EX-4.2



 





Exhibit 4.2




FORM OF GUARANTEED INDENTURE




[TAM CAPITAL INC./TAM S.A./TAM LINHAS AÉREAS S.A.],

Issuer,




[TAM S.A./TAM LINHAS AÉREAS S.A.,

Guarantor, ]




and




[                          ],

Trustee




INDENTURE




Dated as of [                         ], 200[        ]




[Guaranteed] Debt Securities





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 1.01
	 	Definitions of Terms	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.01
	 	Designation and Terms of Securities
	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.02
	 	Form of Securities and Trustee’s Certificate
	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.03
	 	Denominations; Provisions for Payment
	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.04
	 	Execution and Authentications
	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.05
	 	Registration of Transfer and Exchange
	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.06
	 	Temporary Securities
	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.07
	 	Mutilated, Destroyed, Lost or Stolen Securities
	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.08
	 	Cancellation
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.09
	 	Benefits of Indenture
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.10
	 	Authenticating Agent
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.11
	 	Global Securities
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.01
	 	Redemption
	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.02
	 	Notice of Redemption
	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.03
	 	Payment Upon Redemption
	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.04
	 	Sinking Fund	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.05
	 	Satisfaction of Sinking Fund Payments with Securities
	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.06
	 	Redemption of Securities for Sinking Fund
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV COVENANTS	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.01
	 	Payment of Principal, Premium and Interest
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.02
	 	Maintenance of Office or Agency
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.03
	 	Paying Agents
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.04
	 	Appointment to Fill Vacancy in Office of Trustee
	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE ISSUER[, THE GUARANTOR] AND THE TRUSTEE	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.01
	 	Issuer to Furnish Trustee Names and Addresses of Securityholders
	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.02
	 	Preservation Of Information; Communications With Securityholders
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.03
	 	Reports by the Issuer [and the Guarantor]	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.04
	 	Reports by the Trustee
	 	 	16	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.01
	 	Events of Default
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.02
	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.03
	 	Application of Moneys Collected
	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.04
	 	Limitation on Suits	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.05
	 	Rights and Remedies Cumulative; Delay or Omission Not Waiver
	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.06
	 	Control by Securityholders
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.07
	 	Undertaking to Pay Costs
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII CONCERNING THE TRUSTEE	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.01
	 	Certain Duties and Responsibilities of Trustee
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.02
	 	Certain Rights of Trustee
	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.03
	 	Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.04
	 	May Hold Securities
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.05
	 	Moneys Held in Trust
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.06
	 	Compensation and Reimbursement
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.07
	 	Reliance on Officers’ Certificate
	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.08
	 	Disqualification; Conflicting Interests
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.09
	 	Corporate Trustee Required; Eligibility
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.10
	 	Resignation and Removal; Appointment of Successor
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.11
	 	Acceptance of Appointment By Successor
	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.12
	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.13
	 	Preferential Collection of Claims Against the Issuer [or the Guarantor]
	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII CONCERNING THE SECURITYHOLDERS	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.01
	 	Evidence of Action by Securityholders	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.02
	 	Proof of Execution by Securityholders
	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.03
	 	Who May be Deemed Owners
	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.04
	 	Certain Securities Owned by Issuer Disregarded
	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.05
	 	Actions Binding on Future Securityholders
	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 9.01
	 	Supplemental Indentures Without the Consent of Securityholders
	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 9.02
	 	Supplemental Indentures With Consent of Securityholders
	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 9.03
	 	Effect of Supplemental Indentures
	 	 	31	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 9.04
	 	Securities Affected by Supplemental Indentures
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X SUCCESSOR ENTITY	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 10.01
	 	Issuer [or Guarantor] May Consolidate, Etc.
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 10.02
	 	Successor Entity Substituted
	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 10.03
	 	[Assumption by Guarantor or Subsdiary of Issuer’s Obligations]
	 	 	 32	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 10.04
	 	Evidence of Consolidation, Etc. to Trustee
	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI SATISFACTION AND DISCHARGE	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.01
	 	Satisfaction and Discharge of Indenture
	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.02
	 	Discharge of Obligations
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.03
	 	Deposited Moneys to be Held in Trust
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.04
	 	Payment of Moneys Held by Paying Agents
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.05
	 	Repayment to Issuer [or Guarantor]	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII IMMUNITY OF SHAREHOLDERS, BOARD MEMBERS AND OTHER OFFICERS	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 12.01
	 	No Recourse
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII MISCELLANEOUS PROVISIONS	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.01
	 	Effect on Successors and Assigns
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.02
	 	Actions by Successor
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.03
	 	Notices
	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.04
	 	Governing Law
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.05
	 	Compliance Certificates and Opinions
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.06
	 	Payments on Business Days
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.07
	 	Conflict with Trust Indenture Act
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.08
	 	Counterparts
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.09
	 	Separability
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.10
	 	Assignment
	 	 	38	 






 - iii -




 









 








     INDENTURE, dated as of [    ], 200[    ], among [TAM Capital Inc./TAM S.A./TAM Linhas Aéreas
S.A.], a [           ], (the “Issuer”), [TAM S.A./TAM Linhas Aéreas S.A., (the
“Guarantor”),] and [            ], as trustee (the “Trustee”):



     WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured debt securities (hereinafter referred to as the
“Securities”), in an unlimited aggregate principal amount to be issued from time to time in
one or more series as in this Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;



     WHEREAS, to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Issuer has duly authorized the execution of this
Indenture;



     [WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture to
provide for the Guarantees by it with respect to the Securities as set forth in this Indenture];
and



     WHEREAS, all things necessary to make this Indenture a valid agreement of the Issuer [and
Guarantor], in accordance with its terms, have been done.



     NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the
holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit
of the holders of Securities:



ARTICLE I




DEFINITIONS




     Section 1.01 Definitions of Terms.



     The terms defined in this Section (except as in this Indenture otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section and shall include
the plural as well as the singular. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.



     “Authenticating Agent” means an authenticating agent with respect to all or any of the
series of Securities appointed with respect to all or any series of the Securities by the Trustee
pursuant to Section 2.10.



     “Authorized Officer” means a member of the Board of the Issuer [or the Guarantor], or
another person duly authorized in accordance with applicable law to bind either the Issuer [or the
Guarantor].



     “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal, state or foreign
law for the relief of debtors.



     “Board” means the board of directors of the Issuer [or the Guarantor], as the case may
be,] or any duly authorized committee thereof.



 









 





     “Board Resolution” means a copy of a resolution certified by an Authorized Officer to
have been duly adopted by the Board and to be in full force and effect on the date of such
certification.



     “Business Day” means, with respect to any series of Securities, any day other than a
day on which Federal or State banking institutions in the Borough of Manhattan, The City of New
York, are authorized or obligated by law, executive order or regulation to close.



     “Certificate” means a certificate signed by an Authorized Officer. The Certificate
need not comply with the provisions of Section 13.05.



     “Corporate Trust Office” means the office of the Trustee at which, at any particular
time, its corporate trust business shall be principally administered, which office at the date
hereof is located at [    ], except that whenever a provision herein refers to an office or agency
of the Trustee in the Borough of Manhattan, The City of New York, such office is located, at the
date hereof, at [    ].



     “Custodian” means any receiver, trustee, assignee, liquidator, or similar official
under any Bankruptcy Law.



     “Default” means any event, act or condition that with notice or lapse of time, or
both, would constitute an Event of Default.



     “Depositary” means, with respect to Securities of any series, for which the Issuer
shall determine that such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor registered as a clearing
agency under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other
applicable statute or regulation, which, in each case, shall be designated by the Issuer pursuant
to either Section 2.01 or 2.11.



     “Event of Default” means, with respect to Securities of a particular series any event
specified in Section 6.01, continued for the period of time, if any, therein designated.



     “Global Security” means, with respect to any series of Securities, a Security executed
by the Issuer and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.



     “Governmental Obligations” means securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a 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 such Governmental Obligation or a specific payment of principal of or interest
on any such Governmental Obligation held by such custodian for the account of the holder of such
depositary receipt; provided, however, 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 Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.



     [“Guarantees” means any Guarantees of the Guarantor endorsed on Securities
authenticated and delivered pursuant to this Indenture.]



2









 








     [“Guarantor” means [TAM S.A./TAM Linhas Aéreas S.A.], a [       ], shall also include its
successors and assigns.]



     “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.



     “Indenture” means this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into in
accordance with the terms hereof.



     “Interest Payment Date”, when used with respect to any installment of interest on a
Security of a particular series, means the date specified in such Security or in a Board Resolution
or in an indenture supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and payable.



     “Issuer” means [TAM Capital Inc./TAM S.A./TAM Linhas Aéreas S.A.], a [•].



     “Officers’ Certificate” means a certificate signed by an Authorized Officer of the
Issuer [or the Guarantor], as the case may be], that is delivered to the Trustee in accordance with
the terms hereof. Each such certificate shall include the statements provided for in
Section 13.05, if and to the extent required by the provisions thereof.



     “Opinion of Counsel” means an opinion in writing of legal counsel, who may be an
employee of or counsel for the Issuer [or the Guarantor], that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the statements provided for in
Section 13.05, if and to the extent required by the provisions thereof.



     “Outstanding”, when used with reference to Securities of any series, means, subject to
the provisions of Section 8.04, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying
agent for cancellation or that have previously been canceled; (b) Securities or portions thereof
for the payment or redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer
[or the Guarantor]) or shall have been set aside and segregated in trust by the Issuer [or the
Guarantor] (if the Issuer [or the Guarantor] shall act as its own paying agent); provided, however,
that if such Securities or portions of such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.07.



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



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



     “Relevant Jurisdiction” has the meaning specified in Section 10.03.



3









 








     “Responsible Officer” when used with respect to the Trustee means the chairman of the
board of directors, the president, any vice president, the secretary, the treasurer, any trust
officer, any corporate trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with the particular subject.



     “Securities” means the debt Securities authenticated and delivered under this
Indenture.



     “Securityholder”, “holder of Securities”, “registered holder” or other
similar term, means the Person or Persons in whose name or names a particular Security shall be
registered on the books of the Issuer [or the Guarantor] kept for that purpose in accordance with
the terms of this Indenture.



     “Subsidiary” means, with respect to any Person, (i) any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned by such Person, or by
one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.



     “Trustee” means [    ], and, subject to the provisions of Article Seven, shall also
include its successors and assigns, and, if at any time there is more than one Person acting in
such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that
series.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, subject to
the provisions of Sections 9.01, 9.02 and 10.01, as in effect at the date of execution of this
instrument.



     “Voting Stock”, as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other equivalents having such power
only by reason of the occurrence of a contingency.



ARTICLE II




ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES




     Section 2.01 Designation and Terms of Securities.



          (a) The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution of the Issuer [and the Guarantor], as appropriate, or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there
shall be established in or pursuant to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto:





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



4









 









          (ii) any limit upon the aggregate principal amount of the Securities of that series
that may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of that series);




          (iii) the date or dates on which the principal of the Securities of the series is
payable and the place(s) of payment;




          (iv) the rate or rates at which the Securities of the series shall bear interest or the
manner of calculation of such rate or rates, if any;




          (v) the date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates;




          (vi) the right, if any, to extend the interest payment periods and the duration of such
extension;




          (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 Issuer [or the Guarantor];




          (viii) the obligation, if any, of the Issuer [or the Guarantor] to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;




          (ix) the form of the Securities of the series including the form of the certificate of
authentication for such series;




          (x) if other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall be issuable;




          (xi) any and all other terms with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any supplemental indenture)
including any terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of that series;




          (xii) whether the Securities are issuable as a Global Security and, in such case, the
identity of the Depositary for such series;




          (xiii) whether the Securities will be convertible into ordinary shares or other
securities of the Issuer and, if so, the terms and conditions upon which such Securities
will be so convertible, including the conversion price and the conversion period;




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



5









 






          (xv) any additional or different Events of Default or restrictive covenants provided
for with respect to the Securities of the series. All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indentures supplemental hereto.



     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 shall be certified by an Authorized
Officer of the Issuer [or the Guarantor] and delivered to the Trustee at or prior to the delivery
of the Officers’ Certificate setting forth the terms of the series.



     Securities of any particular series may be issued at various times, with different dates on
which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different redemption dates.



     Section 2.02 Form of Securities and Trustee’s Certificate.



     The Securities of any series and the Trustee’s certificate of authentication to be borne by
such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution and as set forth in an
Officers’ Certificate and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved thereon as the
Issuer [or the Guarantor] may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that
series may be listed, or to conform to usage.



     Section 2.03 Denominations; Provisions for Payment.



     The Securities shall be issuable as registered Securities and in the denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(10). The
Securities of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or currency of the United
States of America that at the time is legal tender for public and private debt, at the office or
agency of the Issuer maintained for that purpose in the Borough of Manhattan, the City and State of
New York. Each Security shall be dated the date of its authentication. Interest on the Securities
shall be computed on the basis of a 360-day year composed of twelve 30-day months.



     The interest installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. In the event that any
Security of a particular series or portion thereof is called for redemption and the redemption date
is subsequent to a regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.03.



     Any interest on any Security that is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the
Issuer, at its election, as provided in clause (1) or clause (2) below:



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          (1) The Issuer may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Issuer shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each such Security and
the date of the proposed payment, and at the same time the Issuer shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Issuer of such
special record date and, in the name and at the expense of the Issuer, shall cause notice of
the proposed payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less than 10 days prior to
such special record date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date.




          (2) The Issuer may make payment of any Defaulted Interest on any Securities 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 Issuer to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.



     Unless otherwise set forth in a Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term
“regular record date” as used in this Section with respect to a series of Securities with
respect
to any Interest Payment Date for such series shall mean either the fifteenth day of the month
immediately preceding the month in which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.



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



     Section 2.04 Execution and Authentications.



     The Securities [or Guarantees] shall be signed on behalf of the Issuer [or Guarantor] by two
Authorized Officers of the Issuer [or the Guarantor] as the case may be. Signatures may be in the
form of a manual or facsimile signature. The Issuer [or Guarantor] may use the facsimile signature
of any Person who shall have been an Authorized Officer, notwithstanding the fact that at the time
the Securities [or Guarantees] shall be authenticated and delivered or disposed of such Person
shall have ceased to be an Authorized Officer. The Securities [or Guarantees] may contain such
notations, legends or endorsements



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required by law, stock exchange rule or usage. Each Security
[or Guarantee] shall be dated the date of its authentication by the Trustee.




     A Security [or Guarantee] shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive
evidence that the Security [or Guarantee] so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this Indenture. At any time
and from time to time after the execution and delivery of this Indenture, the Issuer [or Guarantor,
as the case may be,] may deliver Securities [or Guarantees] of any series executed by the Issuer
[or Guarantor, as the case may be,] to the Trustee for authentication, together with a written
order of the Issuer [or Guarantor, as the case may be,] for the authentication and delivery of such
Securities [or Guarantees], signed by two Authorized Officers, and the Trustee in accordance with
such written order shall authenticate and deliver such Securities.



     In authenticating such Securities [or Guarantees] and accepting the additional
responsibilities under this Indenture in relation to such Securities [or Guarantees], the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms thereof have been established in
conformity with the provisions of this Indenture.



     The Trustee shall not be required to authenticate such Securities [or Guarantees] if the issue
of such Securities [or Guarantees] pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Securities [or Guarantees] and this Indenture or otherwise in a
manner that is not reasonably acceptable to the Trustee.



     Section 2.05 Registration of Transfer and Exchange.



          (a) Securities of any series may be exchanged upon presentation thereof at the office or
agency of the Issuer designated for such purpose in the Borough of Manhattan, the City and State of
New York, for other Securities of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of any Securities so surrendered for
exchange, the Issuer shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange
therefore the Security or Securities of the same series that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.




          (b) The Issuer shall keep, or cause to be kept, at its office or agency designated for such
purpose in the Borough of Manhattan, the City and State of New York, or such other location
designated by the Issuer a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer
shall register the Securities and the transfers of Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose
of registering Securities and transfer of Securities as herein provided shall be appointed as
authorized by Board Resolution (the “Security Registrar”).




     Upon surrender for transfer of any Security at the office or agency of the Issuer designated
for such purpose, the Issuer shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of
the same series as the Security presented for a like aggregate principal amount.



     All Securities presented or surrendered for exchange or registration of transfer, as provided
in this Section, shall be accompanied (if so required by the Issuer or the Security Registrar) by a
written instrument or instruments of transfer, in form satisfactory to the Issuer or the Security
Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in
writing.



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          (c) No service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any series, but the Issuer
may require payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.




          (d) The Issuer shall not be required (1) to issue, exchange or register the transfer of any
Securities during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (2) to register the transfer of
or exchange any Securities of any series or portions thereof called for redemption. The provisions
of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.




     Section 2.06 Temporary Securities.



     Pending the preparation of definitive Securities of any series, the Issuer may execute, and
the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities [and, if applicable, having endorsed thereon Guarantees of
the Guarantor substantially of the tenor of definitive Guarantees in lieu of which they are issued,
but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Issuer]. Every temporary Security of any series shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities of such series. Without
unnecessary delay the Issuer will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the Issuer designated for the purpose
in the Borough of Manhattan, the City and State of New York, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Issuer advises the Trustee to
the effect that
definitive Securities need not be executed and furnished until further notice from the Issuer.
Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series authenticated and delivered hereunder.



     Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.



     In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Issuer (subject to the next succeeding sentence) shall execute, and upon the Issuer’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, [having endorsed thereon a Guarantee] and bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Issuer[, the Guarantor] and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Issuer[, the Guarantor] and the
Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of any officer of the Issuer. Upon
the issuance of any substituted Security, the Issuer 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. In case any
Security that has matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case



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of a mutilated Security) if the applicant
for such payment shall furnish to the Issuer[, the Guarantor] and the Trustee such security or
indemnity as they may require to save each of them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Issuer[, the Guarantor] and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.




     Every replacement Security issued pursuant to the provisions of this Section shall constitute
an additional contractual obligation of the Issuer [or the Guarantor] whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and
all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to
the extent lawful) any and all other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.



     Section 2.08 Cancellation.



     All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Issuer [or the Guarantor] or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and
no Securities shall be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Issuer [or the Guarantor] at the time of such
surrender, the Trustee shall deliver to the Issuer [or the Guarantor] canceled Securities held by
the Trustee. In the absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of disposition to the Issuer. If
the Issuer [or the Guarantor] shall otherwise acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.



     Section 2.09 Benefits of Indenture.



     Nothing in this Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the Securities, any legal
or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the Securities.



     Section 2.10 Authenticating Agent.



     So long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall
be acceptable to the Issuer and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is
otherwise authorized under such laws to conduct such business and is subject to supervision or



10









 







examination by Federal or State authorities. If at any time any Authenticating Agent shall cease
to be eligible in accordance with these provisions, it shall resign immediately.




     Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Issuer. The Trustee may at any time (and upon request by the Issuer shall)
terminate the agency of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Issuer. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Issuer. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder
as if originally named as an Authenticating Agent pursuant hereto.



     Section 2.11 Global Securities.



          (a) If the Issuer shall establish pursuant to Section 2.01 that the Securities of a particular
series are to be issued as a Global Security, then the Issuer shall execute and the Trustee shall,
in accordance with Section 2.04, authenticate and deliver, a Global Security that (1) shall
represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Securities of such series, (2) shall be registered in the name of the Depositary or
its nominee, (3) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction and (4) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary.”




          (b) Notwithstanding the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Issuer or to a nominee of such successor Depositary.




          (c) If at any time the Depositary for a series of the Securities notifies the Issuer that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Issuer within 90 days after the Issuer receives such notice or becomes aware of such condition,
as the case may be, this Section 2.11 shall no longer be applicable to the Securities of such
series and the Issuer will execute and, subject to Section 2.05, the Trustee will authenticate and
deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the Issuer may at any
time determine that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of
such series. In such event the Issuer will execute and, subject to Section 2.05, the Trustee, upon
receipt of an Officers’ Certificate evidencing such determination by the Issuer, will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the principal amount of the
Global Security of such series in exchange for such Global Security. Upon the exchange of the
Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose
names such Securities are so registered.




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ARTICLE III




REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS




     Section 3.01 Redemption.



     The Issuer may redeem the Securities of any series issued hereunder on and after the dates and
in accordance with the terms established for such series pursuant to Section 2.01 hereof.



     Section 3.02 Notice of Redemption.



          (a) In case the Issuer shall desire to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series in accordance with the right reserved so to do, the
Issuer shall, or shall cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date fixed for redemption of
that series to such holders at their last addresses as they shall appear upon the Security Register
unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed
in the manner herein provided shall be conclusively presumed to have been duly given, whether or
not the registered holder receives the notice. In any case, failure duly to give such notice to
the holder of any Security of any series designated for redemption in whole or in part, or any
defect in the notice, shall not affect the validity of the proceedings for the redemption of any
other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officers’
Certificate evidencing compliance with any such restriction.




     Each such notice of redemption shall specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that payment of the
redemption
price of such Securities to be redeemed will be made at the office or agency of the Issuer in
the Borough of Manhattan, the City and State of New York, upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption will be paid as specified in
said notice, that from and after said date interest will cease to accrue and that the redemption is
for a sinking fund, if such is the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to be redeemed in whole or in part
shall specify the particular Securities to be so redeemed. In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.



          (b) If less than all the Securities of a series are to be redeemed, the Issuer shall give the
Trustee at least 45 days’ notice in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify
the Issuer in writing of the numbers of the Securities to be redeemed, in whole or in part. The
Issuer may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by
an Authorized Officer, instruct the Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice of redemption in the manner set
forth in this Section, such notice to be in the name of the Issuer or its own name as the Trustee
or such paying agent may deem advisable. In any case in which notice of redemption is to be




12









 







given
by the Trustee or any such paying agent, the Issuer shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the case may be, such Security
Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail that may be required under the
provisions of this Section.




     Section 3.03 Payment Upon Redemption.



          (a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on
such Securities or portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Issuer shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the
notice, said Securities shall be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the applicable record date
pursuant to Section 2.03).




          (b) Upon presentation of any Security of such series that is to be redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and the office or agency where the Security
is presented shall deliver to the holder thereof, at the expense of the Issuer, a new Security of
the same series of authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented.




     Section 3.04 Sinking Fund.



     The provisions of Sections 3.04, 3.05 and 3.06 shall 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 terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.



     Section 3.05 Satisfaction of Sinking Fund Payments with Securities.



     The Issuer (a) may deliver Outstanding Securities of a series (other than any Securities
previously called for redemption) and (b) may apply as a credit Securities of a series that have
been redeemed either at the election of the Issuer 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, provided that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the redemption price specified in
such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.



13









 








     Section 3.06 Redemption of Securities for Sinking Fund.



     Not less than 45 days prior to each sinking fund payment date for any series of Securities,
the Issuer will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Issuer in the manner
provided in Section 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.



ARTICLE IV




COVENANTS




     Section 4.01 Payment of Principal, Premium and Interest.



     The Issuer will duly and punctually pay or cause to be paid the principal of (and premium, if
any) and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities.



     Section 4.02 Maintenance of Office or Agency.



     So long as any series of the Securities remain Outstanding, the Issuer agrees to maintain an
office or agency in the Borough of Manhattan, the City and State of New York, with respect to each
such series and at such other location or locations as may be designated as provided in this
Section 4.02, where (a) Securities of that series may be presented for payment, (b) Securities of
that series may be presented as herein above authorized for registration of transfer and exchange,
and (c) notices and demands to or upon the Issuer in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with respect to such office or
agency until [each of] the Issuer [and the Guarantor] shall, by written notice signed by an
Authorized Officer and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Issuer [or the Guarantor] shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Issuer [and the Guarantor] hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands.



     Section 4.03 Paying Agents.



          (a) If the Issuer [or the Guarantor] shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Issuer [or the Guarantor] will cause each
such paying agent to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section:




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



14









 









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




          (iii) that it will, at any time during the continuance of any failure referred to in
the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent; and




          (iv) that it will perform all other duties of paying agent as set forth in this
Indenture.



          (b) If the Issuer [or the Guarantor] shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal of (and premium, if
any) or interest on Securities of that series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if
any) or interest so becoming due on Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Issuer [or the Guarantor] shall have one or more paying agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if any) or interest
on any Securities of that series, deposit with the paying agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Issuer [or the Guarantor] will promptly notify the Trustee of this action
or failure so to act.




          (c) Notwithstanding anything in this Section to the contrary, (1) the agreement to hold sums
in trust as provided in this Section is subject to the provisions of Section 11.05, and (2) the
Issuer [or the Guarantor] may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to
the Trustee all sums held in trust by the Issuer[, the Guarantor] or such paying agent, such sums
to be held by the Trustee upon the same terms and conditions as those upon which such sums were
held by the Issuer[, the Guarantor] or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further liability with respect
to such money.




     Section 4.04 Appointment to Fill Vacancy in Office of Trustee.



     The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee hereunder.



ARTICLE V




SECURITYHOLDERS’ LISTS AND REPORTS BY THE ISSUER[,

THE GUARANTOR] AND THE TRUSTEE




     Section 5.01 Issuer to Furnish Trustee Names and Addresses of Securityholders.



     The Issuer will furnish or cause to be furnished to the Trustee (a) on each regular record
date (as defined in Section 2.03) a list, in such form as the Trustee may reasonably require, of
the names and addresses of the holders of each series of Securities as of such regular record date,
provided that the Issuer shall not be obligated to furnish or cause to be furnished such list at
any time that the list shall not differ in any respect from the most recent list furnished to the
Trustee by the Issuer and (b) at such other times as the Trustee may request in writing within 30
days after the receipt by the Issuer of any such request, a




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list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished; provided, however, that, in
either case, no such list need be furnished for any series for which the Trustee shall be the
Security Registrar.




     Section 5.02 Preservation Of Information; Communications With Securityholders.



                    (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities contained in the most recent
list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if acting in such
capacity).



                    (b) The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.



                    (c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities.



     Section 5.03 Reports by the Issuer [and the Guarantor].



                    (a) The Issuer [or the Guarantor] covenant and agree to file with the Trustee, within 15 days
after the Issuer [or the Guarantor] are required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and regulations prescribe)
that the
Issuer [and the Guarantor] may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Issuer [and the Guarantor] [are/is] not required
to file information, documents or reports pursuant to either of such Sections, then to file with
the Trustee and the Commission, in accordance with the rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information, documents and
reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed from time to time in
such rules and regulations.



                    (b) The Issuer [and the Guarantor] covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to time by the Commission,
such additional information, documents and reports with respect to compliance by the Issuer with
the conditions and covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.



                    (c) The Issuer [and the Guarantor] covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for evidence of receipt, to
the Securityholders, as their names and addresses appear upon the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any information, documents and reports
required to be filed by the Issuer [and the Guarantor] pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time by the Commission.



     Section 5.04 Reports by the Trustee.



                    (a) On or before [            ] in each year in which any of the Securities are Outstanding,
the Trustee shall transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as of the preceding [
[    ], if and to the extent required under Section 313(a) of the Trust Indenture Act.



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                    (b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.



                    (c) A copy of each such report shall, at the time of such transmission to Securityholders, be
filed by the Trustee with the Issuer, with each stock exchange upon which any Securities are listed
(if so listed) and also with the Commission. The Issuer agrees to notify the Trustee when any
Securities become listed on any stock exchange.



ARTICLE VI




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT




     Section 6.01 Events of Default.



                    (a) Whenever used herein with respect to Securities of a particular series, “Event of
Default” means any one or more of the following events that has occurred and is continuing:




                    (i) the Issuer defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an
interest
payment period by the Issuer in accordance with the terms of any indenture supplemental
hereto, shall not constitute a default in the payment of interest for this purpose;




                    (ii) the Issuer defaults in the payment of the principal of (or premium, if any, on)
any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to that series; provided,
however, that a valid extension of the maturity of such Securities in accordance with the
terms of any indenture supplemental hereto shall not constitute a default in the payment of
principal or premium, if any;




                    (iii) the Issuer fails to observe or perform any other of its covenants or agreements
with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant
or agreement that has been expressly included in this Indenture solely for the benefit of
one or more series of Securities other than such series) for a period of 90 days after the
date on which written notice of such failure, requiring the same to be remedied and stating
that such notice is a “Notice of Default” hereunder, shall have been given to the Issuer by
the Trustee, by registered or certified mail, or to the Issuer and the Trustee by the
holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;




                    (iv) the Issuer pursuant to or within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment for the benefit of its
creditors; or




                    (v) a court of competent jurisdiction enters an order under any Bankruptcy Law that
(i) is for relief against the Issuer [or Guarantor] in an involuntary case, (ii) appoints a
Custodian of the Issuer for all or substantially all of its property or (iii) orders the
liquidation of the Issuer, and the order or decree remains unstayed and in effect for 90
days.



17









 





                    (b) In each and every such case, unless the principal of all the Securities of that series
shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by
notice in writing to the Issuer (and to the Trustee if given by such Securityholders), may declare
the principal of all the Securities of that series to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable.



                    (c) At any time after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by written notice to
the Issuer[, the Guarantor] and the Trustee, may rescind and annul such declaration and its
consequences if: (1) the Issuer [or the Guarantor] has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities of that series and
the principal of (and premium, if any, on) all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue installments of
interest, at the rate per annum expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06, and (2) any and all
Events of Default under the Indenture with respect to such series, other than the nonpayment of
principal on Securities of that series that shall not have become due by their terms, shall have
been
remedied or waived as provided in Section 6.06. No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.



                    (d) In case the Trustee shall have proceeded to enforce any right with respect to Securities
of that series under this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such
proceedings, the Issuer and the Trustee shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Issuer and the Trustee shall
continue as though no such proceedings had been taken.



     Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.



                    (a) The Issuer covenants that (1) in case it shall default in the payment of any installment
of interest on any of the Securities of a series, or any payment required by any sinking or
analogous fund established with respect to that series as and when the same shall have become due
and payable, and such default shall have continued for a period of 90 Business Days, or (2) in case
it shall default in the payment of the principal of (or premium, if any, on) any of the Securities
of a series when the same shall have become due and payable, whether upon maturity of the
Securities of a series or upon redemption or upon declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the holders of the Securities
of that series, the whole amount that then shall have become due and payable on all such Securities
for principal (and premium, if any) or interest, or all of the foregoing, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of interest at the rate per
annum expressed in the Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.



                    (b) If the Issuer shall fail to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may



18









 







prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities of that series and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities of that series, wherever situated.



                    (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affected the Issuer, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of Securities of a series
allowed for the entire amount due and payable by the Issuer under this Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by
the Issuer after such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.06.



                    (d) All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Securities of a series, may be enforced by the Trustee without
the possession of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.



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



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



     Section 6.03 Application of Moneys Collected.



     Any moneys collected by the Trustee pursuant to this Article with respect to a particular
series of Securities shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and notation thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:



     FIRST: To the payment of costs and expenses of collection and of all amounts payable to the
Trustee under Section 7.06; and



19









 





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



     Section 6.04 Limitation on Suits.



     No holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (a) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (b) the holders of not less than
25% in aggregate principal amount of the Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder; (c) such holder or holders shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be incurred therein or
thereby; (d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding; and (e) during such
60-day period, the holders of a majority in principal amount of the Securities of that series do
not give the Trustee a direction inconsistent with the request.



     Notwithstanding anything contained herein to the contrary, the right of any holder of any
Security to receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any
such payment on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder, and by accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders of Securities of
such series shall have any right in any manner whatsoever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.



     Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.



                    (a) Except as otherwise provided in Section 2.07, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.



                    (b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Securityholders.



20









 





     Section 6.06 Control by Securityholders.



     The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.01, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such series; provided,
however, that such direction shall not be in conflict with any rule of law or with this Indenture
or be unduly prejudicial to the rights of holders of Securities of any other series at the time
Outstanding determined in accordance with Section 8.01. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.01, may on behalf of the holders of all of the Securities
of such series waive any past default in the performance of any of the covenants contained herein
or established pursuant to Section 2.01 with respect to such series and its consequences, except a
default in the payment of the principal of (or premium, if any) or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities
otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be
deemed to be cured for all
purposes of this Indenture and the Issuer, the Trustee and the holders of the Securities of
such series shall be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     Section 6.07 Undertaking to Pay Costs.



     All parties to this Indenture agree, and each holder of any Securities by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security of such series, on or after
the respective due dates expressed in such Security or established pursuant to this Indenture.



ARTICLE VII




CONCERNING THE TRUSTEE




     Section 7.01 Certain Duties and Responsibilities of Trustee.



                    (a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing of all Events of Default with respect to the Securities of that
series that may have occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In case an Event of
Default with respect to the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to



21









 







Securities of that series such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs.



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




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




                         (1) the duties and obligations of the Trustee shall with respect to the Securities of
such series be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and (ii) in the absence of bad faith on the part of the Trustee, the Trustee may
with respect to the Securities of such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;




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




                         (3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of not less than a
majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee under this
Indenture with respect to the Securities of that series; and




                         (4) none of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.



     Section 7.02 Certain Rights of Trustee.



     Except as otherwise provided in Section 7.01:



                    (a) The Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, 25 consent,
order, approval, bond, security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;



22









 





                    (b) Any request, direction, order or demand of the Issuer [or the Guarantor] mentioned herein
shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Issuer [or the Guarantor], by two Authorized Officers of the Issuer [or the Guarantor] (unless
other evidence in respect thereof is specifically prescribed herein);



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



                    (d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a series of the Securities (that has not
been cured or waived) to exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs;



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



                    (f) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every such examination shall be paid by
the Issuer [or the Guarantor] or, if paid by the Trustee, shall be repaid by the Issuer [or the
Guarantor] upon demand; and



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



     Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities.



                    (a) The recitals contained herein and in the Securities shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for the correctness of the same.



                    (b) The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Securities.



                    (c) The Trustee shall not be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds of such Securities, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this Indenture or established pursuant
to



23









 







Section 2.01, or for the use or application of any moneys received by any paying agent other
than the Trustee.



     Section 7.04 May Hold Securities.



     The Trustee or any paying agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.



     Section 7.05 Moneys Held in Trust.



     Subject to the provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder except such as it
may agree with the Issuer [or the Guarantor] to pay thereon.



     Section 7.06 Compensation and Reimbursement.



                    (a) The Issuer [and the Guarantor] covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust), as the Issuer[, the Guarantor]
and the Trustee may from time to time agree in writing, for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Issuer
[and the Guarantor] will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Issuer [and the Guarantor] also
covenants to indemnify the Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending itself against any
claim of liability in the premises.



                    (b) The obligations of the Issuer [and the Guarantor] under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of particular
Securities.



     Section 7.07 Reliance on Officers’ Certificate.



     Except as otherwise provided in Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.



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     Section 7.08 Disqualification; Conflicting Interests.



     If the Trustee has or shall acquire any “conflicting interest” within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee and the Issuer shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.



     Section 7.09 Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee with respect to the Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The Issuer [or the Guarantor] may not,
nor may any Person directly or indirectly controlling, controlled by or under common control with
the Issuer [or the Guarantor], serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.



     Section 7.10 Resignation and Removal; Appointment of Successor.



                    (a) The Trustee or any successor hereafter appointed, may at any time resign with respect to
the Securities of one or more series by giving written notice thereof to the Issuer [and the
Guarantor] and by transmitting notice of resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Issuer [and the Guarantor] shall promptly appoint a
successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such series, or any Securityholder
of that series who has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.



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




                         (1) the Trustee shall fail to comply with the provisions of Section 7.08 after written
request therefor by the Issuer [or the Guarantor] or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months; or




                         (2) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.09 and shall fail to resign after written request therefore by the Issuer [or the
Guarantor] or by any such Securityholder; or



25









 






                         (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Issuer may remove the Trustee with
respect to all Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, unless the Trustee’s
duty to resign is stayed as provided herein, any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months may, on behalf of that holder and
all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.



                    (c) The holders of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding may at any time remove the Trustee with respect to such series by so
notifying the Trustee, the Issuer [and the Guarantor] and may appoint a successor Trustee for
such series with the consent of the Issuer [and the Guarantor].



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



                    (e) Any successor trustee appointed pursuant to this Section may be appointed with respect to
the Securities of one or more series or all of such series, and at any time there shall be only one
Trustee with respect to the Securities of any particular series.



     Section 7.11 Acceptance of Appointment By Successor.



                    (a) In case of the appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to
each of the Issuer[, the Guarantor] and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Issuer[, the Guarantor] or the successor trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring Trustee hereunder.



                    (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 Issuer, [the Guarantor,] the retiring Trustee and each
successor trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor trustee relates, (2) shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the



26









 







administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee shall with respect to
the Securities of that or those series to which the appointment of such successor trustee relates
have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Issuer[, the
Guarantor] or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor trustee, to the extent contemplated by such supplemental indenture, the 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 Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.



                    (d) No successor trustee shall accept its appointment unless at the time of such acceptance
such successor trustee shall be qualified and eligible under this Article.



                    (e) Upon acceptance of appointment by a successor trustee as provided in this Section, the
Issuer [and the Guarantor] shall transmit notice of the succession of such trustee hereunder by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. If the Issuer [and the Guarantor] fails to transmit such notice within ten
days after acceptance of appointment by the successor trustee, the successor trustee shall cause
such notice to be transmitted at the expense of the Issuer [and the Guarantor].



     Section 7.12 Merger, Conversion, Consolidation or Succession to Business.



     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case 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.



     Section 7.13 Preferential Collection of Claims Against the Issuer [or the Guarantor].



     The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.



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ARTICLE VIII




CONCERNING THE SECURITYHOLDERS




     Section 8.01 Evidence of Action by Securityholders.



     Whenever in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular series may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders
of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.



     If the Issuer shall solicit from the Securityholders of any series any request, demand,
authorization, direction, notice, consent, waiver or other action, the Issuer may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or
other action, but the Issuer shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may
be given before or after the record date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of Outstanding Securities of that series have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such authorization, agreement
or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the
record date.



     Section 8.02 Proof of Execution by Securityholders.



     Subject to the provisions of Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:



                    (a) The fact and date of the execution by any such Person of any instrument may be proved in
any reasonable manner acceptable to the Trustee.



                    (b) The ownership of Securities shall be proved by the Security Register of such Securities or
by a certificate of the Security Registrar thereof.



                    (c) The Trustee may require such additional proof of any matter referred to in this Section as
it shall deem necessary.



     Section 8.03 Who May be Deemed Owners.



     Prior to the due presentment for registration of transfer of any Security, the Issuer, the
Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Issuer as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the



28









 







principal of (and premium, if any) and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.



     Section 8.04 Certain Securities Owned by Issuer Disregarded.



     In determining whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction, consent or waiver under this Indenture, the
Securities of that series that are owned by the Issuer or any other obligor on the Securities of
that series or by any Person directly or indirectly controlling or controlled by or under common
control with the Issuer or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.



     Section 8.05 Actions Binding on Future Securityholders.



     At any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the holder
of any Security shall be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto
is made upon such Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the Trustee and the
holders of all the Securities of that series.



ARTICLE IX




SUPPLEMENTAL INDENTURES




     Section 9.01 Supplemental Indentures Without the Consent of Securityholders.



     In addition to any supplemental indenture otherwise authorized by this Indenture, the Issuer[,
the Guarantor] and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect), without the consent of the Securityholders, for one or more of the following
purposes:



                    (a) to cure any ambiguity, defect or inconsistency herein or in the Securities of any series;



                    (b) to comply with Article Ten;



29









 





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



                    (d) to add to the covenants of the Issuer [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 Issuer;



                    (e) to add to, delete from or revise the conditions, limitations and restrictions on the
authorized amount, terms, purposes of issue, authentication and delivery of Securities, as herein
set forth;



                    (f) to make any change that does not adversely affect the rights of any Securityholder in any
material respect;



                    (g) [to add Guarantees to the Securities of any series to which the Guarantees shall not have
already been attached]; or



                    (h) to provide for the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to
add to the rights of the holders of any series of Securities.



     The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise. Any supplemental indenture authorized by the provisions of this Section may be executed
by the Issuer, [the Guarantor] and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.



     Section 9.02 Supplemental Indentures With Consent of Securityholders.



     With the consent (evidenced as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each series affected by such
supplemental indenture or indentures at the time Outstanding, the Issuer [and the Guarantor], when
authorized by Board Resolutions, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby,
(i) extend the fixed maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the rate of interest thereon, or reduce any premium payable upon the redemption
thereof or (ii) reduce the aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.



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



30









 





     Section 9.03 Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Issuer[, the Guarantor]
and the holders of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.



     Section 9.04 Securities Affected by Supplemental Indentures.



     Securities of any series affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Issuer [and the Guarantor], provided
such form meets the requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Issuer [and the Guarantor] shall so
determine, new
Securities of that series so modified as to conform, in the opinion of the Board, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the
Issuer [and the Guarantor], authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding. Section 9.05 Execution of Supplemental Indentures.



     Upon the request of the Issuer [and the Guarantor], accompanied by Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee
shall join with the Issuer [and the Guarantor] in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions of this Article to
join in the execution thereof; provided, however, that such Opinion of Counsel need not be provided
in connection with the execution of a supplemental indenture that establishes the terms of a series
of Securities pursuant to Section 2.01 hereof.



     Promptly after the execution by the Issuer[, the Guarantor] and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by
mail, first class postage prepaid, a notice, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders of all series affected thereby as their names and
addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.



ARTICLE X




SUCCESSOR ENTITY




     Section 10.01 Issuer [or Guarantor] May Consolidate, Etc. 



     Nothing contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Issuer [or the Guarantor] with or into any other Person (whether or
not affiliated with the



31









 







Issuer [or the Guarantor]) or successive consolidations or mergers in which
the Issuer [or the Guarantor] or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property of the Issuer [or the
Guarantor] or its successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Issuer [or the Guarantor] or its successor or
successors) authorized to acquire and operate the same; provided, however, the Issuer [or the
Guarantor] hereby covenants and agrees that, upon any such consolidation or merger (in each case,
if the Issuer is not the survivor of such transaction), sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of (premium, if any) and interest on all
of the Securities of all series in accordance with the terms of each series, according to their
tenor and the due and punctual performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with respect to such series pursuant to
Section 2.01 to be kept or performed by the Issuer [or the Guarantor] shall be expressly assumed,
by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act as then
in effect) satisfactory in form to the Trustee executed and delivered to the Trustee by the entity
formed by such consolidation, or into which the Issuer [or the Guarantor] shall have been merged,
or by the entity which shall have acquired such property[, and, in the case of the Guarantor, the
due and punctual performance of the Guarantees and the performance of every covenant of this
Indenture on the part of the Guarantor to be performed or observed].



     Section 10.02 Successor Entity Substituted.



                    (a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor entity by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of (and premium, if any) and interest on all of the Securities of all series Outstanding
and the due and punctual performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to Section 2.01 to be performed
by the Issuer [or the Guarantor] with respect to each series, such successor entity shall succeed
to and be substituted for the Issuer [or the Guarantor] with the same effect as if it had been
named as the Issuer [or the Guarantor] herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.



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



                    (c) Nothing contained in this Article shall apply to a consolidation or merger of any Person
into the Issuer [or the Guarantor] where the Issuer [or the Guarantor] is the survivor of such
transaction, or the acquisition by the Issuer [or the Guarantor], by purchase or otherwise, of all
or any part of the property of any other Person (whether or not affiliated with the Issuer [or the
Guarantor]).



     Section 10.03 [Assumption by Guarantor or Subsdiary of Issuer’s Obligations.



     The Guarantor or any Subsidiary of the Guarantor may assume the obligations of the Issuer (or
any Person which shall have previously assumed the obligations of the Issuer) for the due and
punctual payment of the principal of (and premium, if any), interest on and any other payments with
respect to the Securities, for the due and punctual conversion of the Securities in accordance with
this Indenture and for the performance of every covenant of this Indenture and the Securities on
the part of the Issuer to be performed or observed, provided that:



32









 





                    (a) the Guarantor or such Subsidiary, as the case may be, shall expressly assume such
obligations by an indenture supplemental hereto, in form reasonably satisfactory to the Trustee,
executed and delivered to the Trustee and if such Subsidiary assumes such obligations, the
Guarantor shall, by such supplemental indenture, confirm that its Guarantees shall apply to such
Subsidiary’s obligations under the Securities and this Indenture, as modified by such supplemental
indenture;



                    (b) the Guarantor or such Subsidiary, as the case may be, shall agree in such supplemental
indenture, to the extent provided in the Securities and subject to the limitations and exceptions
set forth below, that if any deduction or withholding for any present or future taxes or other
governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof
or therein) in which the Issuer or the Guarantor is incorporated, shall at any time be required by
such jurisdiction (or any such political subdivision or taxing authority) (each a “Relevant
Jurisdiction”) shall at any time be required by the Relevant Jurisdiction in respect of any
amounts to be paid by the Guarantor or such Subsidiary, as the case may be, to a Holder, the
Guarantor or such Subsidiary, as the case may be, will pay to the Holder of a Security as
additional interest such additional amounts as may be necessary in order that the net amounts paid
to such Holder of such Security shall be not less than the amounts specified in such Security to
which such Holder is entitled; provided, however, that the Guarantor or Subsidiary, as the case may
be, shall not be required to make any payment of additional amounts for or on account of:




                         (i) any tax or other governmental charge which would not have been imposed but for the
existence of any present or former connection between such Holder and the Relevant
Jurisdiction (other than the mere holding of a Security and a receipt of payments thereon),
including, without limitation, such Holder being or having been a citizen or resident
thereof or being or having been present or engaged in trade or business therein or having or
having had a permanent establishment therein;




                         (ii) any tax or other governmental charge which would not have been imposed but for the
status of such Holder as an individual resident of a member state of the European Union;




                         (iii) any tax or other governmental charge that would not have been imposed but for a
failure to comply with any applicable certification, information, identification,
documentation or other reporting requirements concerning the nationality, residence,
identity or connection with the Relevant Jurisdiction if such compliance is required as a
precondition to relief or exemption from such tax or other governmental charge (including
without limitation a certification that such Holder is not resident in the Relevant
Jurisdiction);




                         (iv) any tax or other governmental charge which would not have been imposed but for a
change in law that becomes effective more than 30 days after a payment by the Guarantor or
Subsidiary, as the case may be, becomes due and payable, or is duly provided for and notice
thereof is duly published, whichever occurs later;




                         (v) any tax or other governmental charge required to be withheld by any Paying Agent
from a payment on a Security, if such payment can be made without such deduction or
withholding by any other Paying Agent; or




                         (vi) any combination of items (a), (b), (c), (d) and (e) above.



     The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or
on account of any present or future taxes or governmental charges of whatever nature of any
jurisdiction is




33












 




which any successor Person to the Guarantor or such Subsidiary is organized, or any political
subdivision or taxing authority thereof or therein. As used in (a), (b) and (c) above, references
to Holder shall include a fiduciary, settler, beneficiary, member or shareholder of, or possessor
of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation.




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




          (d) the Guarantor or such Subsidiary, as the case may be, shall have delivered to the Trustee
an Officer’s Certificate and an Opinion of Counsel, each stating that such assumption and such
supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.




     Upon any such assumption, the Guarantor or such Subsidiary shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under this Indenture with
the same effect as if the Guarantor or such Subsidiary had been named as an “Issuer” herein, and
the Person named as an “Issuer” in the first paragraph of this instrument or any successor Person
which shall theretofore have become such in the manner prescribed in this Article shall be released
from its liability as obligor upon the Securities.]



     Section 10.04 Evidence of Consolidation, Etc. to Trustee.



     The Trustee, subject to the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this Article.



ARTICLE XI




SATISFACTION AND DISCHARGE




     Section 11.01 Satisfaction and Discharge of Indenture.



     If at any time:(a) the Issuer [or the Guarantor] shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than any Securities that
have been destroyed, lost or stolen and that have been replaced or paid as provided in Section
2.07) and Securities for whose payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Issuer [or the Guarantor] (and thereupon
repaid to the Issuer [or the Guarantor] or discharged from such trust, as provided in Section
11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Issuer [or the Guarantor] shall
deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal (and premium, if any)
and interest due or to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Issuer [or the Guarantor] shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Issuer [or the Guarantor] then this Indenture
shall thereupon cease to be of further effect with respect to such series except for the provisions
of Sections 2.03, 2.05, 2.07, 4.01,



34









 




4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption date, as the
case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the
Trustee, on demand of the Issuer [or the Guarantor] and at the cost and expense of the Issuer [or
the Guarantor], shall execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.




     Section 11.02 Discharge of Obligations.



     If at any time all such Securities of a particular series not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Issuer [or the Guarantor] by depositing irrevocably with the Trustee as
trust funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Issuer [or the
Guarantor] shall also pay or cause to be paid all other sums payable hereunder by the Issuer [or
the Guarantor] with respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee the obligations of the Issuer [or
the Guarantor] under this Indenture with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid. Thereafter, Sections
7.06 and 11.05 shall survive.



     Section 11.03 Deposited Moneys to be Held in Trust.



     All moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01
or 11.02 shall be held in trust and shall be available for payment as due, either directly or
through any paying agent (including the Issuer [or the Guarantor] acting as its own paying agent),
to the holders of the particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.



     Section 11.04 Payment of Moneys Held by Paying Agents.



     In connection with the satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Issuer [or the Guarantor], be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or Governmental Obligations.



     Section 11.05 Repayment to Issuer [or Guarantor].



     Any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then
held by the Issuer [or the Guarantor], in trust for payment of principal of (and premium, if any)
or interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the date upon which the principal of
(and premium, if any) or interest on such Securities shall have respectively become due and
payable, shall be repaid to the Issuer [or the Guarantor] on May 31 of each year or (if then held
by the Issuer [or the Guarantor]) shall be discharged from such trust; and thereupon the paying
agent and the Trustee shall be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Issuer for the payment
thereof.



35









 





ARTICLE XII




IMMUNITY OF SHAREHOLDERS,

BOARD MEMBERS AND OTHER OFFICERS




     Section 12.01 No Recourse.



     No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
shareholder, member of the supervisory board of the Issuer [or the Guarantor], member of the Board
of the Issuer [or the Guarantor], or any other Issuer [or Guarantor] officer or employee, past,
present or future as such (together, the “Issuer [and Guarantor] Parties”), of the Issuer
[or the Guarantor] or of any predecessor or successor corporation, either directly or through the
Issuer [or the Guarantor] or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the Issuer [and Guarantor] Parties, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom; and
that any and all such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims against, every
such Issuer [and Guarantor] Party, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such
Securities.



ARTICLE XIII




MISCELLANEOUS PROVISIONS




     Section 13.01 Effect on Successors and Assigns.



     All the covenants, stipulations, promises and agreements in this Indenture contained by or on
behalf of the Issuer [or the Guarantor] shall bind its successors and assigns, whether so expressed
or not.



     Section 13.02 Actions by Successor.



     Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any Authorized Person of the Issuer [or the Guarantor] shall and may be done and
performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Issuer [or the Guarantor].



     Section 13.03 Notices.



     Except as otherwise expressly provided herein any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the holders of
Securities to or on the Issuer [or the Guarantor] may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until another address is filed in
writing by the Issuer [or the Guarantor] with the Trustee), as follows: [TAM S.A./TAM Linhas
Aéreas S.A.], [· ]. Any notice, election, request or demand by the Issuer or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.



36









 





     Section 13.04 Governing Law.



     This Indenture and each Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State.



     Section 13.05 Compliance Certificates and Opinions.



          (a) Upon any application or demand by the Issuer [or the Guarantor] to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer [or the Guarantor] shall furnish
to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.




          (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (3) a statement that, in
the opinion of such Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.




     Section 13.06 Payments on Business Days.



     Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth
in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.



     Section 13.07 Conflict with Trust Indenture Act.



     If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.



     Section 13.08 Counterparts.



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



     Section 13.09 Separability.



     In case any one or more of the provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities,



37









 







but this Indenture and such Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.



     Section 13.10 Assignment.



     The Issuer [or the Guarantor] will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly owned Subsidiary of the Issuer [or
the Guarantor], provided that, in the event of any such assignment, the Issuer [or the Guarantor]
will remain liable for all such obligations. Subject to the foregoing, the Indenture is binding
upon and inures to the benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.



38









 





*****




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



	 	 	 	 	 	 	 
	 	 	[TAM CAPITAL INC./TAM S.A./
	 

	 	 	 	 	 	TAM LINHAS AÉREAS S.A.]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:
	 
	 	 	 	 	 	 
	 	 	[TAM S.A./TAM LINHAS AÉREAS S.A.]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:
	 
	 	 	 	 	 	 
	 	 	[     ] as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






 









 





INDEX OF DEFINED TERMS




	 	 	 	 	 
	[Guarantees]
	 	 	3	 
	[Guarantor]
	 	 	1, 3	 
	Authenticating Agent
	 	 	1	 
	Authorized Officer
	 	 	1	 
	Bankruptcy Law
	 	 	1	 
	Board
	 	 	3	 
	Board Resolution
	 	 	2	 
	Business Day
	 	 	2	 
	Certificate
	 	 	2	 
	Corporate Trust Office
	 	 	2	 
	Custodian
	 	 	2	 
	Default
	 	 	2	 
	Defaulted Interest
	 	 	7	 
	Depositary
	 	 	2	 
	Event of Default
	 	 	2, 17	 
	Exchange Act
	 	 	2	 
	Global Security
	 	 	2	 
	Governmental Obligations
	 	 	2	 
	Herein
	 	 	3	 
	hereof
	 	 	3	 
	hereunder
	 	 	3	 
	holder of Securities
	 	 	4	 
	Indenture
	 	 	3	 
	Interest Payment Date
	 	 	3	 
	Issuer
	 	 	1, 3	 
	Issuer [and Guarantor] Parties
	 	 	36	 
	mandatory sinking fund payment
	 	 	14	 
	Officers’ Certificate
	 	 	3	 
	Opinion of Counsel
	 	 	3	 
	optional sinking fund payment
	 	 	14	 
	Outstanding
	 	 	3	 
	Person
	 	 	3	 
	Predecessor Security
	 	 	4	 
	registered holder
	 	 	4	 
	regular record date
	 	 	7	 
	Relevant Jurisdiction
	 	 	4, 33	 
	Responsible Officer
	 	 	4	 
	Securities
	 	 	1, 4	 
	Security Register
	 	 	9	 
	Security Registrar
	 	 	9	 
	Securityholder
	 	 	4	 
	Subsidiary
	 	 	4	 
	Trust Indenture Act
	 	 	4	 
	Trustee
	 	 	1, 4	 
	Voting Stock
	 	 	4	 







i