exv4w6






Exhibit 4.6




Babcock & Brown Air Limited




Wells Fargo Bank Northwest, National Association, as Trustee




Indenture




Dated as of November 10, 2009




 









 





CROSS-REFERENCE TABLE

This Cross-Reference Table is not part of the Indenture




	 	 	 	 	 	 	 
	Trust Indenture Act of 1939 Section	 	Indenture Section
	310
	 	(a)(1)	 	 	 7.09
	 
	 	(a)(2)	 	 	7.09
	 
	 	(a)(3)	 	Not applicable
	 
	 	(a)(4)	 	Not applicable
	 
	 	(a)(5)	 	 	7.09
	 
	 	(b)	 	7.08 and 7.10
	 
	 	(c)	 	Not applicable
	311
	 	(a)	 	 	*
	 
	 	(b)	 	 	*
	 
	 	(c)	 	Not applicable
	312
	 	(a)	 	 	5.01
	 
	 	(b)	 	 	*
	 
	 	(c)	 	 	*
	313
	 	(a)	 	 	5.03
	 
	 	(b)(1)	 	Not applicable
	 
	 	(b)(2)	 	 	*
	 
	 	(c)	 	 	*
	 
	 	(d)	 	 	*
	314
	 	(a)	 	 	5.02
	 
	 	(b)	 	Not applicable
	 
	 	(c)(1)	 	 	14.05
	 
	 	(c)(2)	 	 	14.05
	 
	 	(c)(3)	 	Not applicable
	 
	 	(d)	 	Not applicable
	 
	 	(e)	 	 	14.05
	 
	 	(f)	 	Not applicable
	315
	 	(a)	 	 	7.01
	 
	 	(b)	 	6.08 and 7.09
	 
	 	(c)	 	 	7.01
	 
	 	(d)	 	 	7.01
	 
	 	(e)	 	 	6.09
	316
	 	(a)(1)	 	6.01 and 6.07
	 
	 	(a)(2)	 	Not applicable
	 
	 	(b)	 	 	6.04
	 
	 	(c)	 	 	*
	317
	 	(a)	 	 	6.02
	 
	 	(b)	 	 	4.04(a)
	318
	 	(a)	 	 	14.08








 




			
	*	 	Automatically included under Section 318(c) of the Trust Indenture Act of 1939, as
amended





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	Article 1 DEFINITIONS
	 	 	1	 
	 
	Section 1.01. Definitions
	 	 	1	 
	 
	 	 	 	 
	Article 2 DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
	 	 	5	 
	 
	Section 2.01. Forms
	 	 	5	 
	 
	Section 2.02. Amount Unlimited; Issuable in Series
	 	 	6	 
	 
	Section 2.03. Authentication
	 	 	8	 
	 
	Section 2.04. Date and Denomination of Securities
	 	 	8	 
	 
	Section 2.05. Execution of Securities
	 	 	9	 
	 
	Section 2.06. Exchange and Registration of Transfer of Securities
	 	 	9	 
	 
	Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities
	 	 	11	 
	 
	Section 2.08. Temporary Securities
	 	 	12	 
	 
	Section 2.09. Cancellation of Securities Paid, etc
	 	 	12	 
	 
	Section 2.10. Computation of Interest
	 	 	13	 
	 
	Section 2.11. Form of Legend for Global Securities
	 	 	13	 
	 
	 	 	 	 
	Article 3 REDEMPTION OF SECURITIES; SINKING FUNDS
	 	 	13	 
	 
	Section 3.01. Applicability of Article
	 	 	13	 
	 
	Section 3.02. Notice of Redemption; Selection of Securities
	 	 	14	 
	 
	Section 3.03. Payment of Securities Called for Redemption
	 	 	14	 
	 
	Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with Securities
	 	 	15	 
	 
	Section 3.05. Redemption of Securities for Sinking Fund
	 	 	15	 
	 
	Section 3.06. Repayment at the Option of the Holder
	 	 	16	 
	 
	 	 	 	 
	Article 4 PARTICULAR COVENANTS OF THE COMPANY
	 	 	16	 
	 
	Section 4.01. Payment of Principal, Premium and Interest
	 	 	16	 
	 
	Section 4.02. Offices for Notices and Payments, etc
	 	 	17	 
	 
	Section 4.03. Appointment to Fill Vacancies in Trustee’s Office
	 	 	17	 
	 
	Section 4.04. Provision as to Paying Agent
	 	 	17	 
	 
	Section 4.05. Statement as to Compliance
	 	 	18	 
	 
	Section 4.06. Additional Amounts
	 	 	18	 
	 
	 	 	 	 
	Article 5 SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	19	 






 









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	Section 5.01. Securityholder Lists
	 	 	19	 
	 
	Section 5.02. Reports by the Company
	 	 	19	 
	 
	Section 5.03. Reports by the Trustee
	 	 	19	 
	 
	 	 	 	 
	Article 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 	 	19	 
	 
	Section 6.01. Events of Default
	 	 	19	 
	 
	Section 6.02. Payment of Securities on Default; Suit Therefor
	 	 	21	 
	 
	Section 6.03. Application of Moneys Collected by Trustee
	 	 	22	 
	 
	Section 6.04. Proceedings by Securityholders
	 	 	23	 
	 
	Section 6.05. Proceedings by Trustee
	 	 	24	 
	 
	Section 6.06. Remedies Cumulative and Continuing
	 	 	24	 
	 
	Section 6.07. Direction of Proceedings and Waiver of Defaults by
Securityholders
	 	 	24	 
	 
	Section 6.08. Notice of Defaults
	 	 	25	 
	 
	Section 6.09. Undertaking to Pay Costs
	 	 	25	 
	 
	 	 	 	 
	Article 7 CONCERNING THE TRUSTEE
	 	 	25	 
	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	25	 
	 
	Section 7.02. Reliance on Documents, Opinions, etc
	 	 	26	 
	 
	Section 7.03. No Responsibility for Recitals, etc
	 	 	28	 
	 
	Section 7.04. Ownership of Securities
	 	 	28	 
	 
	Section 7.05. Moneys to be Held in Trust
	 	 	28	 
	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	28	 
	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	29	 
	 
	Section 7.08. Indentures Not Creating Potential Conflicting Interests For The
Trustee
	 	 	29	 
	 
	Section 7.09. Eligibility of Trustee
	 	 	29	 
	 
	Section 7.10. Resignation or Removal of Trustee
	 	 	29	 
	 
	Section 7.11. Acceptance by Successor Trustee
	 	 	30	 
	 
	Section 7.12. Succession by Merger, etc
	 	 	31	 
	 
	Section 7.13. Other Matters Concerning the Trustee
	 	 	32	 
	 
	Section 7.14. Appointment of Authenticating Agent
	 	 	32	 
	 
	 	 	 	 
	Article 8 CONCERNING THE SECURITYHOLDERS
	 	 	33	 
	 
	Section 8.01. Action of Securityholders
	 	 	33	 






 









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	Section 8.02. Proof of Execution by Securityholders
	 	 	33	 
	 
	Section 8.03. Who Are Deemed Absolute Owners
	 	 	33	 
	 
	Section 8.04. Company-Owned Securities Disregarded
	 	 	34	 
	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	34	 
	 
	 	 	 	 
	Article 9 SECURITYHOLDERS’ MEETINGS
	 	 	34	 
	 
	Section 9.01. Purposes of Meetings
	 	 	34	 
	 
	Section 9.02. Call of Meetings by Trustee
	 	 	35	 
	 
	Section 9.03. Call of Meetings by Company or Securityholders
	 	 	35	 
	 
	Section 9.04. Qualifications for Voting
	 	 	35	 
	 
	Section 9.05. Quorum; Adjourned Meetings
	 	 	35	 
	 
	Section 9.06. Regulations
	 	 	36	 
	 
	Section 9.07. Voting
	 	 	36	 
	 
	Section 9.08. No Delay of Rights by Meeting
	 	 	37	 
	 
	 	 	 	 
	Article 10 SUPPLEMENTAL INDENTURES
	 	 	37	 
	 
	Section 10.01. Supplemental Indentures without Consent of Securityholders
	 	 	37	 
	 
	Section 10.02. Supplemental Indentures with Consent of Securityholders
	 	 	39	 
	 
	Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures
	 	 	39	 
	 
	Section 10.04. Notation on Securities
	 	 	40	 
	 
	Section 10.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee
	 	 	40	 
	 
	 	 	 	 
	Article 11 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	40	 
	 
	Section 11.01. Company May Consolidate, Merge Or Sell Assets on Certain Terms

	 	 	40	 
	 
	Section 11.02. Successor Corporation or Limited Liability Company to be
Substituted
	 	 	40	 
	 
	Section 11.03. Documents to be Given Trustee
	 	 	41	 
	 
	 	 	 	 
	Article 12 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	41	 
	 
	Section 12.01. Discharge of Indenture
	 	 	41	 
	 
	Section 12.02. Legal Defeasance
	 	 	42	 
	 
	Section 12.03. Covenant Defeasance
	 	 	43	 
	 
	Section 12.04. Deposited Moneys to be Held in Trust by Trustee; Miscellaneous
Provisions
	 	 	43	 
	 
	Section 12.05. Paying Agent to Repay Moneys Held
	 	 	43	 






 









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 12.06. Return of Unclaimed Moneys
	 	 	43	 
	 
	Section 12.07. Reinstatement
	 	 	44	 
	 
	 	 	 	 
	Article 13 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	44	 
	 
	Section 13.01. Indenture and Securities Solely Corporate Obligations
	 	 	44	 
	 
	 	 	 	 
	Article 14 MISCELLANEOUS PROVISIONS
	 	 	44	 
	 
	Section 14.01. Provisions Binding on Company’s Successors
	 	 	44	 
	 
	Section 14.02. Official Acts by Successor Corporation
	 	 	44	 
	 
	Section 14.03. Addresses for Notices, Notice to Holders, Waiver
	 	 	44	 
	 
	Section 14.04. New York Contract
	 	 	45	 
	 
	Section 14.05. Evidence of Compliance with Conditions Precedent
	 	 	45	 
	 
	Section 14.06. Legal Holidays
	 	 	45	 
	 
	Section 14.07. Securities in a Specified Currency other than Dollars
	 	 	45	 
	 
	Section 14.08. Trust Indenture Act to Control
	 	 	46	 
	 
	Section 14.09. Table of Contents, Headings, etc
	 	 	46	 
	 
	Section 14.10. Execution in Counterparts
	 	 	46	 
	 
	Section 14.11. Separability; Benefits
	 	 	46	 






 









 





     THIS INDENTURE, dated as of November 10, 2009 between Babcock & Brown Air Limited, a Bermuda
exempted company (the “Company”), and Wells Fargo Bank Northwest, National Association, as
Indenture Trustee (the “Trustee”),



WITNESSETH:




     WHEREAS, the Company has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized
in accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly authorized the execution
and delivery of this Indenture; and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:



ARTICLE 1

DEFINITIONS




     Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture shall have the respective
meanings specified in this Section 1.01. All other terms used in this Indenture which are defined
in the Trust Indenture Act of 1939, as amended, or which are by reference therein 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 this Indenture as originally executed.
The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.



Authenticating Agent:




     The term “Authenticating Agent” shall mean any Person authorized by the Trustee
pursuant to Section 7.14 to act on behalf of the Trustee to authenticate Securities.



Authorized Officer:




     The term “Authorized Officer” shall mean any of the Company’s directors, the Company’s
corporate secretary or the Company’s principal executive officer, principal financial officer or
principal accounting officer.



Beneficial Owner:




     The term “Beneficial Owner” shall mean a Person who is the beneficial owner of a
beneficial interest in a Global Security as reflected on the books of the Depositary or on the
books of a Person



 









 







maintaining an account with such Depositary (directly as a Depositary participant
or as an indirect participant, in each case in accordance with the rules of such Depositary).



Board of Directors:




     The term “Board of Directors” shall mean the Board of Directors of the Company or any
Committee of such Board or specified officers and employees of the Company to which the powers of
such Board have been lawfully delegated.



Company:




     The term “Company” shall mean Babcock & Brown Air Limited, a Bermuda exempted company,
until any successor corporation or limited liability company shall have become such pursuant to the
provisions of Article Eleven, and thereafter “Company” shall mean such successor, except as
otherwise provided in Section 11.02.



Depositary:




     The term “Depositary” shall mean, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency registered under
the Securities Exchange Act of 1934, as amended, that is designated to act as depositary for such
Securities as contemplated by Section 2.02.



Dollar:




     The term “Dollar” shall mean the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private debts.



Event of Default:




     The term “Event of Default” shall have the meaning specified in Section 6.01.



Global Security:




     The term “Global Security” shall mean a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.11 (or such legend as may be
specified as contemplated by Section 2.02 for such Securities).



Indenture:




     The term “Indenture” shall mean this instrument as originally executed or as it may be
amended or supplemented from time to time as herein provided, and shall include the form and terms
of particular series of Securities established as contemplated hereunder.



interest:




     The term “interest,” when used with respect to a non-interest bearing Security, means
interest payable after the principal thereof has become due and payable whether at maturity, by
declaration of acceleration, by call for redemption, pursuant to a sinking fund, or otherwise.



2









 





Non-Recourse Indebtedness:




     The term “Non-Recourse Indebtedness,” shall mean indebtedness the terms of which
provide that the lender’s claims for repayment of such indebtedness is limited solely to a claim
against the property which secures such indebtedness.



Officers’ Certificate:




     The term “Officers’ Certificate” shall mean a certificate signed by any one of the
Authorized Officers and delivered to the Trustee. Each such certificate shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 14.05 if
and to the extent required by the provisions of such Section.



Opinion of Counsel:




     The term “Opinion of Counsel” shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company, or may be other counsel, in any
case, satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 14.05 if and to the extent
required by the provisions of such Sections.



Original Issue Discount Security:




     The term “Original Issue Discount Security” shall mean any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01.



Overdue Rate:




     The term “Overdue Rate” with respect to each series of Securities shall mean the rate
of interest designated as such in the resolution of the Board of Directors or the supplemental
indenture, as the case may be, relating to such series as contemplated by Section 2.02, or if no
such rate is specified, the rate at which such Securities shall bear interest.



Person:




     The term “Person” shall mean any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.



principal office of the Trustee:




     The term “principal office of the Trustee,” or other similar term, shall mean the
office of the Trustee at which at any particular time its corporate trust business shall be
principally administered.



Responsible Officer:




     The term “Responsible Officer” when used with respect to the Trustee shall mean the
chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the
executive committee of the board of directors, the president, any executive vice president, any
senior vice president, any vice president, any second vice president, any assistant vice president,
the cashier, any assistant



3









 







cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer, any assistant 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 knowledge of and familiarity with the particular subject.



Security or Securities; Outstanding:




     The terms “Security” or “Securities” shall mean any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.



     The term “Outstanding,” when used with reference to Securities, shall, subject to the
provisions of Section 8.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except




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




     (b) Securities, or portions thereof, for the payment or redemption of which moneys in
the necessary amount shall have been deposited in trust with the Trustee or with any paying
agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent), provided that if such Securities
are to be redeemed prior to the maturity thereof, notice of such redemption shall have been
mailed as in Article Three provided, or provision satisfactory to the Trustee shall have
been made for mailing such notice;




     (c) Securities as to which defeasance has been effected pursuant to Section 12.02; and




     (d) Securities in lieu of or in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the terms of Section
2.07, unless proof satisfactory to the Trustee is presented that any such Securities are
held by persons in whose hands any of such Securities is a valid, binding and legal
obligation of the Company.



     In determining whether the holders of the requisite principal amount of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.



Securityholder:




     The term “Securityholder,” “holder of Securities,” or other similar terms,
shall mean any person in whose name at the time a particular Security is registered on the books of
the Company kept for that purpose in accordance with the terms hereof.



Specified Currency:




     The term “Specified Currency” shall mean the currency in which a Security is
denominated, which may include Dollars, any foreign currency or any composite of two or more
currencies.



4









 





Trust Indenture Act of 1939:




     The term “Trust Indenture Act of 1939” shall mean the Trust Indenture Act of 1939 as
it was in force at the date of execution of this Indenture, except as provided in Section 10.03.



Trustee:




     The term “Trustee” shall mean the corporation or association named as Trustee in this
Indenture and, subject to the provisions of Article Seven hereof, shall also include its successors
and assigns as Trustee hereunder. If pursuant to the provisions of this Indenture there shall be
at any time more than one Trustee hereunder, the term “Trustee” as used with respect to Securities
of any series shall mean the Trustee with respect to Securities of that series.



U.S. Government Obligations:




     The term “U.S. Government Obligations” shall have the meaning specified in Section
12.02.



ARTICLE 2

DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES




     Section 2.01. Forms. (a) The Securities of each series shall be in substantially such form as shall be
established by or pursuant to a resolution of the Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such legends or
endorsements placed thereon as the officers executing the same may approve (execution thereof to be
conclusive evidence of such approval) 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 the Securities of
such series may be listed, or to conform to usage.



     (b) The resolutions adopted by the Board of Directors or one or more indentures supplemental
hereto establishing the form and terms of the Securities of any series pursuant to Sections 2.01
and 2.02, respectively, of this Indenture, may provide for issuance of Global Securities. If
Securities of a series are so authorized to be issued as Global Securities, any such Global
Security may provide that it shall represent that aggregate amount of Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a
Global Security to reflect the amount, or any increase or decrease in the amount or changes in the
rights of holders of Securities represented thereby, shall be made in such manner and by such
person or persons as shall be specified therein.



     (c) The Trustee’s Certificate of Authentication on all Securities shall be in substantially
the following form:



     “This is one of the Securities of the series designated therein described in the
within-mentioned Indenture.



5









 





	 	 	 	 	 
	 	Wells Fargo Bank Northwest, National Association, as

Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer” 	 
	 	 	 	 
	 




     Section 2.02. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a resolution of the Board of Directors or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:



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



     (2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Sections 2.06, 2.07, 2.08, 3.03, 3.06 or 10.04);



     (3) the date or dates on which the principal and premium, if any, of the Securities of the
series is payable;



     (4) the rate or rates, or the method of determination thereof, at which the Securities of the
series shall bear interest, if any, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and, if other than as set forth in
Section 2.04, the record dates for the determination of holders to whom interest is payable;



     (5) in addition to the office or agency of the Company in the Borough of Manhattan, The City
of New York required to be maintained pursuant to Section 4.02, any other place or places where the
principal of, and premium, if any, and any interest on Securities of the series shall be payable;



     (6) the Specified Currency of the Securities of the series;



     (7) the currency or currencies in which payments on the Securities of the series are payable,
if other than the Specified Currency;



     (8) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the option
of the Company, pursuant to any sinking fund or otherwise;



     (9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof
and the price at which or process by which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;



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



6









 





     (11) 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;



     (12) if the principal of or interest on the Securities of the series are to be payable, at the
election of the Company or a holder thereof, in a coin or currency other than the Specified
Currency, the period or periods within which, and the terms and conditions upon which, such
election may be made;



     (13) if the amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other than the Specified
Currency, the manner in which such amounts shall be determined;



     (14) any Events of Default with respect to the Securities of the series, if not set forth
herein;



     (15) if other than the rate of interest stated in the title of the Securities of the series,
the applicable Overdue Rate;



     (16) in the case of any series of non-interest bearing Securities, the applicable dates for
purposes of clause (a) of Section 5.01;



     (17) if other than Wells Fargo Bank Northwest, National Association is to act as Trustee for
the Securities of the series, the name and Principal Office of such Trustee;



     (18) if either or both of Sections 12.02 and 12.03 do not apply to any Securities of the
series;



     (19) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the name of the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be borne by
any such Global Security in addition to or in lieu of that set forth in Section 2.11 and any
circumstances in addition to or in lieu of those set forth in clause (2) of Section 2.06 in which
any such Global Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee thereof;



     (20) any addition to the covenants set forth in Article Four which applies to Securities of
the series and whether any such covenant shall be subject to covenant defeasance under Section
12.03; and



     (21) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture).



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors
or in any such indenture supplemental hereto.



     Notwithstanding Section 2.02(2) herein and unless otherwise expressly provided with respect to
a series of Securities, the aggregate principal amount of a series of Securities may be increased
and additional Securities of such series may be issued up to the maximum aggregate principal amount
authorized with respect to such series as increased; provided that no Event of Default with respect
to such series has occurred and is continuing.



7









 





     Section 2.03. Authentication. At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article Two, the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the Company, signed by any
one of its Authorized Officers, which order shall set forth the number of separate Securities
certificates, the principal amount of each of the Securities to be authenticated, the date on which
the original issue of Securities is to be authenticated, the registered holder of each of the said
Securities and delivery instructions. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon:



     (1) a copy of any resolution or resolutions of the Board of Directors relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such resolution, in each case
certified by the Secretary or an Assistant Secretary of the Company;



     (2) an executed supplemental indenture, if any, relating thereto;



     (3) an Officers’ Certificate prepared in accordance with Section 14.05 which shall also state
to the best knowledge of the signers of such Certificate that no Event of Default with respect to
any series of Securities shall have occurred and be continuing; and



     (4) an Opinion of Counsel prepared in accordance with Section 14.05 to the effect:



          (a) that the terms of such Securities have been established by or pursuant to a resolution of
the Board of Directors or by a supplemental indenture as permitted by Section 2.02 in conformity
with the provisions of this Indenture;




          (b) that the Company has all requisite corporate power and authority to execute and deliver
such Securities;




          (c) that the execution and delivery of such Securities by the Company have been duly
authorized by all necessary corporate action on the part of the Company;




          (d) that such Securities have been duly and validly executed, and when duly authenticated by
the Trustee and issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms, subject to any applicable exceptions; and




          (e) that the execution and delivery by the Company of such Securities and the performance by
the Company of its obligations thereunder will not conflict with, constitute a default under or
violate any of the terms, conditions or provisions of the memorandum of association or bye-laws of
the Company.




     The Trustee shall have the right to decline to authenticate and deliver or cause to be
authenticated and delivered any Securities under this Section 2.03 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee, or a trust committee of directors or
trustees and/or vice presidents shall determine that such action would expose the Trustee to
personal liability to existing Securityholders.



     Section 2.04. Date and Denomination of Securities. The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated



8









 







by Section 2.02. In the absence of any such
specification with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any multiple thereof. Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the
officers of the Company executing the same may determine with the approval of the Trustee.



     Every Security shall be dated the date of its authentication.



     The person in whose name any Security of a particular series is registered at the close of
business on any record date (as hereinafter defined) with respect to any interest payment date for
such series shall be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Security upon any registration of transfer or exchange
subsequent to the record date and prior to such interest payment date; provided, however, that if
and to the extent that the Company shall default in the payment of the interest due on such
interest payment date, such defaulted interest shall be paid to the persons in whose names
Outstanding Securities of such series are registered on a subsequent record date established by
notice given by mail by or on behalf of the Company to the holders of such Securities not less than
15 days preceding such subsequent record date, such record date to be not less than five days
preceding the date of payment of such defaulted interest. Except as otherwise specified as
contemplated by Section 2.02 for Securities of a particular series, the term “record date” as used
in this Section 2.04 with respect to any regular interest payment date, shall mean, the last day of
the calendar month preceding such interest payment date if such interest payment date is the
fifteenth day of such calendar month, and shall mean the fifteenth day of the calendar month
preceding such interest payment date if such interest payment date is the first day of a calendar
month, whether or not such day shall be a day on which banking institutions in The City of New York
are authorized or required by law or executive order to close or remain closed.



     Interest on the Securities may at the option of the Company be paid by check mailed to the
persons entitled thereto at their respective addresses as such appear on the registry books of the
Company.



     Section 2.05. Execution of Securities. The Securities shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of any one of the Company’s Authorized Officers. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form herein recited, executed by
the Trustee by the manual signature of an authorized officer, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture.



     In case any officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed
of as though the person who signed such Securities had not ceased to be such officer of the
Company; and any Security may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Security, shall be the proper officers of the Company, although at
the date of the execution of this Indenture any such person was not such an officer.



     Section 2.06. Exchange and Registration of Transfer of Securities. Securities of any series may be exchanged for a like aggregate principal amount of
Securities of the same series of other authorized denominations. Securities to be exchanged shall
be surrendered, at the option of the holders thereof, either at the office or agency designated and
maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 4.02 or at



9









 







any of such other offices or agencies as may
be designated and maintained by the Company for such purpose in accordance with the provisions of
Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and
deliver in exchange therefor the Security or Securities which the Security holder making the
exchange shall be entitled to receive. Each person designated by the Company pursuant to the
provisions of Section 4.02 as a person authorized to register and register transfer of the
Securities is sometimes herein referred to as a “Security registrar”.



     The Company shall keep, at each such office or agency, a register for each series of
Securities issued hereunder (the registers of all Security registrars being herein sometimes
collectively referred to as the “Security register” or the “registry books of the Company”) in
which, subject to such reasonable regulations as it may prescribe, the Company shall register
Securities and shall register the transfer of Securities as in this Article Two provided. The
Security register shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the Security registrar shall be
open for inspection by the Trustee and any Security registrar other than the Trustee. Upon due
presentment for registration or registration of transfer of any Security of any series at any
designated office or agency, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Security or Securities
of the same series for an equal aggregate principal amount. Registration or registration of
transfer of any Security by any Security registrar in the registry books of the Company maintained
by such Security registrar, and delivery of such Security, duly authenticated, shall be deemed to
complete the registration or registration of transfer of such Security.



     No person shall at any time be designated as or act as a Security registrar unless such person
is at such time empowered under applicable law to act as such under and to the extent required by
applicable law and regulations.



     All Securities presented for registration of transfer or for exchange, redemption or payment
shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer or exchange in form satisfactory to the Company and
the Trustee duly executed by, the holder or his attorney duly authorized in writing.



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



     The Company shall not be required to exchange or register a transfer of (a) any Securities of
any series for the period of 15 days next preceding the selection of Securities of that series to
be redeemed and thereafter until the date of the mailing of a notice of redemption of Securities of
that series selected for redemption, or (b) any Securities selected, called or being called for
redemption in whole or in part except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.



     The provisions of clauses (1), (2), (3), (4), (5), (6) and (7) below shall apply only to
Global Securities:



     (1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or nominee thereof or custodian therefor, and each such Global Security shall constitute
a single Security for all purposes under this Indenture.



     (2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in



10









 







part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue its services as Depositary for such Global Security and no
successor Depositary has been appointed within 90 days after such notice or (ii) ceases to be a
“clearing agency” registered under Section 17A of the Securities Exchange Act of 1934 when the
Depositary is required to be so registered to act as the Depositary and so notifies the Company,
and no successor Depositary has been appointed within 90 days after such notice, (B) the Company
determines at any time that the Securities shall no longer be represented by Global Securities and
shall inform such Depositary of such determination and participants in such Depositary elect to
withdraw their beneficial interests in the Securities from such Depositary, following notification
by the Depositary of their right to do so, or (C) such exchange is made upon request by or on
behalf of the Depositary in accordance with customary procedures, following the request of a
Beneficial Owner seeking to exercise or enforce its rights under the Securities.



     (3) Subject to clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.



     (4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a nominee thereof.



     (5) Subject to the provisions of clause (7) below, the registered Holder may grant proxies and
otherwise authorize any Person, including Agent Members (as defined below in clause (7)) and
Persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.



     (6) In the event of the occurrence of any of the events specified in clause (2) above, the
Company will promptly make available to the Trustee a reasonable supply of certificated Securities
in definitive, fully registered form, without interest coupons.



     (7) Neither any members of, or participants in, the Depositary (collectively, the “Agent
Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global Security registered in the name of the Depositary
or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company or the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent
Members and any other person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the rights of a holder of any
Security.



     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 Company in the case of a mutilated Security shall, and in the case of a lost, stolen
or destroyed Security may in its discretion, execute and, upon the written request or authorization
of any officer of the Company, the Trustee shall authenticate and deliver, a new Security of the
same series, 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 Company and to
the Trustee such security or indemnity as may be required by them to save



11









 







each of them harmless
from any loss or liability which any of them may suffer if a Security is replaced and subsequently
presented or claimed for payment and, in every case of destruction, loss or theft, the applicant
shall also furnish the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and the ownership thereof.



     Upon the issuance of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses connected therewith. In case any Security which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substituted Security, pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company
and to the Trustee such security or indemnity as may be required by them to save each of them
harmless from any loss or liability which any of them may suffer if a Security is replaced and
subsequently presented or claimed for payment and, in case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security and
the ownership thereof.



     Every substituted Security issued pursuant to the provisions of this Section 2.07 by virtue of
the fact that any Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be found at
any time, 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 with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.



     Section 2.08. Temporary Securities. Pending the preparation of definitive Securities of any series the Company may execute and
the Trustee shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities 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 Company. Every such temporary Security shall be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with the same effect, as
the definitive Securities in lieu of which they are issued. Without unreasonable delay the Company
will execute and deliver to the Trustee definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor, at the option of
the holders thereof, either at the office or agency to be designated and maintained by the Company
for such purpose in the Borough of Manhattan, The City of New York,
in accordance with the provisions of Section 4.02 or at any of such other offices or agencies
as may be designated and maintained by the Company for such purpose in accordance with the
provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive Securities of the same
series. Such exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.



     Section 2.09. Cancellation of Securities Paid, etc. All Securities surrendered for the purpose of payment, redemption, repayment, exchange or
registration of transfer or for credit against any sinking fund shall, if surrendered to the
Company, any Security registrar, any paying agent or any other agent of the Company or of the
Trustee, be delivered to the Trustee and promptly cancelled by it, or, if surrendered to the
Trustee, shall be promptly cancelled by it, and no Securities shall be issued in lieu thereof
except as



12









 







expressly permitted by any of the provisions of this Indenture. The Trustee may dispose
of cancelled Securities in accordance with its customary procedures and deliver a certificate of
such disposition to the Company or, at the written request of the Company, shall deliver cancelled
Securities to the Company. If the Company shall 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 2.10. Computation of Interest. Except as otherwise specified as contemplated by Section 2.02 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.



     Section 2.11. Form of Legend for Global Securities. Unless otherwise specified as contemplated by Section 2.02 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form (or such other form as a securities exchange or Depositary may
request or require):



     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST
COMPANY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A NOMINEE
OF THE DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY
TRUST COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY.



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



ARTICLE 3

REDEMPTION OF SECURITIES; SINKING FUNDS




     Section 3.01. Applicability of Article. The provisions of this Article shall be applicable, as the case may be, (i) to the
Securities of any series which are redeemable before their maturity and (ii) to any sinking fund
for the retirement of Securities of any series, in either case except as otherwise specified as
contemplated by Section 2.02 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.”



13









 





     Section 3.02. Notice of Redemption; Selection of Securities. In case the Company shall desire to exercise any right to redeem all, or, as the case may
be, any part of, the Securities of any series in accordance with their terms, it shall fix a date
for redemption and shall mail a notice of such redemption at least 10 and not more than 60 days
prior to the date fixed for redemption to the holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on the registry books of
the Company and to the Trustee, except as the resolutions adopted by the Board of Directors to
establish the terms of any series of Securities may otherwise provide. Such mailing shall be by
first class mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the holder of any Security of a
series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.



     Each such notice of redemption shall specify the date fixed for redemption, the redemption
price at which the Securities of such series are to be redeemed (or if not then ascertainable, the
manner of calculation thereof), the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the date fixed for
redemption will be paid as specified in said notice and that on and after said date any interest
thereon or on the portions thereof to be redeemed will cease to accrue. Where the redemption price
is not ascertainable at the time the notice of redemption is given as aforesaid, the Company shall
notify the Trustee of said redemption price promptly after the calculation thereof. If less than
all the Securities of a series are to be redeemed, the notice of redemption shall specify the
number or numbers of the Securities of that series to be redeemed. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of that series in
principal amount equal to the unredeemed portion thereof will be issued.



     Prior to the redemption date specified in the notice of redemption given as provided in this
Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or, if
the Company is acting as its own paying agent, will segregate and hold in trust as provided in
Section 4.04) an amount of money sufficient to redeem on the redemption date all the Securities or
portions thereof so
called for redemption, together with accrued interest to the date fixed for redemption. If
less than all the Securities of a series are to be redeemed, the Company will give the Trustee
notice not less than 10 days (or such shorter period as may be acceptable to the Trustee) prior to
the redemption date as to the aggregate principal amount of Securities of such series to be
redeemed and the Trustee shall select or cause to be selected, in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities of that series or portions thereof to
be redeemed. Securities of a series may be redeemed in part only in multiples of the smallest
authorized denomination of that series.



     Section 3.03. Payment of Securities Called for Redemption. If notice of redemption has been given as provided in Section 3.02 or Section 3.05, the
Securities or portions of Securities of the series with respect to which such notice has been given
shall become due and payable on the date and at the place or places stated in such notice at the
applicable redemption price, together with any interest accrued to the date fixed for redemption,
and on and after said date (unless the Company shall default in the payment of such Securities or
portions of such Securities, together with any interest accrued to said date) any interest on the
Securities of such series or portions of Securities of such series so called for redemption shall
cease to accrue. On presentation and surrender of such Securities at a place of payment in said
notice specified, the said Securities or the specified portions thereof shall be paid and redeemed
by the Company at the applicable redemption price, together with any interest accrued thereon to
the date fixed for redemption; provided, however, that any regularly scheduled installment of
interest becoming



14









 







due on or prior to the date fixed for redemption shall be payable to holders of
such Securities registered as such on the relevant record date according to their terms.



     Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized denominations, in aggregate principal
amount equal to the unredeemed portion of the Security so presented.



     Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with Securities. In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities
of that series theretofore purchased or otherwise acquired by the Company or (b) receive credit for
the principal amount of Securities of that series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities; 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 mandatory sinking fund payment shall
be reduced accordingly.



     Section 3.05. Redemption of Securities for Sinking Fund. Not less than 10 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee a certificate signed by any Authorized Officer specifying
the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash (which cash may be
deposited with the Trustee or with one or more paying agents or, if the Company is acting as its
own paying agent, segregated and held in trust as provided in Section 4.04) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.04 (which Securities, if not theretofore delivered, will accompany such
certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such series. Such
certificate shall also state that no Event of Default has occurred and is continuing with respect
to such series. Such certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the Company to deliver such
certificate (or to deliver the Securities specified in this paragraph), the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash
and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory
sinking fund payment without the option to deliver or credit Securities as provided in Section 3.04
and without the right to make any optional sinking fund payment, if any, with respect to such
series.



     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000 or
the equivalent amount in the Specified Currency (if other than Dollars) (or a lesser sum if the
Company shall so request or determine) with respect to the Securities of any particular series
shall be applied by the Trustee (or by the Company if the Company is acting as its own paying
agent) on the sinking fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the next sinking fund payment date following the date of
such payment) to the redemption of such Securities at the redemption price specified in such
Securities for operation of the sinking fund together with accrued interest, if any, to the date
fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee (or by
the Company if the Company is acting as its own paying agent) to the redemption of Securities shall
be added to the next cash sinking fund payment received by the Trustee (or if the Company is acting
as its own paying agent, segregated and held in trust as provided in Section 4.04) for such series
and, together with such payment (or such amount so segregated), shall be



15









 







applied in accordance with
the provisions of this Section 3.05. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or if the Company is acting as its own
paying agent, segregated and held in trust as provided in Section 4.04) on the last sinking fund
payment date with respect to Securities of such series and not held for the payment or redemption
of particular Securities of such series shall be applied by the Trustee (or by the Company if the
Company is acting as its own paying agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the principal of the
Securities of that series at maturity.



     The Trustee shall select or cause to be selected the Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of Section 3.02, and the
Company shall cause notice of the redemption thereof to be given in the manner provided in Section
3.02 except that the notice of redemption shall also state that the Securities are being redeemed
by operation of the sinking fund. 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.



     On or before each sinking fund payment date, the Company shall pay to the Trustee in cash (or,
if the Company is acting as its own paying agent, will segregate and hold in trust as provided in
Section 4.04) a sum equal to any interest accrued to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to this Section.



     Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of such Securities by operation of the sinking fund for
such series during the continuance of a default in payment of interest, if any, on such Securities
or of any Event of Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Securities, except that if the notice of redemption of any such
Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
(or the Company if the Company is acting as its own paying agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited
with the Trustee (or segregated by the Company) for that purpose in accordance with the terms
of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter paid into such
sinking fund shall, during the continuance of such default or Event of Default, be held as security
for the payment of such Securities; provided, however, that in case such default or Event of
Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied
on the next sinking fund payment date for such Securities on which such moneys may be applied
pursuant to the provisions of this Section.



     Section 3.06. Repayment at the Option of the Holder. Any series of Securities may be made, by provision contained in or established pursuant to
a supplemental indenture or a resolution of the Board of Directors pursuant to Section 2.02 hereof,
subject to repayment, in whole or in part, at the option of the holder on a date or dates specified
prior to maturity, at a price equal to 100% of the principal amount thereof, together with accrued
interest to the date of repayment, on such notice as may be required, provided, however, that the
holder of a Security may only elect partial repayment in an amount that will result in the portion
of such Security that will remain Outstanding after such repayment constituting an authorized
denomination, or combination thereof, of such Securities.



ARTICLE 4

PARTICULAR COVENANTS OF THE COMPANY




     Section 4.01. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, premium, if any, and interest, if
any, on each of the Securities of that series at the places, at the respective times and in the
manner provided in such Securities.



16









 





     Section 4.02. Offices for Notices and Payments, etc. As long as any of the Securities of a series remain Outstanding, the Company will designate
and maintain in the Borough of Manhattan, The City of New York, an office or agency where the
Securities of that series may be presented for payment, an office or agency where the Securities of
that series may be presented for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the Company in respect of the
Securities of that series or of this Indenture may be served. In addition to such office or
offices or agency or agencies, the Company may from time to time designate and maintain one or more
additional offices or agencies within or outside the Borough of Manhattan, The City of New York,
where the Securities of that series may be presented for registration of transfer or for exchange,
and the Company may from time to time rescind such designation, as it may deem desirable or
expedient. The Company will give to the Trustee written notice of the location of each such office
or agency and of any change of location thereof. In case the Company shall fail to maintain any
such office or agency in the Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location thereof, presentations and demands may be
made and notices may be served at the principal office of the Trustee.



     The Company hereby initially designates the office of the Trustee located at 45 Broadway, 14th
floor, New York, New York 10006; Attn: Corporate Trust Services, as the office or agency of the
Company in the Borough of Manhattan, The City of New York, where the Securities of each series may
be presented for payment, for registration of transfer and for exchange as in this Indenture
provided and
where notices and demands to or upon the Company in respect of the Securities of each series
or of this Indenture may be served.



     Section 4.03. Appointment to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a successor trustee, so that there shall at all
times be a Trustee with respect to each series of Securities hereunder.



     Section 4.04. Provision as to Paying Agent. (a) If the Company shall appoint a paying agent other than the Trustee with respect to
the Securities of any series, it will cause 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 4.04:



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




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




          (3) that at any time during the continuance of any failure by the Company (or by any other
obligor on the Securities of such series) specified in the preceding paragraph (2), such paying
agent will, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by it.




     (b) If the Company shall act as its own paying agent with respect to the Securities of any
series, it will, on or before each due date of the principal of, premium, if any, or interest, if
any, on the Securities of such series, set aside, segregate and hold in trust for the benefit of
the holders of such Securities a sum sufficient to pay such principal, premium, if any, or
interest, if any, so becoming due and will promptly notify the Trustee of any failure to take such
action and of any failure by the Company (or



17









 







by any other obligor on the Securities of such series)
to make any payment of the principal of, premium, if any, or interest, if any, on the Securities of
such series when the same shall become due and payable.



     (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



     (d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Sections 12.05 and 12.06.



     (e) Whenever the Company shall have one or more paying agents with respect to the Securities
of any series, it will, prior to each due date of the principal of, premium, if any, or interest,
if any, on the Securities of such series, deposit with a designated paying agent a sum sufficient
to pay the principal, premium, if any, and interest, if any, so becoming due, such sum to be held
in trust for the benefit of the persons entitled to such principal, premium, if any, or interest,
if any, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee
of any failure so to act.



     Section 4.05. Statement as to Compliance. The Company will furnish to the Trustee on or before May 1, in each year (beginning with
the first May 1 following the first date of issuance of any Securities under this Indenture) a
brief certificate (which need not comply with Section 14.05) from the principal executive,
financial or accounting officer of the Company as required by Section 314(a)(4) of the Trust
Indenture Act of 1939. Except with respect to the receipt of Securities payments and any default
or Event of Default information contained in the certificate delivered to it pursuant to this
Section 4.05, the Trustee shall have no duty to review, ascertain or confirm the Company’s
compliance with, or breach of, any representation, warranty or covenant made in this Indenture.



     Section 4.06. Additional Amounts. If the Securities of a series provide for the payment of additional amounts, at least 10
days prior to the first interest payment date with respect to that series of Securities and at
least 10 days prior to each date of payment of principal of, premium, if any, or interest on the
Securities of that series if there has been a change with respect to the matters set forth in the
below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the principal
paying agent, if other than the Trustee, an Officers’ Certificate instructing the Trustee and such
paying agent whether such payment of principal of or interest on the Securities of that series
shall be made to holders of the Securities of that series without withholding or deduction for or
on account of any tax, assessment or other governmental charge described in the Securities of that
series. If any such withholding or deduction shall be required, then such Officers’ Certificate
shall specify by country the amount, if any, required to be withheld or deducted on such payments
to such holders and shall certify the fact that additional amounts will be payable and the amounts
so payable to each holder, and the Company shall pay to the Trustee or such paying agent the
additional amounts required to be paid by this Section. The Company covenants to indemnify the
Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished
pursuant to this Section.



     Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Security of any series,
such mention shall be deemed to include mention of the payment of additional amounts provided by
the terms of such series established hereby or pursuant hereto to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment



18









 







of additional amounts (if applicable) in any provision hereof shall
not be construed as excluding the payment of additional amounts in those provisions hereof where
such express mention is not made.



ARTICLE 5

SECURITYHOLDER LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE




     Section 5.01. Securityholder Lists. If and so long as the Trustee shall not be the Security registrar for the Securities of any
series, the Company and any other obligor on the Securities will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses
of the holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act
of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest
on such Securities, as hereinabove specified, as of such record date, and on dates to be determined
pursuant to Section 2.02 for non-interest bearing Securities in each year, and (b) at such other
times as the Trustee may request in writing, within
thirty days after receipt by the Company of any such request as of a date not more than 15
days prior to the time such information is furnished.



     Section 5.02. Reports by the Company. The Company covenants to file with the Trustee, within 15 days after the Company is
required to file the same with the Securities and Exchange Commission, copies of the annual reports
and of the information, documents and other reports that the Company is required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates). The Trustee is under no duty to examine such reports,
information or documents to ensure compliance with the provisions of this Indenture or to ascertain
the correctness or otherwise of the information or the statements contained therein. The Trustee
is entitled to assume such compliance and correctness unless a Responsible Officer of the Trustee
is informed otherwise.



     Section 5.03. Reports by the Trustee. Any Trustee’s report required under Section 313(a) of the Trust Indenture Act of 1939 shall
be transmitted as provided in Section 313(c) of the Trust Indenture Act of 1939, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no
more than 60 days prior thereto.



ARTICLE 6

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT




     Section 6.01. Events of Default. The term “Event of Default” whenever used herein with respect to Securities of any series
means any one of the following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 2.02 hereof, continued for the period of
time, if any, and after the giving of notice, if any, designated in this Indenture or as may be
established with respect to such Securities as contemplated by Section 2.02 hereof, as the case may
be, unless it is either inapplicable or is specifically deleted or modified in the applicable
resolution of the Board of Directors or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated by Section 2.02:



19









 





     (a) default in the payment of the principal of, or premium, if any, on any Security of such
series when and as the same shall become due and payable whether at maturity, upon redemption, by
declaration, repayment or otherwise; or



     (b) default for 30 days in the payment of any installment of interest on any Security of such
series when and as the same shall become due and payable; or



     (c) default in the making or satisfaction of any sinking fund payment or analogous obligation
as and when the same shall become due and payable by the terms of the Securities of such series; or



     (d) failure on the part of the Company duly to observe or perform any other of the covenants
or agreements on the part of the Company in respect of the Securities of such series contained in
this Indenture (other than a covenant or agreement in respect of the Securities of such series a
default in whose observance or performance is elsewhere in this Section 6.01 specifically dealt
with) continued for a period of 60 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company by the Trustee by
registered mail, or to the Company and the Trustee by the holders of at least twenty-five percent
in aggregate principal amount of the Securities of such series at the time Outstanding; or



     (e) a decree or order by a court having jurisdiction in the premises shall have been entered
adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the U.S. Federal Bankruptcy Code or any other similar
applicable U.S. Federal or State law, and such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee (or other similar
official) in bankruptcy or insolvency of the Company or of all or substantially all of the property
of the Company, or for the winding up or liquidation of the affairs of the Company, shall have been
entered, and such decree or order shall have continued undischarged and unstayed for a period of 60
days; or



     (f) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against the Company, or shall file a petition or
answer or consent seeking reorganization under the U.S. Federal Bankruptcy Code or any other
similar applicable U.S. Federal or State law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee or assignee (or other
similar official) in bankruptcy or insolvency of it or of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing the inability of the Company to pay its
debts generally as they become due; or



     (g) any other Event of Default provided in the applicable resolution of the Board of Directors
or in the supplemental indenture under which such series of Securities is issued, as the case may
be, as contemplated by Section 2.02.



     If an Event of Default as contemplated by Sections 6.01(f) or 6.01(g) occurs, the principal
amount (or, if the Securities of such series are Original Issue Discount Securities, such portions
of the principal amount as may be specified in the terms of such series) with respect to Securities
of any series at the time Outstanding will become due and payable immediately. If any other Event
of Default with respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in each and every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the Trustee or the holders of not
less than twenty-five percent in aggregate principal amount of the Securities of such series then
Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders of such series), may declare the principal amount (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal amount as



20









 







may be
specified in the terms of such series) of all the Securities of such series to be due and payable
immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if, at any time after
the principal amount (or, if the Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such series) of the
Securities of any series shall have been so declared or otherwise become 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 Company shall pay or shall deposit with the Trustee a sum sufficient
to pay all matured installments of interest, if any, upon all of the Securities of such series and
the principal of, and premium, if any, on any and all
Securities of such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal at the Overdue Rate applicable to such
series, to the date of such payment or deposit) and all amounts payable to the Trustee pursuant to
the provisions of Section 7.06, and any and all defaults under this Indenture with respect to such
series of Securities, other than the nonpayment of principal of and accrued interest on Securities
of such series which shall have become due solely by acceleration, shall have been remedied or
cured or waived or provision shall have been made therefor to the satisfaction of the Trustee—then
and in every such case the holders of a majority in aggregate principal amount of the Securities of
such series then Outstanding, by written notice to the Company and to the Trustee, may waive all
defaults with respect to such series and rescind and annul such declaration or acceleration and its
consequences; but no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.



     In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceeding 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 the Company and the Trustee shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceeding had been taken.



     Section 6.02. Payment of Securities on Default; Suit Therefor. The Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any Security of any series as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days, (b) in case default shall
be made in the payment of the principal of, or premium, if any, on any Security of any series as
and when the same shall become due and payable, whether at maturity of the Securities of that
series or upon redemption or by declaration, repayment or otherwise or (c) in case of default in
the making or satisfaction of any sinking fund payment or analogous obligation when the same
becomes due by the terms of the Securities of any series—then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holder of any such Security (or holders of
any series of Securities in the case of clause (c) above) the whole amount that then shall have
become due and payable on any such Security (or Securities of any such series in the case of clause
(c) above) for principal, premium, if any, and interest, if any, 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 the overdue installments of interest, if any, at the Overdue Rate
applicable to any such Security (or Securities of any such series in the case of clause (c) above);
and, in addition thereto, such further amount as shall be sufficient to cover costs and expenses of
collection, and any further amounts payable to the Trustee pursuant to the provisions of Section
7.06.



     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of any express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute



21









 







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



     In case there shall be pending proceedings for the bankruptcy, for the insolvency or for the
reorganization of the Company or any other obligor on the Securities of any series under the U.S.
Federal Bankruptcy Code or any other similar applicable U.S. Federal or State law, or in case a
receiver or trustee (or other similar official) shall have been appointed for the property of the
Company or such other
obligor, or in the case of any other similar judicial proceedings relative to the Company or
other obligor on the Securities of any series, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal (or, if the Securities of any
series are Original Issue Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in accordance with Section 6.01),
premium, if any, and interest, if any, owing and unpaid in respect of the Securities of any series
and, in case of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee and of the
Securityholders of any series allowed in such judicial proceedings relative to the Company or any
other obligor on the Securities of any series, its or their creditors, or its or their property,
and to collect and receive any moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of costs and expenses of collection, and any further
amounts payable to the Trustee pursuant to the provisions of Section 7.06 and incurred by it up to
the date of such distribution; and any receiver, assignee or trustee (or other similar official) in
bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee costs and expenses of collection
and any further amounts payable to the Trustee pursuant to the provisions of Section 7.06 and
incurred by it up to the date of such distribution.



     Nothing herein contained 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 any of the Securities of any 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.



     All rights of action and of asserting claims under this Indenture, or under the Securities of
any series, may be enforced by the Trustee without the possession of any of the Securities of such
series or the production thereof in 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 be for the ratable benefit of the holders of the
Securities in respect of which such action was taken. In any proceedings brought by the Trustee
(and also any proceedings in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture, to which the Trustee shall be a
party) the Trustee shall be held to represent all the holders of the Securities to which such
proceedings relate, and it shall not be necessary to make any holders of such Securities parties to
any such proceedings.



     Section 6.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to this Article and, if an Event of Default
has occurred and is continuing, any money or other property distributable in respect of the
Company’s obligations under the Indenture shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon



22









 







presentation of the several
Securities in respect of which moneys have been collected, and the notation thereon of the payment,
if only partially paid, and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee pursuant to the provisions of Section
7.06;



     SECOND: In case the principal of the Outstanding Securities in respect of which such moneys
have been collected shall not have become due (at maturity, upon redemption, by declaration,
repayment or otherwise) and be unpaid, to the payment of interest, if any, on such Securities, in the
order of the maturity of the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of interest at the
Overdue Rate applicable to such Securities, such payments to be made ratably to the person entitled
thereto;



     THIRD: In case the principal of the Outstanding Securities in respect of which such moneys
have been collected shall have become due (at maturity, upon redemption, by declaration, repayment
or otherwise), to the payment of the whole amount then owing and unpaid upon such Securities for
principal, premium, if any, and interest, if any, with interest on the overdue principal, and
premium, if any, and (to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the Overdue Rate applicable to such Securities; and in
case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon such
Securities, then to the payment of such principal, premium, if any, and interest, if any, without
preference or priority of principal, and premium, if any, over interest, if any, or of interest, if
any, over principal, and premium, if any, or of any installment of interest, if any, over any other
installment of interest, if any, or of any such Security over any other such Security, ratably to
the aggregate of such principal, premium, if any, and accrued and unpaid interest, if any; and



     FOURTH: To the payment of the remainder, if any, to the Company, its successors or assigns, or
to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction
may direct.



     Section 6.04. Proceedings by Securityholders. No holder of any Security of any series shall have any right by virtue of 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
other similar official), or for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default with respect to Securities of such
series and of the continuance thereof, as hereinbefore provided, (ii) the holders of not less than
twenty-five percent 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 and 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,
and (iii) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity,
shall not have received from the holders of a majority in principal amount of the Securities of
such series then Outstanding a direction inconsistent with that request, and shall have neglected
or refused to institute any such action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the taker and holder of every Security with every other taker and
holder and the Trustee, that no one or more holders of Securities of such series shall have any
right in any manner whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of Securities of such series, 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 matter herein provided and for the equal, ratable and common benefit
of all holders of Securities of such series.



23









 





     Notwithstanding any other provisions in this Indenture, however, the right of any holder of
any Security to receive payment of the principal of, premium, if any, and interest, if any, on such
Security, on or after the respective due dates expressed in such Security, or upon redemption, by
declaration, repayment or otherwise, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the consent of such
holder, and no provision of the Securities of any series or of this Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest, if any, on the
Securities of such series at the respective places, at the respective times, at the respective
rates and in the coin or currency, therein and herein prescribed.



     Section 6.05. Proceedings by Trustee. 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 by suit in equity or by action at law or by proceeding 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.



     Section 6.06. Remedies Cumulative and Continuing. All powers and remedies given by this Article Six to the Trustee or to the Securityholders
of any series shall, to the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the holders of such
Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of
any holder of any such Securities to exercise any right or power accruing upon any 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 an acquiescence therein; and, subject to the provisions of
Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the
Securityholders of any series may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders of such series.



     Section 6.07. Direction of Proceedings and Waiver of Defaults by Securityholders. (a) The holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series; provided, however, that
(subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceeding so directed would involve the
Trustee in personal liability or expense for which it is not adequately indemnified.



     (b) Prior to any acceleration or declaration accelerating the maturity of the Securities of
any series, the holders of a majority in aggregate principal amount of the Securities of such
series at the time Outstanding may, on behalf of the holders of all of the Securities of such
series, waive any past default or Event of Default with respect to such series and its consequences
except a default in the payment of interest, if any, on, or the principal of or premium, if any, on
any Security of such series, or in the payment of any sinking fund installment or analogous
obligation with respect to Securities of such series, or in respect of a covenant or provision
hereof which under Section 10.02 cannot be modified or amended without the consent of the holder of
each Security affected. Upon any such waiver the Company, the Trustee and the holders of the
Securities of that 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 Event of



24









 







Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 6.07(b), said default or Event of Default shall
for all
purposes of the Securities of such series and this Indenture be deemed to have been cured and
to be not continuing.



     Section 6.08. Notice of Defaults. The Trustee shall, within 90 days after the occurrence of a default with respect to the
Securities of any series, mail to all holders of Securities of such series, as the names and
addresses of such holders appear upon the registry books of the Company, notice of all defaults
with respect to such series known to the Trustee, unless such defaults shall have been cured or
waived before the giving of such notice (the term “defaults” for the purpose of this Section 6.08
being hereby defined to be the events specified in Section 6.01 or established with respect to such
Securities as contemplated by Section 2.02, not including the periods of grace, if any, provided
for therein or established with respect to such Securities as contemplated by Section 2.02 and
irrespective of the giving of the notices specified in clauses (d) and (e) of Section 6.01 or
established with respect to such Securities as contemplated by Section 2.02); provided, however,
that except in the case of default in the payment of the principal of, premium, if any, or
interest, if any, on any of the Securities of such series or in the making of any sinking fund
installment or analogous obligation with respect to such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the holders of Securities of such series.



     Section 6.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder of any Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, omitted or suffered 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 6.09 shall not apply (i) to any suit instituted by the
Trustee, (ii) to any suit instituted by any holder of Securities of any series or group of such
holders, holding in the aggregate more than ten percent in principal amount of the Outstanding
Securities of such series or (iii) to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of, premium, if any, or interest, if any, on any Security (A) on or
after the due date expressed in such Security, (B) on or after the date fixed for redemption or
repayment or (C) after such Security shall have become due by declaration.



ARTICLE 7

CONCERNING THE TRUSTEE




     Section 7.01. Duties and Responsibilities of Trustee. With respect to the holders of any series of Securities issued hereunder, the Trustee,
prior to the occurrence of an Event of Default with respect to the Securities of such series and
after the curing or waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default with respect to the Securities of a series has
occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series, 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.



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



25









 





     (a) 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 Events of Default with respect to such series which may have
occurred:



          (1) the duties and obligations of the Trustee with respect to the Securities of a series shall
be determined solely by the express provisions of this Indenture, and the Trustee shall not be
liable 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




          (2) in the absence of bad faith on the part of the Trustee, the Trustee may 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 which 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;




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



     (c) the Trustee shall not be liable with respect to any action taken, omitted or suffered to
be taken by it in good faith in accordance with the direction of the holders of Securities of any
series pursuant to Section 6.07 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 Securities of such series;



     (d) whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct of, the liability of or affording protection to the Trustee for any series of
Securities shall be subject to the provisions of this Section 7.01;



     (e) the Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company; and



     (f) money held in trust by the Trustee need not be segregated from other funds except as
required by law.



     None of the provisions of this Indenture shall be construed as requiring the Trustee to expend
or risk its own funds or otherwise to incur any personal financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.



     The provisions of this Section 7.01 are in furtherance of and subject to Section 315 of the
Trust Indenture Act of 1939.



     Section 7.02. Reliance on Documents, Opinions, etc. In furtherance of and subject to the Trust Indenture Act of 1939, and subject to the
provisions of 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, direction,
consent, order, or



26









 







other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;



     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an instrument signed in the name of the Company by any one of its
Authorized Officers (unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a
copy thereof certified by the Secretary, an Assistant Secretary or an Attesting Secretary of the
Company;



     (c) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, omitted or suffered to be taken by it
hereunder in good faith and in accordance with such Opinion of Counsel;



     (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 which might be
incurred therein or thereby;



     (e) the Trustee shall not be liable for any action taken, omitted or suffered 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 inquiry or investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document unless requested in
writing so to do by the holders of a majority in aggregate principal amount of the Securities of
any series affected then Outstanding; provided, however, that if the payment within a reasonable
time to the Trustee of the costs and 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 conferred upon 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;
and the reasonable expense of such investigation shall be paid by the Company, or, if paid by the
Trustee, shall be repaid by the Company upon demand;



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



     (h) the Trustee shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or written notice of any event
which is in fact such a default or Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee and such notice references the Securities and this Indenture;



     (i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of it capacities hereunder and each agent, custodian and other
Person employed to act hereunder;



     (j) the Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’



27









 







Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;



     (k) the Trustee shall not be responsible or liable for special, indirect or consequential loss
or damage of any kind whatsoever (including, but not limited to, loss or profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the
form of action;



     (l) the Trustee shall not be required to give any note, bond or surety in respect of the
execution of the trusts and powers under this Indenture; and



     (m) the Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly by
circumstances beyond its reasonable control, including, without limitation, acts of God,
earthquakes, fire, flood, terrorism, wars and other military disturbances, sabotage, epidemics,
riots, interruptions, loss or malfunction of utilities or communication services and acts of civil
or military authorities and governmental action.



     Section 7.03. No Responsibility for Recitals, etc. The recitals contained herein and in the Securities shall be taken as the statements of the
Company (except in the Trustee’s certificates of authentication), and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or the Securities, provided that the Trustee shall not be
relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee
shall not be accountable for the use or application by the Company or any of the Securities or of
the proceeds thereof.



     Section 7.04. Ownership of Securities. The Trustee and any agent of the Company or of the Trustee, 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 or such agent.



     Section 7.05. Moneys to be Held in Trust. Subject to the provisions of Sections 12.05 and 12.06 hereof, all moneys received by the
Trustee or any paying agent 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. Neither the Trustee nor any paying agent shall be under any liability
for interest on any moneys received by it hereunder except such as it may agree with the Company to
pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written order of the Company,
signed by any one of its Authorized Officers.



     Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) and, except as otherwise expressly
provided, the Company 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. If any property
other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to
the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be entitled to make advances
for the purpose of preserving such property or of discharging tax liens or other prior liens or
encumbrances thereon. The Company also covenants to indemnify the Trustee for, and to hold it
harmless against, any loss, liability



28









 







or expense incurred without negligence or bad faith on the
part of the Trustee, arising out of or in connection with the acceptance or administration of this
trust and its duties hereunder, including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Company under this Section 7.06 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. 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. Officers’ Certificate as Evidence. Subject to the provisions of Sections 7.01 and 7.02, 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, omitting or suffering any action to be taken 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, omitted or suffered by it under the provisions of this Indenture upon the
faith thereof.



     Section 7.08. Indentures Not Creating Potential Conflicting Interests For The Trustee. The
following indenture is hereby specifically described for the purposes of Section 310(b)(1) of the
Trust Indenture Act of 1939: this Indenture with respect to the Securities of any other series.



     Section 7.09. Eligibility of Trustee. The Trustee hereunder shall at all times be a corporation organized and doing business
under the laws of the United States or any state, which (a) is authorized under such laws to
exercise corporate trust powers, (b) is subject to supervision or examination by U.S. Federal or
State authority and (c) shall have at all times a combined capital and surplus of not less than
fifty million dollars. 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 7.09, the combined capital and surplus of such corporation at any
time shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.



     The provisions of this Section 7.09 are in furtherance of and subject to Section 310(a) of the
Trust Indenture Act of 1939.



     Section 7.10. Resignation or Removal of Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to any one or more or all series of Securities by giving written notice of
resignation to the Company and by mailing notice thereof to the holders of the applicable series of
Securities at their addresses as they shall appear on the registry books of the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument, in duplicate, executed by
order of the Board of Directors of the Company, 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 with respect to any series and have accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 6.09, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a



29









 







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 of the following shall occur—



          (1) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act of 1939 with respect to any series of Securities after written request therefor by
the Company or by any Securityholder who has been a bona fide holder of a Security or Securities of
such series for at least six months, or




          (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09
and Section 310(a) of the Trust Indenture Act of 1939 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by any such Securityholder,
or




          (3) the Trustee shall become incapable of acting with respect to any series of Securities, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation—



then, in any such case, the Company may remove the Trustee with respect to such series and appoint
a successor trustee with respect to such series by written instrument, in duplicate, executed by
order of the Board of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
holder of a Security or Securities of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee with respect to such series.




     (c) The holders of a majority in aggregate principal amount of the Securities of one or more
series (each series voting as a class) or all series at the time Outstanding may at any time remove
the Trustee with respect to the applicable series or all series, as the case may be, and appoint
with respect to the applicable series or all series, as the case may be, a successor trustee by
written notice of such action to the Company, the Trustee and the successor trustee.



     (d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 7.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.



     (e) No predecessor Trustee shall be liable for the acts or omissions of any successor Trustee.



     Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to any
or all applicable series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if originally named
as trustee herein; but, nevertheless, on the written request of the Company or of the successor
trustee, the trustee ceasing to act shall, upon payment (or due provision therefor) of any amounts
then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument



30









 







transferring to such successor trustee all the rights and powers with respect to such series of the
trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute
any and all instruments in writing in order more fully and certainly to vest in and confirm to such
successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 7.06.



     In case of the appointment hereunder of a successor trustee with respect to the Securities of
one or more (but not all) series, the Company, the predecessor trustee and each successor trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect
to the Securities of any series as to which the predecessor trustee is not retiring shall continue
to be vested in the predecessor trustee and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that each such trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such trustee.



     No successor trustee with respect to a series of Securities shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such successor trustee shall,
with respect to such series, be qualified under Section 310(b) of the Trust Indenture Act of 1939
and eligible under the provisions of Section 7.09.



     Upon acceptance of appointment by a successor trustee with respect to any series as provided
in this Section 7.11, the Company shall mail notice of the succession of such trustee hereunder to
the holders of Securities of such series at their addresses as they shall appear on the registry
books of the Company. If the Company fails to mail such notice within ten days after the
acceptance of appointment by the successor trustee, the successor trustee shall cause such notice
to be mailed at the expense of the Company.



     Section 7.12. Succession by Merger, etc. Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor to the Trustee hereunder, provided such
Person shall be qualified under Section 310(b) of the Trust Indenture Act of 1939 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 at the time such successor to the Trustee shall succeed to the trust created by this
Indenture with respect to one or more series of Securities any of such Securities shall have been
authenticated but not delivered, any such successor to the Trustee by merger, conversion or
consolidation may adopt the certificate of authentication of any predecessor trustee and deliver
such Security so authenticated; and in case at that time any of such Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities either in the name of
such successor to the Trustee or, if such successor to the Trustee is a successor by merger,
conversion or consolidation, the name of any predecessor hereunder; and in all such cases such
certificate shall have the full force which it is anywhere in such Securities or in this Indenture
provided that the certificate of the Trustee shall have.



31









 





     Section 7.13. Other Matters Concerning the Trustee. The principal corporate trust office of the Trustee at the date of this Indenture is
located at 299 S. Main Street, 12th Floor, Salt Lake City, UT 84111; Attn: Corporate
Trust Lease Group.



     Section 7.14. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act
on behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer, partial conversion or partial redemption or pursuant to Section 2.07, and
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination by U.S. Federal or
State authority. If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.



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



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all holders of
Securities as their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.



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



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


“Dated:




32









 








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



	 	 	 	 	 
	 	WELLS FARGO BANK NORTHWEST,

 NATIONAL ASSOCIATION, as
Trustee

 	 
	 	By:  	 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Signatory” 	 
	 	 	 	 
	 



ARTICLE 8

CONCERNING THE SECURITYHOLDERS





     Section 8.01. Action of Securityholders. Whenever in this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Securities of any or all series may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action) the fact that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any number of instruments
of similar tenor executed by such Securityholders in person or by agent or proxy appointed in
writing, (b) by the record of such holders of Securities voting in favor thereof at any meeting of
such Securityholders duly called and held in accordance with the provisions of Article Nine or (c)
by a combination of such instrument or instruments and any such record of such a meeting of such
Securityholders.



     Section 8.02. Proof of Execution by Securityholders. Subject to the provisions of Sections 7.01, 7.02 and 9.06, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as
shall be reasonably satisfactory to the Trustee. The ownership of Securities shall be proved by
the registry books of the Company.



     The record of any Securityholders’ meeting shall be proved in the manner provided in Section
9.07.



     The Company may set a record date for purposes of determining the identity of holders of
Securities of any series entitled to vote or consent to or revoke any action referred to in Section
8.01, which record date may be set at any time or from time to time by notice to the Trustee, for
any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Securities of any series, only holders
of Securities of such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.



     Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee and any agent of the Company or of the Trustee may deem the person
in whose name any Security shall be registered upon the books of the Company to be, and may treat
him as, the owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.04)
interest, if any, on such Security and for all other purposes; and neither the Company nor



33









 







the
Trustee nor any agent of the Company or of the Trustee shall be affected by any notice to the
contrary. All such payments so made to any holder for the time being, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.



     No Beneficial Owner of a beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Security for all purposes whatsoever. None of the Company, the
Trustee or any agent of the Company or the Trustee will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial ownership interests
of a Global Security or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.



     Section 8.04. Company-Owned Securities Disregarded. In determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any demand, request, notice, direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on the Securities with
respect to which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such determination; provided,
that for the purposes of determining whether the Trustee shall be protected in relying on any such
demand, request, notice, direction, consent or waiver only Securities which the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote 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 Company or any such other obligor. In the 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. Revocation of Consents; Future Holders Bound. 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 percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action, any holder of a Security which 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 at its principal office 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
of such Security, irrespective of whether or not any notation in regard thereto is made upon such
Security or any Security issued in exchange or substitution therefor.



ARTICLE 9

SECURITYHOLDERS’ MEETINGS




     Section 9.01. Purposes of Meetings. A meeting of holders of Securities of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article Nine for any of the following purposes:



     (1) to give any notice to the Company or to the Trustee, to give any directions to the
Trustee, to consent to the waiving of any default hereunder and its consequences or to take any
other action authorized to be taken by Securityholders pursuant to any of the provisions of Article
Six;



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     (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article Seven;



     (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 10.02; or



     (4) to take any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of the Securities of any or all series, as the case may be,
under any other provision of this Indenture or under applicable law.



     Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of holders of Securities of any or all series to
take any action specified in Section 9.01, to be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the
holders of Securities of any or all series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be mailed to holders of
Securities of each series affected at their addresses as they shall appear on the registry books of
the Company. Such notice shall be mailed not less than 10 nor more than 90 days prior to the date
fixed for the meeting.



     Section 9.03. Call of Meetings by Company or Securityholders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least ten percent in aggregate principal amount of the Securities then Outstanding of
any series that may be affected by the action proposed to be taken at the meeting shall have
requested the Trustee to call a meeting of the holders of Securities of all series that may be so
affected, by written request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders, in the amount specified above,
may determine the time and the place in said Borough of Manhattan for such meeting and may call
such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided
in Section 9.02.



     Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of Securityholders a person shall (a) be a holder of
one or more Securities with respect to which such meeting is being held or (b) be a person
appointed by an instrument in writing as proxy by a holder of one or more such Securities. The
only persons who shall be entitled to be present or to speak at any meeting of Securityholders
shall be the persons entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.



     Section 9.05. Quorum; Adjourned Meetings. The Persons entitled to vote a majority in aggregate principal amount of the Securities of
the relevant series at the time Outstanding shall constitute a quorum for the transaction of all
business specified in Section 9.01. No business shall be transacted in the absence of a quorum
(determined as provided in this Section 9.05). In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the request of the
holders of Securities (as provided in Section 9.03), be dissolved. In any other case the meeting
shall be adjourned for a period of not less than ten days as determined by the chairman of the
meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting shall be
further adjourned for a period of not less than ten days as determined by the chairman of the
meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section
9.02, except that such notice must be mailed not less than five days prior to the date on which the
meeting is scheduled to be reconvened.



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     Subject to the foregoing, at the second reconvening of any meeting adjourned for lack of a
quorum, the Persons entitled to vote 25% in aggregate principal amount of the Securities of the
relevant series then Outstanding shall constitute a quorum for the taking of any action set forth
in the notice of the original meeting. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage of the aggregate principal amount of the Securities of the relevant
series then Outstanding which shall constitute a quorum.



     At a meeting or any adjourned meeting duly convened and at which a quorum is present as
aforesaid, any resolution and all matters (except as limited by the proviso in Section 10.02) shall
be effectively passed and decided if passed or decided by the Persons entitled to vote the lesser
of (a) a majority in aggregate principal amount of the Securities of the relevant series then
Outstanding and (b) 75% in aggregate principal amount of the Securities represented and voting at
the meeting.



     Any holder of a Security who has executed in person or by proxy and delivered to the Trustee
an instrument in writing complying with the provisions of Article Eight shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted; provided that such
holder of a Security shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.



     Section 9.06. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to
proof of the holder of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Securityholders as provided in
Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.



     Subject to the provisions of Section 8.04, at any meeting each holder of Securities with
respect to which such meeting is being held or proxy shall be entitled to vote the principal amount
(in the case of Original Issue Discount Securities, such principal amount to be determined as
provided in the definition of “Security or Securities; Outstanding” in Section 1.01) of such
Securities held or represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any such Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of such Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other such Securityholders. Any meeting of
holders of Securities with respect to which a meeting was duly called pursuant to the provisions of
Sections 9.02 or 9.03 may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without further notice.



     Section 9.07. Voting. The vote upon any resolution submitted to any meeting of holders of Securities with respect
to which such meeting is being held shall be by written ballots on which shall be subscribed the
signatures of such holders of Securities or of their representatives by proxy and the principal
amount (in the case of Original Issue Discount Securities, such principal amount to be determined
as provided in the definition of “Security or Securities; Outstanding” in Section 1.01) and number
or numbers of such Securities held or represented by them. The permanent chairman of the



36









 







meeting
shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as provided in Section
9.02. The record shall show the principal amount of the Securities (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the definition of
“Security or Securities; Outstanding” in Section 1.01) voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     Section 9.08. No Delay of Rights by Meeting. Nothing in this Article Nine contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Securityholders of any or all series or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the Securityholders of any or all
such series under any of the provisions of this Indenture or of the Securities.



ARTICLE 10

SUPPLEMENTAL INDENTURES




     Section 10.01. Supplemental Indentures without Consent of Securityholders. The Company, when authorized by resolution of the Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or indentures supplemental hereto for one
or more of the following purposes:



     (a) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company pursuant to Article Eleven hereof;



     (b) to add to the covenants of the Company such further covenants, restrictions, conditions or
provisions for the protection 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 for the benefit of such series) as the Board of Directors of
the Company and the Trustee shall consider to be for the protection of the holders of such
Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such additional covenant, restriction,
condition or provision, such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;



     (c) to add any additional Events of Default (and, if such Events of Default are to be
applicable to less than all series of Securities, stating that such Events of Default are
applicable only to specified series);



37









 





     (d) to provide for the issuance under this Indenture of Securities in coupon form (including
Securities registrable as to principal only) and to provide for exchangeability of such Securities
with the Securities of the same series issued hereunder in fully registered form and to make all
appropriate changes for such purpose;



     (e) to establish the forms or terms of Securities of any series or of the Coupons appertaining
to such Securities as permitted by Sections 2.01 and 2.02;



     (f) to provide for uncertificated debt securities in addition to or in place of certificated
debt securities;



     (g) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture which shall not materially adversely affect the interests of
the holders of any Securities; provided, however, that any amendment made solely to conform the
provisions of this Indenture to the description of the Securities contained in the prospectus or
other offering document pursuant to which the Securities were sold will be deemed not to adversely
affect the interests of the holders of the Securities;



     (h) to modify or amend this Indenture to permit the qualification of this Indenture or any
indentures supplemental hereto under the Trust Indenture Act of 1939, as amended;



     (i) to add to or change any provision of this Indenture to provide that bearer Securities may
be registrable as to principal, to change or eliminate any restrictions on the payment of principal
or premium with respect to registered Securities or of principal, premium or interest with respect
to bearer Securities, or to permit registered Securities to be exchanged for bearer Securities;
provided, however, that any such addition, change or elimination may not materially adversely
affect the interests of any holders of Securities at the time Outstanding nor permit or facilitate
the issuance of Securities of any series in uncertificated form;



     (j) to add guarantees with respect to the Securities of any series or to secure the Securities
of any series;



     (k) to evidence and provide for the acceptance of appointment hereunder by a successor or
separate trustee with respect to the Securities of one or more series or to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to the requirements of
Section 7.11 or pursuant to Section 2.02(17); and



     (l) to add to, change or eliminate any of the provisions of this Indenture; provided, however,
that any such addition, change or elimination may be effected only when no Outstanding Security of
any series created prior to the execution of such supplemental indenture is entitled to the benefit
of such provision.



     The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



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     Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed
by the Company 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 10.02.



     Section 10.02. Supplemental Indentures with Consent of Securityholders. With the written consent (evidenced as provided in Sections 8.01 and 8.02) of the holders
of a majority in the aggregate principal amount of the Securities of each series (each series
voting as a class) affected by such supplemental indenture at the time Outstanding, the Company and
the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying
in any manner the rights of the holders of the Securities or each such series; provided, however,
that no such supplemental indenture shall (i) change the stated maturity of principal of, or any
installment of principal of or interest on, any Security, (ii) reduce the rate of or extend the
time of payment of interest, if any, on any Security or alter the manner of calculation of
interest payable on any Security (except as part of any remarketing of the Securities of any
series, or any interest rate reset with respect thereto in each case in accordance with the terms
thereof), (iii) reduce the principal amount or premium, if any, on any Security, (iv) make the
principal amount or premium, if any, or interest, if any, on any Security payable in any coin or
currency other than that provided in any Security, (v) reduce the percentage in principal amount of
Securities of any series the holders of which are required to consent to any such supplemental
indenture or any waiver of any past default or Event of Default pursuant to Section 6.07(b), (vi)
change any place of payment where the Securities of any series or interest thereon is payable,
(vii) impair the right of any holder of a Security to institute suit for any such payment, reduce
the amount of the principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 6.01, adversely affect the right
of repayment, if any, at the option of the holder or extend the time or reduce the amount of any
payment to any sinking fund or analogous obligation relating to any Security, or (viii) modify any
provision of Section 6.07(b) or 10.02 (except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without the consent of the
holder of each Security so affected), without, in the case of each of the foregoing clauses (i)
through (viii), the consent of the holder of each Security so affected. A supplemental indenture
which changes or eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the holders of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture of the holders of
Securities of any other series.



     Upon the request of the Company, accompanied by a copy of the resolutions of the Board of
Directors authorizing the execution and delivery of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee
shall join with the Company 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.



     It shall not be necessary for the consent of the Securityholders under this Section 10.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.



     Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Ten shall
comply with the Trust Indenture Act of 1939, as then in effect. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be
deemed to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities



39









 







under this Indenture of the Trustee, the Company and the
holders of the Securities 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 10.04. Notation on Securities. Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Ten may bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.



     Section 10.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article Ten.



ARTICLE 11

CONSOLIDATION, MERGER, SALE OR CONVEYANCE




     Section 11.01. Company May Consolidate, Merge Or Sell Assets on Certain Terms. Nothing contained in this Indenture or in any of the Securities shall be deemed to prevent
the consolidation or merger of the Company with or into any other corporation, or the merger into
the Company of any other corporation, or the sale by the Company of its assets as, or substantially
as, an entirety, or otherwise; provided, however, that (a) in case of any such consolidation or
merger the corporation resulting from such consolidation or any corporation other than the Company
into which such merger shall be made shall succeed to and be substituted for the Company with the
same effect as if it has been named herein as a party hereto and shall become liable and be bound
for, and shall expressly assume, by a supplemental indenture hereto, executed and delivered to the
Trustee, the due and punctual payment of the principal of, premium, if any, and interest, if any,
on all the Securities of each series and the Coupons, if any, appertaining thereto and the
performance and observance of each and every covenant and condition of this Indenture on the part
of the Company to be performed or observed, (b) as a condition of any such sale of the assets of
the Company as, or substantially as, an entirety, the corporation to which such assets shall be
sold shall (i) expressly assume the due and punctual payment of the principal of, premium, if any,
and interest, if any, on all the Securities of each series and the Coupons, if any, appertaining
thereto and the performance and observance of all the covenants and conditions of this Indenture on
the part of the Company to be performed or observed and (ii) simultaneously with the delivery to it
of the conveyances or instruments of transfer of such assets, execute and deliver to the Trustee a
supplemental indenture thereto, in form satisfactory to the Trustee, whereby such purchasing
corporation shall so assume the due and punctual payment of the principal of, premium, if any, and
interest, if any, on all the Securities of each series and the Coupons, if any, appertaining
thereto and the performance and observance of each and every covenant and condition of this
Indenture on the part of the Company to be performed or observed, to the same extent that the
Issuer is bound and liable, and (c) the Company is not, or such successor corporation is not,
immediately after such merger, consolidation or sale, in default in the performance of any
obligations under this Indenture.



     Section 11.02. Successor Corporation or Limited Liability Company to be Substituted. In case of any such merger, consolidation or sale, and upon any such assumption by the
successor corporation or limited liability company, such successor corporation or limited liability
company shall succeed to and be substituted for the Company, with the same effect as if it had been
named herein as the Company, and the



40









 







Company shall be relieved of any further obligation under this
Indenture and under the Securities. Such successor corporation or limited liability company
thereupon may cause to be signed, and may issue either in its own name or in the name of Babcock &
Brown Air Limited, any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of such successor
corporation or limited liability company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation or limited liability company
thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the execution hereof.



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



     Section 11.03. Documents to be Given Trustee. The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger or
sale, and any such assumption, comply with the provisions of this Article Eleven.



ARTICLE 12

SATISFACTION AND DISCHARGE OF INDENTURE




     Section 12.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Securities
theretofore authenticated (other than any Securities which shall have been destroyed, lost or
stolen or in lieu of or in substitution for which other Securities shall have been authenticated
and delivered, or which shall have been paid, pursuant to the provisions of Section 2.07 or
Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 12.06) and not theretofore cancelled, or (b) all the Securities
not theretofore cancelled or 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 Company shall deposit with the Trustee, in trust, funds sufficient to pay at
maturity or upon redemption all of the Securities (other than any (i) Securities which shall have
been destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid, pursuant to the provisions of
Section 2.07 or (ii) Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section 12.06) not theretofore cancelled or
delivered to the Trustee for cancellation, including principal, premium, if any, and interest, if
any, due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if in either case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i)
rights of registration of transfer and exchange of Securities, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of holders to receive payments of
principal thereof and interest thereon, and remaining rights of the holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of the Trustee hereunder
and (v) the rights of the Securityholders as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and
expense of the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company, however, hereby



41









 







agreeing to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities.



     Section 12.02. Legal Defeasance. On the 91st day following the deposit referred to in clause (a), the Company will be deemed
to have paid and will be discharged from its obligations in respect of the Securities of the series
with respect to which such deposit shall have been made and the Indenture with respect to such
Securities, other than (i) the rights of the Securityholders of Outstanding Securities of such
series to receive, solely from the trust fund described in clause (a), payments in respect of the
principal of and interest on such securities when such payments are due and (ii) its obligations in
Article Two and Sections 4.02, 7.06, 7.10, 12.06; and 12.07 provided the following conditions have
been satisfied:



     (a) The Company has irrevocably deposited in trust with the Trustee, as trust funds solely for
the benefit of the Securityholders of such series, money sufficient, or U.S. Government
Obligations, the principal of and interest on which shall be sufficient, or a combination thereof
sufficient, in the opinion of the Board of Directors of the Company evidenced by a resolution set
forth in an Officers’ Certificate delivered to the Trustee, without consideration of any
reinvestment, to pay principal of, premium, if any, and interest, if any, on the Securities of such
series to maturity or redemption, as the case may be, provided that any redemption before maturity
has been irrevocably provided for under arrangements satisfactory to the Trustee.



     (b) The deposit will not result in a breach or violation of, or constitute a default under,
the Indenture or any other agreement or instrument to which the Company is a party or by which it
is bound.



     (c) The Company has delivered to the Trustee either (x) a ruling received from the Internal
Revenue Service to the effect that the holders of the Securities of such series will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the defeasance and will be
subject to U.S. federal income tax on the same amount and in the same manner and at the same times
as would otherwise have been the case or (y) an Opinion of Counsel, based on a change in law after
the date of the Indenture, to the same effect as the ruling described in clause (x).



     (d) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the
defeasance have been complied with.



     Prior to the end of the 91-day period, none of the Company’s obligations under the Indenture
with respect to the Securities of such series will be discharged. Thereafter, the Trustee, upon
the request and at the cost and expense of the Company, will acknowledge in writing the discharge
of the Company’s obligations under the Securities of such series and the Indenture with respect to
such series except for the surviving obligations specified above.



     As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which its full faith and credit is
pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933) as custodian
with respect to any U.S. Government Obligation which is specified in clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government Obligation which is so specified and
held, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from



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any amount received
by the custodian in respect of the U.S. Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.



     Section 12.03. Covenant Defeasance. After the 91st day following the deposit referred to in clause (a) with respect to the
Securities of a series, the Company’s obligations set forth in the covenant or covenants for such
series of Securities established as contemplated by Section 2.02(20) will terminate, and clauses
(d) (to the extent relating to such covenant or covenants), (e) and (h) of Section 6.01 will no
longer constitute Events of Default with respect to the Securities of a series, provided the
following conditions have been satisfied:



     (a) the Company has complied with clauses (a), (b) and (d) of Section 12.02; and



     (b) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the defeasance and will be subject to U.S. federal income tax on
the same amount and in the same manner and at the same times as would otherwise have been the case.



     Except as specifically stated above, none of the Company’s obligations under the Indenture
will be discharged.



     Section 12.04. Deposited Moneys to be Held in Trust by Trustee; Miscellaneous Provisions. All moneys and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to the provisions of Section 12.02 or 12.03 shall be held in trust and applied
by it to the payment, either directly or through any paying agent (including the Company if acting
as its own paying agent), to the holders of the particular Securities for payment or redemption of
which such moneys or U.S. Government Obligations have been deposited with the Trustee, of all sums
due and to become due thereon for principal, premium, if any, and interest, if any.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 12.01 or 12.03
or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the holders of the Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon request of the Company any money or U.S. Government Obligations
held by it as provided in Section 12.02 or 12.03 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect the legal defeasance or covenant defeasance, as the case
may be, with respect to such Securities.



     Section 12.05. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this Indenture all moneys then held by any paying
agent of the Securities (other than the Trustee) shall, upon demand of the Company, be repaid to
the Company or paid to the Trustee, and thereupon such paying agent shall be released from all
further liability with respect to such moneys.



     Section 12.06. Return of Unclaimed Moneys. Any moneys deposited with or paid to the Trustee for payment of the principal of, premium,
if any, or interest, if any, on Securities of any series and not applied but remaining unclaimed by
the holders of Securities of that series for two years after the date upon which the principal of,
premium, if any, or
interest, if any, on such Securities, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee on written demand; and the holder of any such
Securities shall thereafter look only to the Company for any payment which



43









 







such holder may be
entitled to collect and all liability of the Trustee with respect to such money shall thereupon
cease.



     Section 12.07. Reinstatement. If and for so long as the Trustee is unable to apply any money or U.S. Government
Obligations held in trust pursuant to Section 12.01, 12.02 or 12.03 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under the
Indenture and the Securities will be reinstated as though no such deposit in trust had been made.
If the Company makes any payment of principal of or interest on any Securities because of the
reinstatement of its obligations, it will be subrogated to the rights of the Securityholders of
such Securities to receive such payment from the money or U.S. Government Obligations held in
trust.



ARTICLE 13

IMMUNITY OF INCORPORATORS,

STOCKHOLDERS, OFFICERS AND DIRECTORS




     Section 13.01. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of, premium, if any, or interest, if any, on
any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture, or in any Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation, either directly or
through the Company or any 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 all such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the Securities.



ARTICLE 14

MISCELLANEOUS PROVISIONS




     Section 14.01. Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by the
Company shall bind its successors and assigns whether so expressed or not.



     Section 14.02. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.



     Section 14.03. Addresses for Notices, Notice to Holders, Waiver. Any notice or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Securities on the Company may be given or
served by being deposited postage prepaid by first class mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee) to Babcock & Brown Air Limited,
West Pier, Dun Laoghaire, County Dublin, Ireland, Attn: CEO, with a copy to Weil, Gotshal & Manges,
LLP, 767 Fifth Avenue, New York, New York 10153, Attn: Boris Dolgonos. Any notice, direction,
request or demand by 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 principal office
of the Trustee, addressed to the attention of its corporate trust office as specified in Section
7.13 hereof.



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     Where this Indenture provides for notice of holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each holder affected by such event, at its address as it appears in
the Security register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular holder shall affect the sufficiency of such notice with respect to other holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.



     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     Section 14.04. New York Contract. This Indenture and each Security shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance with the laws of said
State.



     Section 14.05. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for 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 opinion 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 14.06. Legal Holidays. In any case where the date of maturity of interest, if any, on or principal of, or premium,
if any, on the Securities or the date fixed for redemption or repayment of any Security will be in
The City of New York, New York, a Saturday, a Sunday, a legal holiday or a day on which banking
institutions are authorized or required by law or executive order to close or remain closed, then
payment of such interest, if any, on or principal of or premium, if any, on the Securities need not
be made on such date but may be made on the next succeeding day not in such city, a Saturday, a
Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or
executive order to close or remain closed, with the same force and effect as if made on the date of
maturity or a date fixed for redemption or repayment, and no interest shall accrue for the period
from and after such date.



     Section 14.07. Securities in a Specified Currency other than Dollars. Unless otherwise specified as contemplated by Section 2.02 with respect to a particular
series of Securities, whenever for purposes of this Indenture any action may be taken by the
holders of a specified percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such time, there are
Outstanding any Securities of any series which are denominated



45









 







in a Specified Currency other than
Dollars then the principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount of such Specified Currency at the Market Exchange Rate. For purposes of
this Section 14.07, Market Exchange Rate shall mean the noon Dollar buying rate in New York City
for cable transfers of the Specified Currency published by the Federal Reserve Bank of New York.
If such Market Exchange Rate is not available for any reason with respect to such Specified
Currency, the Trustee shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or such other quotations as the Trustee shall
deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a series denominated in a Specified Currency other
than Dollars in connection with any action taken by holders of Securities pursuant to the terms of
this Indenture, including, without limitation, any determination contemplated in Section 6.01(d) or
(e).



     All decisions and determination of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Securityholders.



     Section 14.08. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or with another provision (an “incorporated provision”) included in
this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939,
such imposed duties or incorporated provision shall control.



     Section 14.09. Table of Contents, Headings, etc. The table of contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.



     Section 14.10. Execution in 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 14.11. Separability; Benefits. In case any one or more of the provisions contained in this Indenture or in the Securities
shall for any reason be held to be invalid, illegal or unenforceable, in any respect, then, to the
extent permitted by law, such invalidity, illegality or unenforceability of the remaining
provisions shall not in any way be affected or impaired thereby.



     Nothing in this Indenture or in the Securities, expressed or implied, shall give to any
person, other than the parties hereto and their successors hereunder, and the holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.



46









 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
November 10, 2009.



	 	 	 	 	 
	 	BABCOCK & BROWN AIR LIMITED

 	 
	 	By:  	/s/ Colm Barrington
 	 
	 	 	Name:  	Colm Barrington 	 
	 	 	Title:  	CEO 	 
	 
	 	WELLS FARGO BANK NORTHWEST, NATIONAL 

ASSOCIATION, as
Trustee

 	 
	 	By:  	/s/ Scott Rosevear
 	 
	 	 	Name:  	Scott Rosevear 	 
	 	 	Title:  	Vice President