third Supplemental Indenture:




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          (a) Capitalized terms used herein without definition shall have the meanings specified in the
Indenture;




          (b) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Third Supplemental Indenture; and




          (c) The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this
Third Supplemental Indenture.




          (d) “Fair Value,” when used with respect to Common Stock, means the fair value thereof as
determined in good faith by the Board of Directors.




ARTICLE II




THE SERIES OF SECURITIES




          Section 2.1. TITLE OF THE SECURITIES. There shall be a series of Securities designated the
“6.150% Senior Notes due 2019” (the “Notes”).




          Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate principal amount of the
Notes shall initially be limited to $150,000,000. The Company may, without the consent of the
Holders of the Notes, issue additional Securities having the same interest rate, maturity date and
other terms as described in the related prospectus supplement and prospectus. Any additional
Securities, together with the Notes offered by the related prospectus supplement, will constitute a
single series of Securities under the Indenture. No additional Securities may be issued if an Event
of Default under the Indenture has occurred and is continuing with respect to the Securities.




          Section 2.3. PRINCIPAL PAYMENT DATE. The principal amount of the Notes outstanding (together
with any accrued and unpaid interest) shall be payable in a single installment on August 15, 2019,
which date shall be the Stated Maturity of the Notes Outstanding.




          Section 2.4. INTEREST AND INTEREST RATES. The rate of interest on each Note shall be 6.150%
per annum, accruing from August 24, 2004, or from the most recent interest payment date (each such
date, an “Interest Payment Date”) to which interest has been paid or duly provided for, payable
semiannually in arrears on February 15 and August 15 of each year commencing February 15, 2005
until the principal thereof shall have become due and payable, and until the principal thereof is
paid or duly provided for or made available for payment. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. The
amount of interest payable for any partial period shall be computed on the basis of the actual
number of days elapsed in a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on any Note is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay). The interest installment so payable in respect of
any Note, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in the Indenture, be paid to




2









 








the person in whose name such Note (or one or more Predecessor Securities) is registered at
the close of business on February 1 or August 1 prior to such Interest Payment Date. Any such
interest installment not punctually paid or duly provided for in respect of any Note shall
forthwith cease to be payable to the registered Holder on such Regular Record Date and may either
be paid to the Person in whose name such Note (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest, notice whereof shall be given to the Holders of the Notes not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided in the Indenture.




          Section 2.5. PLACE OF PAYMENT. The Place of Payment where the Notes may be presented or
surrendered for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demand to or upon the Company in respect of the Notes and the
Indenture may be served shall be the Corporate Trust Office of the Trustee.




          Section 2.6. REDEMPTION.




          (a) The Company may redeem the Notes, in whole or in part, at any time at a Redemption Price
equal to the greater of (i) 100% of the principal amount of such Securities to be redeemed or (ii)
an amount, as determined by an Independent Investment Banker, equal to the sum of the present
values of the remaining scheduled payments of principal of and interest on the securities to be
redeemed (not including any portion of such payments of interest accrued as of the date of
redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 30 basis points, plus, in
either of the above cases, accrued and unpaid interest thereon to, but not including, the
Redemption Date.




          (b) For the purposes of this Section 2.6,




          “Adjusted Treasury Rate” means, with respect to any Redemption Date:





	 	- 	the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated “H.15(519)” published by the Board of Governors
of the Federal Reserve System (or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity) under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury Issue.
If no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or




3









 






	 	   	extrapolated from such yields on a straight line basis, rounding to the
nearest month; or
	 
	 	- 	if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.





          The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the
Redemption Date.




          “Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such securities (“Remaining Life”).




          “Comparable Treasury Price” means (i) the average of three Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (ii) if the Independent Investment Banker obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such quotations.




          “Independent Investment Banker” means one of the Reference Treasury Dealers appointed by us.




          “Reference Treasury Dealer” means:





	 	- 	each of Morgan Stanley & Co. Incorporated and Deutsche Bank Securities Inc.
and their respective successors; provided that, if any of the foregoing ceases
to be a primary U.S. Government securities dealer in the United States (a
“Primary Treasury Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer; and
	 
	 	- 	 any other Primary Treasury Dealer selected by the Company.





          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York
City Time, on the third Business Day preceding such Redemption Date.




          The Company will mail a notice of redemption at least 30 days but not more than 60 days before
the Redemption Date to each holder of the notes to be redeemed. If less than all




4









 








of the notes are to be redeemed, the trustee will select, by such method as it will deem fair
and appropriate, including pro rata or by lot, the notes to be redeemed in whole or in part.




          Unless the Company defaults in payment of the Redemption Price, on and after the Redemption
Date, interest will cease to accrue on the notes or portions thereof called for redemption.




          Section 2.7. DENOMINATION. The Notes shall be issuable only in registered form without
coupons and in denominations of $1,000 and integral multiples thereof.




          Section 2.8. CURRENCY. Principal and interest on the Notes shall be payable in such coin or
currency of the United States of America that at the time of payment is legal tender for payment of
public and private debts.




          Section 2.9. FORM OF NOTES. The Notes shall be substantially in the form attached as EXHIBIT
A hereto.




          Section 2.10. REGISTRAR AND PAYING AGENT FOR THE NOTES. The Trustee shall serve initially as
Registrar and Paying Agent for the Notes.




          Section 2.11. SINKING FUND OBLIGATIONS. The Company has no obligation to redeem or purchase
any Notes pursuant to any sinking fund or analogous requirement or upon the happening of a
specified event or at the option of a Holder thereof.




          Section 2.12. DEFEASANCE AND COVENANT DEFEASANCE. The Company has elected to have both
Section 4.2(2) of the Indenture (relating to defeasance) and Section 4.2(3) (relating to covenant
defeasance) applied to the Notes.




          Section 2.13. PAYMENT OF TAXES. The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and lawful claims for labor, materials and supplies,
which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment or governmental charge whose amount, applicability or
validity is being contested in good faith by appropriate proceedings or where the failure to effect
such payment is not adverse in any material respect to the Holders of the Notes.




          Section 2.14. LIMITATION ON LIENS ON STOCK OF PRINCIPAL SUBSIDIARIES. The Company will not,
and it will not permit any Subsidiary of the Company to, at any time directly or indirectly create,
assume, incur or permit to exist any Indebtedness secured by a pledge, lien or other encumbrance
(any pledge, lien or other encumbrance being hereinafter in this Section referred to as a “lien”)
on the voting securities of Principal Subsidiaries, or the voting securities of a Subsidiary that
owns, directly or indirectly, the voting securities of any of the Principal Subsidiaries without
making effective provision whereby the Notes then Outstanding (and, if the Company so elects, any
other Indebtedness of the Company




5









 








that is not subordinate to the Notes and with respect to which the governing instruments
require, or pursuant to which the Company is otherwise obligated or required, to provide such
security) shall be equally and ratably secured with such secured Indebtedness so long as such other
Indebtedness shall be secured. For purposes of this Section 2.14 only, “Indebtedness”, in addition
to those items specified in Section 1.1 of the Indenture, shall include any obligation of, or any
such obligation guaranteed by, any Person for the payment of amounts due under a swap agreement or
other similar instrument or agreement or foreign currency hedge exchange or similar instrument or
agreement.




          If the Company shall hereafter be required to secure the Notes equally and ratably with any
other Indebtedness pursuant to this Section, (i) the Company will promptly deliver to the Trustee
an Officer’s Certificate stating that the foregoing covenant has been complied with, and an Opinion
of Counsel stating that in the opinion of such counsel the foregoing covenant has been complied
with and that any instruments executed by the Company or any Subsidiary of the Company in the
performance of the foregoing covenant comply with the requirements of the foregoing covenant and
(ii) the Trustee is hereby authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to enforce the rights of the
holders of the Notes so secured.




          Section 2.15. LIMITATIONS ON ISSUE OR DISPOSITION OF COMMON STOCK OF PRINCIPAL SUBSIDIARIES.
As long as any of the Notes remain outstanding, the Company will not, and will not permit any
Subsidiary to, issue, sell, assign, transfer or otherwise dispose of, directly or indirectly, any
of the Common Stock of any Principal Subsidiary (except to the Company or to one or more
Subsidiaries or for the purpose of qualifying directors); provided, however, that this covenant
shall not apply if (i) the issuance, sale, assignment, transfer or other disposition is required to
comply with the order of a court or regulatory authority of competent jurisdiction, other than an
order issued at the request of the Company or of one of its Subsidiaries; (ii) the entire Common
Stock of a Principal Subsidiary then owned by the Company or by its Subsidiaries is disposed of in
a single transaction or in a series of related transactions, for consideration consisting of cash
or other property which is at least equal to the Fair Value of such Common Stock; or (iii) after
giving effect to the issuance, sale, assignment, transfer or other disposition, the Company and its
Subsidiaries would own directly or indirectly at least 80% of the issued and outstanding Common
Stock of such Principal Subsidiary and such issuance, sale, assignment, transfer or other
disposition is made for consideration consisting of cash or other property which is at least equal
to the Fair Value of such Common Stock.




          Section 2.16. IMMEDIATELY AVAILABLE FUNDS. All payments of principal and interest shall be
made in immediately available funds.




ARTICLE III




MISCELLANEOUS PROVISIONS




          Section 3.1. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals herein contained are made by
the Company and not by the Trustee, and the Trustee assumes no




6









 








responsibility for the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this Third Supplemental Indenture.




          Section 3.2. PAYMENT OF EXPENSES UPON RESIGNATION OR REMOVAL. Upon termination of this Third
Supplemental Indenture or the Indenture or the removal or resignation of the Trustee, unless
otherwise stated, the Company shall pay to the Trustee all amounts accrued to the date of such
termination, removal or resignation.




          Section 3.3. ADOPTION, RATIFICATION AND CONFIRMATION. The Indenture, as supplemented and
amended by this Third Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.




          Section 3.4. COUNTERPARTS. This Third Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.




          Section 3.5. GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.




7









 








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



	 	 	 	 	 
	 	W. R. BERKLEY CORPORATION

 	 
	 	By:  	/s/ William R. Berkley, Jr.
 	 
	 	 	Name:  	William R. Berkley, Jr. 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK, as Trustee

 	 
	 	By:  	/s/ Stacey B. Poindexter
 	 
	 	 	Name:  	Stacey B. Poindexter 	 
	 	 	Title:  	Assistant Vice President 	 




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EXHIBIT A




(FORM OF FACE OF NOTE)




          This Note is a global Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of a Depository or a nominee of a Depository. This Note is exchangeable for
Securities registered in the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Indenture, and no transfer of this Note (other than a
transfer of this Note as a whole by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the Depository) may be registered except
in limited circumstances.




          Unless this Note is presented by an authorized representative of The Depository Trust Company
(55 Water Street, New York, New York) to the issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.




	 	 	 	 	 
	Certificate No. 3

	 	$150,000,000
	Dated: August 24, 2004

	 	CUSIP No. 084423AL6







W. R. BERKLEY CORPORATION




6.150% Senior Notes due 2019




          W. R. BERKLEY CORPORATION, a Delaware corporation (the “Company,” which term includes any
successor corporation under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO. or registered assigns, the principal sum of ONE HUNDRED FIFTY MILLION
DOLLARS AND NO CENTS ($150,000,000.00) on August 15, 2019. The Company further promises to pay
interest on said principal sum outstanding from August 24, 2004, or from the most recent interest
payment date (each such date, an “Interest Payment Date”) to which interest has been paid or duly
provided for, semiannually (subject to deferral as set forth herein) in arrears on February 15 and
August 15 of each year commencing February 15, 2005 at the rate of 6.150% per annum, until the
principal hereof shall have become due and payable and, until the principal hereof is paid or duly
provided for or made available for payment. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day months. The amount of
interest payable for any partial period shall be computed on the basis of the number of actual days
elapsed in a 360-day year of twelve 30-day months. In the event that any date on which interest is
payable on this Note is not a Business Day, then payment of interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay). A “Business Day,” with respect to any Place of




A-1









 








Payment or other location, shall mean any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or other location are authorized or obligated
by law, regulation or executive order to close. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the
close of business on February 1 or August 1 prior to such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holder on such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice
whereof shall be given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.




          The principal of (and premium, if any) and the interest on this Note shall be payable at the
office or agency of the Company maintained for that purpose in the United States in such coin or
currency of the United States of America that at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that payment of interest may be made at the option of
the Company by check mailed to the registered Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the Holder of this Note is Cede & Co.,
the payment of the principal of (and premium, if any) and interest on this Note will be made at
such place and to such account as may be designated by Cede & Co. All payments of principal and
interest hereunder shall be made in immediately available funds.




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




          Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid for any purpose.




A-2









 








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



	 	 	 	 	 
	 	W. R. BERKLEY CORPORATION

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








CERTIFICATE OF AUTHENTICATION




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




Dated: August 24, 2004




THE BANK OF NEW YORK,

as Trustee




By:                                        

     Authorized Signatory





A-3









 








(FORM OF REVERSE OF NOTE)




          This Note is one of a duly authorized issue of securities of the Company, designated as its
6.150% Senior Notes due 2019 (herein referred to as the “Securities”), issued under and pursuant to
an Indenture, dated as of February 14, 2003 between the Company and The Bank of New York, as
Trustee (herein called the “Trustee,” which term includes any successor trustee under the
Indenture), as supplemented by the Third Supplemental Indenture dated as of August 24, 2004,
between the Company and the Trustee (the Indenture as so supplemented, the “Indenture”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities, and of the terms upon which the Securities are, and are
to be, authenticated and delivered.




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



               The Company may redeem the Securities, in whole or in part, at any time at a
Redemption Price equal to the greater of (i) 100% of the principal amount of such
Securities to be redeemed or (ii) an amount, as determined by an Independent Investment
Banker, the sum of the present values of the remaining scheduled payments of principal of
and interest thereon on the securities to be redeemed (not including any portion of such
payments of interest accrued to the date of redemption) discounted to the Redemption Date
on a semiannual basis assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus 30 basis points, plus, in either of the above cases, accrued
and unpaid interest thereon to the Redemption Date.



          “Adjusted Treasury Rate” means, with respect to any Redemption Date:





	 	- 	the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated “H.15(519)” published by the Board of Governors
of the Federal Reserve System (or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity) under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury Issue.
If no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month; or
	 
	 	- 	 if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semiannual equivalent yield to maturity of the




A-4









 






	 	   	Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such Redemption Date.





          The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the
Redemption Date.




          “Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such securities (“Remaining Life”).




          “Comparable Treasury Price” means (i) the average of three Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (ii) if the Independent Investment Banker obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such quotations.




          “Independent Investment Banker” means one of the Reference Treasury Dealers appointed by us.




          “Reference Treasury Dealer” means:





	 	- 	each of Morgan Stanley & Co. Incorporated and Deutsche Bank Securities Inc.
and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in the
United States (a “Primary Treasury Dealer”), the Company shall substitute
therefor another Primary Treasury Dealer; and
	 
	 	- 	any other Primary Treasury Dealer selected by the Company.





          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York
City Time, on the third Business Day preceding such Redemption Date.




          The Company will mail a notice of redemption at least 30 days but not more than 60 days before
the Redemption Date to each holder of the securities to be redeemed. If less than all of the
securities are to be redeemed, the Trustee will select, by such method as it will deem fair and
appropriate, including pro rata or by lot, the securities to be redeemed in whole or in part.




          Unless we default in payment of the Redemption Price, on and after the Redemption Date,
interest will cease to accrue on the securities or portions thereof called for redemption.




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          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, with the effect and subject to the conditions provided in the Indenture.




          The Indenture contains provisions for satisfaction, discharge and defeasance at any time of
the entire indebtedness of this Note upon compliance by the Company with certain conditions set
forth in the Indenture.




          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities of each
series at the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting 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 Note
shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note. No reference herein to
the Indenture and no provision of this Note or of the Indenture (other than Section 4.2 of the
Indenture) shall alter or impair the obligation of the Company to pay the principal and interest on
the Note 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 Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained under Section 10.2 of
the Indenture 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
or her attorney duly authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.




          Prior to due presentment of this Note 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 Note is
registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.




          This global Note is exchangeable for Securities in definitive form only under certain limited
circumstances set forth in the Indenture. Securities of this series so issued are issuable only in
registered form without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations herein and therein set forth,
Securities of this series so issued are exchangeable for a like aggregate principal




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amount of Securities of this series of a different authorized denomination, as requested by
the Holder surrendering the same.




          The Company and, by its acceptance of this Note or a beneficial interest therein, the Holder
of, and any Person that acquires a beneficial interest in, this Note agree that for United States
federal, state and local tax purposes it is intended that this Note constitute indebtedness.




          THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE SECURITIES
WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.




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