allegiantindentures-3tru






Exhibit 4.3          Allegiant Travel Company          INDENTURE     Dated as of           Wells Fargo Bank, National Association     Trustee                                  DEBT SECURITIES        





 






      TABLE OF CONTENTS        Page         ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE 1       Section 1.1. Definitions 1  Section 1.2. Other Definitions 4  Section 1.3. Incorporation by Reference of Trust Indenture Act 5  Section 1.4. Rules of Construction 5         ARTICLE II. THE SECURITIES 6         Section 2.1. Issuable in Series 6  Section 2.2. Establishment of Terms of Series of Securities 6  Section 2.3. Execution and Authentication 8  Section 2.4. Registrar and Paying Agent 9  Section 2.5. Paying Agent to Hold Money in Trust 10  Section 2.6. Securityholder Lists 11  Section 2.7. Transfer and Exchange 11  Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities 11  Section 2.9. Outstanding Securities 12  Section 2.10. Treasury Securities 12  Section 2.11. Temporary Securities 13  Section 2.12. Cancellation 13  Section 2.13. Defaulted Interest 13  Section 2.14. Global Securities 13  Section 2.15. CUSIP Numbers 15         ARTICLE III. REDEMPTION 15         Section 3.1. Notice to Trustee 15  Section 3.2. Selection of Securities to be Redeemed 16  Section 3.3. Notice of Redemption 16  Section 3.4. Effect of Notice of Redemption 17  Section 3.5. Deposit of Redemption Price 17  Section 3.6. Securities Redeemed in Part 17         ARTICLE IV. COVENANTS 17         Section 4.1. Payment of Principal and Interest 17  Section 4.2. SEC Reports 18  Section 4.3. Compliance Certificate 18  Section 4.4. Stay, Extension and Usury Laws 19  Section 4.5. Corporate Existence 19     ARTICLE V. SUCCESSORS 19         Section 5.1. When Company May Merge, Etc. 19  Section 5.2. Successor Corporation Substituted 20         ARTICLE VI. DEFAULTS AND REMEDIES 20         Section 6.1. Events of Default 20  





 






Section 6.2. Acceleration of Maturity; Rescission and Annulment 21  Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee 22  Section 6.4. Trustee May File Proofs of Claim 23  Section 6.5. Trustee May Enforce Claims Without Possession of Securities 24  Section 6.6. Application of Money Collected 24  Section 6.7. Limitation on Suits 24  Section 6.8. Unconditional Right of Holders to Receive Principal and Interest 25  Section 6.9. Restoration of Rights and Remedies 25  Section 6.10. Rights and Remedies Cumulative 25  Section 6.11. Delay or Omission Not Waiver 25  Section 6.12. Control by Holders 26  Section 6.13. Waiver of Past Defaults 26  Section 6.14. Undertaking for Costs 27         ARTICLE VII. TRUSTEE 27         Section 7.1. Duties of Trustee 27  Section 7.2. Rights of Trustee 28  Section 7.3. Individual Rights of Trustee 30  Section 7.4. Trustee’s Disclaimer 30  Section 7.5. Notice of Defaults 30  Section 7.6. Reports by Trustee to Holders 30  Section 7.7. Compensation and Indemnity 30  Section 7.8. Replacement of Trustee 31  Section 7.9. Successor Trustee by Merger, Etc. 32  Section 7.10. Eligibility; Disqualification 32  Section 7.11. Preferential Collection of Claims Against Company 33         ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE 33         Section 8.1. Satisfaction and Discharge of Indenture 33  Section 8.2. Application of Trust Funds; Indemnification 34  Section 8.3. Legal Defeasance of Securities of any Series 34  Section 8.4. Covenant Defeasance 36  Section 8.5. Repayment to Company 37  Section 8.6. Reinstatement 37      ARTICLE IX. AMENDMENTS AND WAIVERS 38         Section 9.1. Without Consent of Holders 38  Section 9.2. With Consent of Holders 39  Section 9.3. Limitations 39  Section 9.4. Compliance with Trust Indenture Act 40  Section 9.5. Revocation and Effect of Consents 40  Section 9.6. Notation on or Exchange of Securities 40  Section 9.7. Trustee Protected 40         ARTICLE X. MISCELLANEOUS 41         Section 10.1. Trust Indenture Act Controls 41  Section 10.2. Notices 41  Section 10.3. Communication by Holders with Other Holders 42  Section 10.4. Certificate and Opinion as to Conditions Precedent 42  Section 10.5. Statements Required in Certificate or Opinion 42  Section 10.6. Rules by Trustee and Agents 43  Section 10.7. Legal Holidays 43  





 






Section 10.8. No Recourse Against Others 43  Section 10.9. Counterparts 43  Section 10.10. Governing Law 44  Section 10.11. No Adverse Interpretation of Other Agreements 44  Section 10.12. Successors 44  Section 10.13. Severability 44  Section 10.14. Table of Contents, Headings, Etc. 44  Section 10.15. Securities in a Foreign Currency 44  Section 10.16. Judgment Currency 45  Section 10.17. Force Majeure 45         ARTICLE XI. SINKING FUNDS 46         Section 11.1. Applicability of Article 46  Section 11.2. Satisfaction of Sinking Fund Payments with Securities 46  Section 11.3. Redemption of Securities for Sinking Fund 47     Allegiant Travel Company     Reconciliation and tie between Trust Indenture Act of 1939 and  Indenture, dated as of October 5, 2018     §  310(a)(1)        7.10  (a)(2)        7.10  (a)(3)        Not Applicable  (a)(4)        Not Applicable  (a)(5)        7.10  (b)        7.10  § 311(a)        7.11  (b)        7.11  (c)        Not Applicable  § 312(a)        2.6  (b)        10.3  (c)        10.3  § 313(a)        7.6  (b)(1)        Not Applicable  (b)(2)        7.6  (c)(1)        7.6  (d)        7.6  § 314(a)        4.2, 4.3  (b)        Not Applicable  (c)(1)        10.4  (c)(2)        10.4  (c)(3)        Not Applicable  (d)        Not Applicable  (e)        10.5  (f)        Not Applicable  § 315(a)        7.1  (b)        7.5  (c)        7.1  (d)        7.1  (e)        6.14  § 316(a)        2.10  (a)(1)(A)        6.12  (a)(1)(B)        6.13  





 






(b)        6.8  §  317(a)(1)        6.3  (a)(2)        6.4  (b)        2.5  § 318(a)        10.1     Note:                  This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.          Indenture dated as of October 5, 2018 between ALLEGIANT TRAVEL COMPANY, a company  incorporated under the laws of Nevada (the “Company”) and WELLS FARGO BANK, NATIONAL  ASSOCIATION, a national banking association, as trustee (the “Trustee”).     Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit  of the Holders of the Securities issued under this Indenture.     ARTICLE I.  DEFINITIONS AND INCORPORATION BY REFERENCE     Section 1.1.                                 Definitions.     “Affiliate” of any specified person means any other person directly or indirectly controlling or  controlled by or under common control with such specified person.  For the purposes of this definition, “control”  (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with  respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies of such person, whether through the ownership of voting securities or by agreement  or otherwise.     “Agent” means any Registrar, Paying Agent, Depositary Custodian, or Notice Agent.     “Applicable Procedures” means, with respect to any payment, tender, redemption, transfer or  exchange of or for beneficial interests in any Global Security, the rules and procedures of the Depositary that apply  to such payment, tender, redemption, transfer or exchange.     “Board of Directors” means the board of directors of the Company or any duly authorized  committee thereof.     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant  Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board  of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.     “Business Day” means, unless otherwise provided by Board Resolution, Officer’s Certificate or  supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal holiday in The  City of New York, New York (or in connection with any payment, the place of payment) on which banking  institutions or the Trustee are authorized or required by law, regulation or executive order to close.      “Capital Stock” means any and all shares, interests, participations, rights or other equivalents  (however designated) of corporate stock.     “Company” means the party named as such above until a successor replaces it and thereafter  means the successor.     “Company Order” means a written order signed in the name of the Company by an Officer.     





 






“Corporate Trust Office” means the office of the Trustee at which at any particular time its  corporate trust business related to this Indenture shall be principally administered, which at the date hereof is set  forth in Section 10.03, and with respect to Agent services such office shall also mean the office or agency of the  Trustee located at, 600 South Fourth Street, Seventh Floor, MAC N9300-070, Minneapolis, MN 55415 Attn:  Conventional Debt and Specialized Services, or such other address as to which the Trustee may give notice to the  Company.     “Default” means any event which is, or after notice or passage of time or both would be, an Event  of Default.     “Depositary” means, with respect to the Securities of any Series issuable or issued in whole or in  part in the form of one or more Global Securities, the person designated as Depositary for such Series by the  Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there  is more than one such person, “Depositary” as used with respect to the Securities of any Series shall mean the  Depositary with respect to the Securities of such Series.     “Depositary Custodian” means the Trustee as custodian with respect to the Global Securities or  any successor entity thereto.     “Discount Security” means any Security that provides for an amount less than the stated principal  amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to  Section 6.2.     “Dollars” and “$” means the currency of The United States of America.     “Exchange Act” means the Securities Exchange Act of 1934, as amended.     “Foreign Currency” means any currency or currency unit issued by a government other than the  government of The United States of America.     “Foreign Government Obligations” means, with respect to Securities of any Series that are  denominated in a Foreign Currency, direct obligations of, or obligations guaranteed by, the government that issued  or caused to be issued such currency for the full and timely payment of which obligations its full faith and credit is  pledged and which are not callable or redeemable at the option of the issuer thereof.     “GAAP” means accounting principles generally accepted in the United States of America set forth  in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified  Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such  other statements by such other entity as have been approved by a significant segment of the accounting profession,  which are in effect as of the date of determination.     “Global Security” or “Global Securities” means a Security or Securities, as the case may be, in the  form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for  such Series or its nominee, and registered in the name of such Depositary or nominee.     “Holder” or “Securityholder” means a person in whose name a Security is registered.     “Indenture” means this Indenture as amended or supplemented from time to time and shall include  the form and terms of particular Series of Securities established as contemplated hereunder.     “interest” with respect to any Discount Security which by its terms bears interest only after  Maturity, means interest payable after Maturity.     “Maturity,” when used with respect to any Security, means the date on which the principal of such  Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of  acceleration, call for redemption or otherwise.  





 






   “Officer” means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer  or any Assistant Treasurer, the Secretary or any Assistant Secretary, and any Vice President of the Company.     “Officer’s Certificate” means a certificate signed by any Officer.     “Opinion of Counsel” means a written opinion of legal counsel, who may be counsel to or an  employee of the Company, or other counsel reasonably acceptable to the Trustee, that meets the requirements of this  Indenture.     “person” means any individual, corporation, partnership, joint venture, association, limited  liability company, joint-stock company, trust, unincorporated organization or government or any agency or political  subdivision thereof.     “principal” of a Security means the principal of the Security plus, when appropriate, the premium,  if any, on the Security.     “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having direct  responsibility for administration of this Indenture and also means, with respect to a particular corporate trust matter,  any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity  with a particular subject.     “SEC” means the Securities and Exchange Commission.     “Securities” means the debentures, notes or other debt instruments of the Company of any  Series authenticated and delivered under this Indenture.     “Series” or “Series of Securities” means each series of debentures, notes or other debt instruments  of the Company created pursuant to Sections 2.1 and 2.2 hereof.     “Stated Maturity” when used with respect to any Security, means the date specified in such  Security as the fixed date on which the principal of such Security or interest is due and payable.     “Subsidiary” of any specified person means any corporation, association or other business entity  of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the  occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned  or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a  combination thereof.     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the  date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such  date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.     “Trustee” means the person named as the “Trustee” in the first paragraph of this instrument until a  successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter  “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than  one such person, “Trustee” as used with respect to the Securities of any Series shall mean only the Trustee with  respect to Securities of that Series.     “U.S. Government Obligations” means securities which are direct obligations of, or guaranteed by,  The United States of America for the full and timely payment of which its full faith and credit is pledged and which  are not callable or redeemable at the option of the issuer thereof.     Section 1.2.                                 Other Definitions.        DEFINED IN  





 






TERM    SECTION         “Bankruptcy Law”    6.1  “Custodian”    6.1  “Event of Default”    6.1  “Judgment Currency”    10.16  “Legal Holiday”    10.7  “mandatory sinking fund payment”    11.1  “New York Banking Day”    10.16  “Notice Agent”    2.4  “optional sinking fund payment”    11.1  “Paying Agent”    2.4  “Registrar”    2.4  “Required Currency”    10.16  “successor person”    5.1     Section 1.3.                                 Incorporation by Reference of Trust Indenture Act.     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by  reference in and made a part of this Indenture.  The following TIA terms used in this Indenture have the following  meanings:     “Commission” means the SEC.     “indenture securities” means the Securities.     “indenture security holder” means a Securityholder.     “indenture to be qualified” means this Indenture.     “indenture trustee” or “institutional trustee” means the Trustee.     “obligor” on the indenture securities means the Company and any successor person or other  obligor upon the Securities.     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to  another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined.     Section 1.4.                                 Rules of Construction.     Unless the context otherwise requires:     (a)                                 a term has the meaning assigned to it;     (b)                                 an accounting term not otherwise defined has the meaning assigned to it in accordance  with GAAP;     (c)                                  “or” is not exclusive;     (d)                                 words in the singular include the plural, and in the plural include the singular; and     (e)                                  provisions apply to successive events and transactions.     ARTICLE II.  THE SECURITIES     





 






Section 2.1.                                 Issuable in Series.     The aggregate principal amount of Securities that may be authenticated and delivered under this  Indenture is unlimited.  The Securities may be issued in one or more Series.  All Securities of a Series shall be  identical except as may be set forth or determined in the manner provided in a Board Resolution, a supplemental  indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under a  Board Resolution.  In the case of Securities of a Series to be issued from time to time, the Board Resolution,  Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority  granted under a Board Resolution may provide for the method by which specified terms (such as interest rate,  maturity date, record date or date from which interest shall accrue) are to be determined.  Securities may differ  between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to  the benefits of the Indenture.     Section 2.2.                                 Establishment of Terms of Series of Securities.     At or prior to the issuance of any Securities within a Series, the following shall be established (as  to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the  Series generally in the case of Subsections 2.2.2 through 2.2.22) by or pursuant to a Board Resolution, and set forth  or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:     2.2.1.                  the title (which shall distinguish the Securities of that particular Series from the Securities  of any other Series) and ranking (including the terms of any subordination provisions) of the Series;     2.2.2.                  the price or prices (expressed as a percentage of the principal amount thereof) at which  the Securities of the Series will be issued;     2.2.3.                  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 Section 2.7, 2.8,  2.11, 3.6 or 9.6);     2.2.4.                  the date or dates on which the principal of the Securities of the Series is payable;     2.2.5.                  the rate or rates (which may be fixed or variable) per annum or, if applicable, the method  used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock  exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates  from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and  be payable and any regular record date for the interest payable on any interest payment date;     2.2.6.                  the place or places where the principal of and interest, if any, on the Securities of the  Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or  exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and  this Indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means;      2.2.7.                  if applicable, the period or periods within which, the price or prices at which and the  terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of  the Company;     2.2.8.                  the obligation, if any, of the Company to redeem or purchase the Securities of the  Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or  periods within which, the price or prices at which and the terms and conditions upon which Securities of the  Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;     2.2.9.                  the dates, if any, on which and the price or prices at which the Securities of the  Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and  provisions of such repurchase obligations;  





 






   2.2.10.           if other than denominations of $1,000 and any integral multiple thereof, the  denominations in which the Securities of the Series shall be issuable;     2.2.11.           the forms of the Securities of the Series and whether the Securities will be issuable as  Global Securities;     2.2.12.           if other than the principal amount thereof, the portion of the principal amount of the  Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to  Section 6.2;     2.2.13.           the currency of denomination of the Securities of the Series, which may be Dollars or any  Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any,  responsible for overseeing such composite currency;     2.2.14.           the designation of the currency, currencies or currency units in which payment of the  principal of and interest, if any, on the Securities of the Series will be made;     2.2.15.           if payments of principal of or interest, if any, on the Securities of the Series are to be  made in one or more currencies or currency units other than that or those in which such Securities are denominated,  the manner in which the exchange rate with respect to such payments will be determined;     2.2.16.           the manner in which the amounts of payment of principal of or interest, if any, on the  Securities of the Series will be determined, if such amounts may be determined by reference to an index based on a  currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;     2.2.17.           the provisions, if any, relating to any security provided for the Securities of the Series;     2.2.18.           any addition to, deletion of or change in the Events of Default which applies to any  Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to  declare the principal amount thereof due and payable pursuant to Section 6.2;     2.2.19.           any addition to, deletion of or change in the covenants set forth in Articles IV or V which  applies to Securities of the Series;     2.2.20.           any Depositaries, interest rate calculation agents, exchange rate calculation agents or  other agents with respect to Securities of such Series if other than those appointed herein;     2.2.21.           the provisions, if any, relating to conversion or exchange of any Securities of such Series,  including if applicable, the conversion or exchange price, the conversion or exchange period, provisions as to  whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the  Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting  conversion or exchange if such Series of Securities are redeemed;     2.2.22.           if the Securities of the series are to be convertible into or exchangeable for cash and/or  any securities or other property of any person (including the Company), the terms and conditions upon which such  Securities will be so convertible or exchangeable;     2.2.23.           any other terms of the Series (which may supplement, modify or delete any provision of  this Indenture insofar as it applies to such Series), including any terms that may be required under applicable law or  regulations or advisable in connection with the marketing of Securities of that Series;     2.2.24.           whether any of the Company’s direct or indirect Subsidiaries or any other person will  guarantee the Securities of that Series, including the terms of subordination, if any, of such guarantees; and     





 






2.2.25.           whether the Securities of the series will be secured by any collateral and, if so, the terms  and conditions upon which such Securities shall be secured and, if applicable, upon which such liens may be  subordinated to other liens securing other indebtedness of the Company or any guarantor.     All Securities of any one Series need not be issued at the same time and may be issued from time  to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution,  supplemental indenture hereto or Officer’s Certificate referred to above. No Board Resolution or Officers’  Certificate may affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise with respect  to any series of Notes except as it may agree in writing.     Section 2.3.                                 Execution and Authentication.     An Officer shall sign the Securities for the Company by manual or facsimile signature.     If an Officer whose signature is on a Security no longer holds that office at the time the Security is  authenticated, the Security shall nevertheless be valid.     A Security shall not be valid until authenticated by the manual signature of the Trustee or an  authenticating agent.  The signature shall be conclusive evidence that the Security has been authenticated under this  Indenture.      The Trustee shall at any time, and from time to time, authenticate Securities for original issue in  the principal amount provided in the Board Resolution, supplemental indenture hereto or Officer’s Certificate, upon  receipt by the Trustee of a Company Order.  Each Security shall be dated the date of its authentication.     The aggregate principal amount of Securities of any Series outstanding at any time may not  exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution,  supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided in  Section 2.8.     Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to  Section 7.2) shall be fully protected in relying on:  (a) the Board Resolution, supplemental indenture hereto or  Officer’s Certificate establishing the form of the Securities of that Series or of Securities within that Series and the  terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate complying with  Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4 and stating the Indenture and such  Series of Securities are valid and legally binding obligations of the Company, subject to customary exceptions.     The Trustee shall have the right to decline to authenticate and deliver any Securities of such  Series:  (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; or (b) if  the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors  and/or vice-presidents or a committee of Responsible Officers shall determine that such action would expose the  Trustee to personal liability to Holders of any then outstanding Series of Securities.     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate  Securities.  An authenticating agent may authenticate Securities whenever the Trustee may do so.  Each reference in  this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has  the same rights as an Agent to deal with the Company or an Affiliate of the Company.     Section 2.4.                                 Registrar and Paying Agent.     The Company shall maintain, with respect to each Series of Securities, at the place or places  specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such  Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may be  surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands to or upon the  Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice Agent”).  The  Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange.  The  





 






Company will give prompt written notice to the Trustee of the name and address, and any change in the name or  address, of each Registrar, Paying Agent or Notice Agent.  If at any time the Company shall fail to maintain any  such required Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address  thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of  the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders,  notices and demands.     The Company may also from time to time designate one or more co-registrars, additional paying  agents or additional notice agents and may from time to time rescind such designations; provided, however, that no  such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar,  Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for  such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission  and of any change in the name or address of any such co-registrar, additional paying agent or additional notice  agent.  The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying  agent; and the term “Notice Agent” includes any additional notice agent.  The Company or any of its Affiliates may  serve as Registrar or Paying Agent.     The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent  for each Series unless another Registrar, Paying Agent or Notice Agent, as the case may be, is appointed prior to the  time Securities of that Series are first issued; provided that no office of the Trustee shall be a place for service of  legal process on the Company.     The Company shall be responsible for making calculations called for under the Securities,  including but not limited to determination of redemption price, premium, if any, and any other amounts payable on  the Securities.  The Company will make the calculations in good faith and, absent manifest error, its calculations  will be final and binding on the Holders.  The Company will provide a schedule of its calculations to the Trustee  when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Company’s  calculations without independent verification. The Trustee shall forward the Company’s calculations to any Holder  of the Securities upon the written request of such Holder.     Section 2.5.                                 Paying Agent to Hold Money in Trust.     The Company shall require each Paying Agent other than the Trustee to agree in writing that the  Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all  money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will  notify the Trustee in writing of any default by the Company in making any such payment.  While any such default  continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Company at any  time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the  Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the  money.  If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a  separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying  Agent.  Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall  serve as Paying Agent for the Securities.     Section 2.6.                                 Securityholder Lists.     The Trustee shall preserve in as current a form as is reasonably practicable the most recent list  available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply  with TIA § 312(a).  If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days  before each interest payment date and at such other times as the Trustee may request in writing a list, in such form  and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each  Series of Securities.     Section 2.7.                                 Transfer and Exchange.     





 






Where Securities of a Series are presented to the Registrar or a co-registrar with a request to  register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar  shall register the transfer or make the exchange if its requirements for such transactions are met.  To permit  registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.  No  service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted  herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental  charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable  upon exchanges pursuant to Sections 2.11, 3.6 or 9.6). Each Holder that is a transferor of a Security shall provide or  cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax  reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code  Section 6045.  The Trustee may rely on information provided to it and shall have no responsibility to verify or  ensure the accuracy of such information.     Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or  exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately  preceding the sending of a notice of redemption of Securities of that Series selected for redemption and ending at the  close of business on the day of such sending, or (b) to register the transfer of or exchange Securities of any  Series selected, called or being called for redemption as a whole or the portion being redeemed of any such  Securities selected, called or being called for redemption in part.     Section 2.8.                                 Mutilated, Destroyed, Lost and Stolen Securities.     If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee  shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal  amount and bearing a number not contemporaneously outstanding.     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the  destruction, loss or theft of any Security and (ii) such security or indemnity bond as may be required by each of  them to hold itself and any of its agents harmless, then, in the absence of notice to the Company or the Trustee that  such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the  Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a  new Security of the same Series and of like tenor and principal amount and bearing a number not  contemporaneously outstanding.     In case any such mutilated, destroyed, lost or stolen Security has become or is about to become  due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.     Upon the issuance of any new Security under this Section, the Company may require the payment  of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any  other expenses (including the fees and expenses of the Trustee) connected therewith.     Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or  stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the  destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits  of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other  rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.     Section 2.9.                                 Outstanding Securities.     The Securities outstanding at any time are all the Securities authenticated by the Trustee except for  those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security  effected by the Trustee in accordance with the provisions hereof and those described in this Section as not  outstanding.     





 






If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee  receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.     If by 11 a.m. New York City time the Paying Agent (other than the Company, a Subsidiary of the  Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay  such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding  and interest on them ceases to accrue.     The Company may purchase or otherwise acquire the Securities, whether by open market  purchases, negotiated transactions or otherwise.  A Security does not cease to be outstanding because the Company  or an Affiliate of the Company holds the Security (but see Section 2.10 below).     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 a 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 6.2.     Section 2.10.                          Treasury Securities.     In determining whether the Holders of the required principal amount of Securities of a Series have  concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned  by the Company or any Affiliate of the Company shall be disregarded and deemed not to be outstanding for all  purposes of this Indenture, except that for the purposes of determining whether the Trustee shall be protected in  relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a  Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.     Section 2.11.                          Temporary Securities.     Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall  authenticate temporary Securities upon a Company Order.  Temporary Securities shall be substantially in the form  of definitive Securities but may have variations that the Company considers appropriate for temporary  Securities.  Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company  Order shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary  Securities.  Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive  Securities.     Section 2.12.                          Cancellation.     The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar  and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer,  exchange or payment.  The Trustee shall cancel all Securities surrendered for transfer, exchange, payment,  replacement or cancellation and shall dispose of such canceled Securities pursuant to its standard procedures  (subject to the record retention requirements of the Exchange Act) and shall provide evidence of such cancellation to  the Company upon written request of the Company.  The Company may not issue new Securities to replace  Securities that it has paid or delivered to the Trustee for cancellation.     Section 2.13.                          Defaulted Interest.     If the Company defaults in a payment of interest on a Series of Securities, it shall pay the  defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons  who are Securityholders of the Series on a subsequent special record date.  The Company shall fix the record date  and payment date.  At least 10 days before the special record date, the Company shall send to the Trustee and to  each Securityholder of the Series a notice that states the special record date, the payment date and the amount of  interest to be paid.  The Company may pay defaulted interest in any other lawful manner.     





 






Section 2.14.                          Global Securities.     2.14.1.           Terms of Securities.  A Board Resolution, a supplemental indenture hereto or an Officer’s  Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or  more Global Securities and the Depositary for such Global Security or Securities. If the Company enters into a letter  of representations with the Depositary, the Trustee and each Agent are hereby authorized to act in accordance with  such letter and Applicable Procedures.    2.14.2.           Transfer and Exchange.  Notwithstanding any provisions to the contrary contained in  Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to  Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depositary for such  Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as  Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under  the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing  agency under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee  an Officer’s Certificate to the effect that such Global Security shall be so exchangeable, (iii) an Event of Default  shall have occurred and be continuing and owners of beneficial interests in the Global Security in an amount not less  than a majority of the aggregate principal amount of such Global Security have delivered to the Company and the  Trustee a notice indicating that the continuing of the book-entry system through DTC is no longer in the best interest  of the holders of such beneficial interests or (iv) the Company and a holder of a beneficial interest in a Global  Security otherwise agree.  Any Global Security that is exchangeable pursuant to the preceding sentence shall be  exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate  principal amount equal to the principal amount of the Global Security with like tenor and terms. In connection with  any proposed transfer of Securities other than Global Securities in exchange for Global Securities, the Company or  DTC shall be required to provide or cause to be provided to the Trustee all information necessary to allow the  Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis  reporting obligations under Internal Revenue Code Section 6045.  The Trustee may rely on  information provided to  it and shall have no responsibility to verify or ensure the accuracy of such information.     Except as provided in this Section 2.14.2, a Global Security may not be transferred except as a  whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of  such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such  nominee to a successor Depositary or a nominee of such a successor Depositary.     2.14.3.           Legends.  Any Global Security issued hereunder shall bear a legend in substantially the  following form:     “THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE  INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY  OR A NOMINEE OF THE DEPOSITARY.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES  REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY  IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE  TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,  BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE  DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR  A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”     In addition, so long as the Depository Trust Company (“DTC”) is the Depositary, each Global Note  registered in the name of DTC or its nominee shall bear a legend in substantially the following form:     “UNLESS THIS GLOBAL NOTE 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 GLOBAL NOTE 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 THE REGISTERED OWNER HEREOF,  CEDE & CO., HAS AN INTEREST HEREIN.”     2.14.4.           Acts of Holders.  The Depositary, as a Holder, may appoint agents and otherwise  authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other  action which a Holder is entitled to give or take under the Indenture.     2.14.5.           Payments.  Notwithstanding the other provisions of this Indenture, unless otherwise  specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security  shall be made to the Holder thereof.     2.14.6.           Consents, Declaration and Directions.  The Company, the Trustee and any Agent shall  treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a  Global Security as shall be specified in a written statement of the Depositary or by Applicable Procedures, for  purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant  to this Indenture.     Section 2.15.                          CUSIP Numbers.     The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,  if so, the Trustee may use “CUSIP” numbers in notices as a convenience to Holders; provided that any such notice  may state that no representation is made as to the correctness of such numbers either as printed on the Securities or  as contained in any notice and that reliance may be placed only on the other elements of identification printed on the  Securities, and any such notice shall not be affected by any defect in or omission of such numbers.     ARTICLE III.  REDEMPTION     Section 3.1.                                 Notice to Trustee.     The Company may, with respect to any Series of Securities, reserve the right to redeem and pay  the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the  Stated Maturity thereof at such time and on such terms as provided for in such Securities.  If a Series of Securities is  redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the  Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption  date, redemption price and the principal amount of Series of Securities to be redeemed.  The Company shall give the  notice to the Trustee at least 40 days before the redemption date unless a shorter period is agreed to by the Trustee.  If the redemption price is not known at the time such notice is to be given, the actual redemption price calculated as  described in the terms of the Securities will be set forth in an Officer’s Certificate delivered to the Trustee no later  than two Business Days prior to the redemption date or, in the case of a satisfaction and discharge, on the third  Business Day prior to the date the Company deposits the amount required under this Indenture most nearly equal to  the period from the redemption date to the date of Maturity. Subject to the TIA, the Trustee is permitted to accept  the Company’s direction regarding redemptions and the Trustee shall have no liability for any action taken at the  Company’s direction.     Section 3.2.                                 Selection of Securities to be Redeemed.     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture  hereto or an Officer’s Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select  the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate, including by  lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in the case  of Global Securities, to Applicable Procedures.  The Trustee shall make the selection from Securities of the  Series outstanding not previously called for redemption.  The Trustee may select for redemption portions of the  principal of Securities of the Series that have denominations larger than $1,000.  Securities of the Series and  portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 in excess thereof or, with  





 






respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum  principal denomination for each Series and the authorized integral multiples thereof.  Provisions of this Indenture  that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for  redemption.     Section 3.3.                                 Notice of Redemption.     Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture  hereto or an Officer’s Certificate, at least 30 days but not more than 60 days before a redemption date, the Company  shall mail a notice of redemption by first-class mail, or in the case of Global Securities send pursuant to Applicable  Procedures, to each Holder whose Securities are to be redeemed.     The notice shall identify the Securities of the Series to be redeemed and shall state:     (a)                                 the redemption date;     (b)                                 the redemption price (or manner of calculation if not then known);     (c)                                  the name and address of the Paying Agent;     (d)                                 if any Securities are being redeemed in part, the portion of the principal amount of such  Securities to be redeemed and that, after the redemption date and upon surrender of such Security, a new  Security or Securities in principal amount equal to the unredeemed portion of the original Security shall be  issued in the name of the Holder thereof upon cancellation of the original Security or delivered by book  entry;     (e)                                  that Securities of the Series called for redemption must be surrendered to the Paying  Agent to collect the redemption price;     (f)                                   that interest on Securities of the Series called for redemption ceases to accrue on and after  the redemption date unless the Company defaults in the deposit of the redemption price;     (g)                                  the CUSIP number, if any, and that no representation is made as to the correctness or  accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities; and     (h)                                 any other information as may be required by the terms of the particular Series or the  Securities of a Series being redeemed.     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name  and at its expense, provided, however, that the Company has delivered to the Trustee, at least 10 days (unless a  shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate requesting that the  Trustee give such notice and setting forth the notice to be given as an exhibit thereto.     Section 3.4.                                 Effect of Notice of Redemption.     Once notice of redemption is sent as provided in Section 3.3, Securities of a Series called for  redemption become due and payable on the redemption date and at the redemption price.  Except as otherwise  provided in the supplemental indenture, Board Resolution or Officer’s Certificate for a Series, a notice of  redemption may not be conditional.  Upon surrender to the Paying Agent, such Securities shall be paid at the  redemption price plus accrued interest to the redemption date.     Section 3.5.                                 Deposit of Redemption Price.     On or before 11:00 a.m., New York City time, on the redemption date, the Company shall deposit  with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities  to be redeemed on that date.  





 






   Section 3.6.                                 Securities Redeemed in Part.     Upon surrender of a Security that is redeemed in part, the Company shall issue and the Trustee  shall authenticate (or cause to be delivered by book entry) for the Holder a new Security of the same Series and the  same maturity equal in principal amount to the unredeemed portion of the Security surrendered.     ARTICLE IV.  COVENANTS     Section 4.1.                                 Payment of Principal and Interest.     The Company covenants and agrees for the benefit of the Holders of each Series of Securities that  it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with  the terms of such Securities and this Indenture.  On or before 11:00 a.m., New York City time, on the applicable  payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and  interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.     Section 4.2.                                 SEC Reports.     Whether or not required by the SEC’s rules and regulations, so long as any Securities are  outstanding, the Company will furnish to the Trustee, within 15 days after the time periods (including any  extensions thereof) specified in the SEC’s rules and regulations:     (1)                                 all quarterly and annual reports that would be required to be filed with the SEC on  Forms 10-Q and 10-K if the Company were required to file such reports; and     (2)                                 all current reports that would be required to be filed with the SEC on Form 8-K if the  Company were required to file such reports.     Reports, information and documents filed by the Company with the SEC via the EDGAR system  will be deemed to have been furnished to the Trustee as of the time such documents are filed via EDGAR. The  Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports  have been filed pursuant to the EDGAR filing system (or its successor) have occurred.     In addition, for so long as any Securities remain outstanding, at any time the Company is not  required to file the reports required by the preceding paragraphs with the SEC, the Company will furnish to the  Holders of the Securities and to securities analysis and prospective investors, upon their written request, the  information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.     Delivery of any reports, information and documents to the Trustee will be for informational  purposes only, and the Trustee’s receipt thereof 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 under this Indenture or documents related thereto.     Section 4.3.                                 Compliance Certificate.     To the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee,  within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate signed by either the  principal executive officer, the principal financial officer or the principal accounting officer of the Company that  need not comply with Section 10.5 stating that a review of the activities of the Company and its Subsidiaries during  the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining  whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further  stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the Company has kept,  observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the  performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default  





 






shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge). In  addition, the Company shall deliver to the Trustee within 30 days after an officer of the Company becomes aware of  the occurrence of any Event of Default or Default, an Officer’s Certificate setting forth the details of such Event of  Default or Default, its status and the action that the Company is taking or proposing to take in respect thereof;  provided that the Company is not required to deliver such notice if such Event of Default or Default has been cured.      Section 4.4.                                 Stay, Extension and Usury Laws.     The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist  upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law  wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this  Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all  benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or  impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every  such power as though no such law has been enacted.     Section 4.5.                                 Corporate Existence.     Subject to Article V, the Company will do or cause to be done all things necessary to preserve and  keep in full force and effect its corporate existence and rights (charter and statutory); provided, however, that the  Company shall not be required to preserve any such right if the Board of Directors shall determine that the  preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken  as a whole and that the loss thereof is not adverse in any material respect to the Holders.     ARTICLE V.  SUCCESSORS     Section 5.1.                                 When Company May Merge, Etc.     The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or  substantially all of its properties and assets to, any person (a “successor person”) unless:     (a)                                 the Company is the surviving corporation or the successor person (if other than the  Company) is a person organized and validly existing under the laws of the United States of America, any  U.S. domestic jurisdiction or the District of Colombia, and expressly assumes by a supplemental indenture  all the Company’s obligations on the Securities and under this Indenture; and     (b)                                 immediately after giving effect to the transaction, no Default or Event of Default, shall  have occurred and be continuing.     The Company shall deliver to the Trustee prior to the consummation of the proposed foregoing  transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed  transaction and any supplemental indenture comply with this Indenture.     Notwithstanding the above, any Subsidiary of the Company may consolidate with, merge into or  transfer all or part of its properties to the Company.  Neither an Officer’s Certificate nor an Opinion of Counsel shall  be required to be delivered in connection therewith.     Section 5.2.                                 Successor Corporation Substituted.     Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or  substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by  such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other  disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the  Company under this Indenture with the same effect as if such successor person has been named as the Company  





 






herein; provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition  (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.     ARTICLE VI.  DEFAULTS AND REMEDIES     Section 6.1.                                 Events of Default.     “Event of Default,” wherever used herein with respect to Securities of any Series, means any one  of the following events, unless in the establishing Board Resolution, supplemental indenture or Officer’s Certificate,  it is provided that such Series shall not have the benefit of said Event of Default:     (a)                                 default in any payment of the principal amount or premium, if any, on any of the  Securities when such amount becomes due and payable at Stated Maturity, upon acceleration, redemption  or otherwise; or     (b)                                 failure to pay interest on the Securities when such interest becomes due and payable and  such failure continues for a period of 30 days; or     (c)                                  failure by the Company to comply with any other covenants or agreements applicable to  the Securities and such failure continues for 60 days after the notice specified below; or     (d)                                 default in the performance or breach of any covenant or warranty of the Company in this  Indenture (other than defaults pursuant to paragraphs (a) or (b) above or pursuant to a covenant or warranty  that has been included in this Indenture solely for the benefit of Series of Securities other than that Series),  which default continues uncured for a period of 60 days after there has been given, by registered or  certified mail, or overnight courier guaranteeing next Business day delivery, to the Company by the Trustee  or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding  Securities of that Series a written notice specifying such default or breach and requiring it to be remedied  and stating that such notice is a “Notice of Default” hereunder; or     (e)                                  the Company pursuant to or within the meaning of any Bankruptcy Law:     (i)                                     commences a voluntary case,     (ii)                                  consents to the entry of an order for relief against it in an involuntary case,     (iii)                               consents to the appointment of a Custodian of it or for all or substantially all of  its property,     (iv)                              makes a general assignment for the benefit of its creditors, or     (v)                                 generally is unable to pay its debts as the same become due; or     (f)                                   a court of competent jurisdiction enters an order or decree under any Bankruptcy Law  that:     (i)                                     is for relief against the Company in an involuntary case,     (ii)                                  appoints a Custodian of the Company or for all or substantially all of its  property, or     (iii)                               orders the liquidation of the Company,     and the order or decree remains unstayed and in effect for 60 days; or     





 






(g)                                  any other Event of Default provided with respect to Securities of that Series, which is  specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance  with Section 2.2.18.     The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the  relief of debtors.  The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under  any Bankruptcy Law.     The Company will provide the Trustee written notice of any Default or Event of Default  within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe  in reasonable detail the status of such Default or Event of Default and what action the Company is taking or  proposes to take in respect thereof.     Section 6.2.                                 Acceleration of Maturity; Rescission and Annulment.     If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is  continuing (other than an Event of Default referred to in Section 6.1(e) or (f)) then in every such case the Trustee or  the Holders of not less than 25% in principal amount of the outstanding Securities of that Series may declare the  principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as  may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities  of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given  by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid  interest, if any, shall become immediately due and payable.  If an Event of Default specified in Section 6.1(e) or  (f) shall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all  outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other  act on the part of the Trustee or any Holder.     At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment  or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the  Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the  Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default with  respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of  that Series which have become due solely by such declaration of acceleration, have been cured or waived as  provided in Section 6.13. The Company shall pay any amounts owing to the Trustee pursuant to Section 7.7 upon  any such rescission or annulment of a declaration of acceleration.     No such rescission shall affect any subsequent Default or impair any right consequent thereon.     Section 6.3.                                 Collection of Indebtedness and Suits for Enforcement by Trustee.     The Company covenants that if     (a)                                 default is made in the payment of any interest on any Security when such interest  becomes due and payable and such default continues for a period of 30 days, or     (b)                                 default is made in the payment of principal of any Security at the Maturity thereof, or     (c)                                  default is made in the deposit of any sinking fund payment, if any, when and as due by  the terms of a Security,     then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the  whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of  such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or  rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to  cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and  advances of the Trustee, its agents and counsel.  





 






   If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own  name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and  unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company  or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner  provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.      If an Event of Default with respect to any Securities of any Series occurs and is continuing, the  Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of  such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce  any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the  exercise of any power granted herein, or to enforce any other proper remedy.     Section 6.4.                                 Trustee May File Proofs of Claim.     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,  arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor  upon the Securities of a Series (if the occurrence of such event to such other obligor would constitute a Default  under the Securities of such Series) or the property of the Company or of such other obligor or their creditors, the  Trustee (irrespective of whether the principal of the Securities 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 on the Company  for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such  proceeding or otherwise,     (a)                                 to file and prove a claim for the whole amount of principal and interest owing and unpaid  in respect of the Securities and to file such other papers or documents as may be necessary or advisable in  order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,  disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such  judicial proceeding, and     (b)                                 to collect and receive any moneys or other property payable or deliverable on any such  claims and to distribute the same,     and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial  proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the  Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due  it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and  any other amounts due the Trustee under Section 7.7. To the extent that the payment of any such compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee  under Section 7.7 hereof out of the estate in any such proceeding, shall be unpaid for any reason, payment of the  same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities  and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under  any plan of reorganization or arrangement or otherwise. The Trustee may, on behalf of the Holders, vote for the  election of a trustee in bankruptcy or similar official and be a member of a creditors’ committee or other similar  committee.     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or  accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition  affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim  of any Holder in any such proceeding.     Section 6.5.                                 Trustee May Enforce Claims Without Possession of Securities.     All rights of action and claims under this Indenture or the Securities may be prosecuted and  enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding  relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an  





 






express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders  of the Securities in respect of which such judgment has been recovered.     Section 6.6.                                 Application of Money Collected.     Any money or property collected by the Trustee pursuant to this Article, and after an Event of  Default any money or other property distributable in respect of the Company’s obligations under this Indenture,  shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of  such money or property on account of principal or interest, upon presentation of the Securities and the notation  thereon of the payment if only partially paid and upon surrender thereof if fully paid:     First:  To the payment of all amounts due the Trustee and any predecessor under this Indenture;  and     Second:  To the payment of the amounts then due and unpaid for principal of and interest on the  Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference  or priority of any kind, according to the amounts due and payable on such Securities for principal and interest,  respectively; and     Third:  To the Company.     Section 6.7.                                 Limitation on Suits.     No Holder of any Security of any Series shall have any right to institute any proceeding, judicial  or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy  hereunder, unless     (a)                                 such Holder has previously given written notice to the Trustee of a continuing Event of  Default with respect to the Securities of that Series;     (b)                                 the Holders of not less than 25% in principal amount of the outstanding Securities of that  Series shall have made written request to the Trustee to institute proceedings in respect of such Event of  Default in its own name as Trustee hereunder;     (c)                                  such Holder or Holders have offered to the Trustee indemnity or security satisfactory to  the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance  with such request;     (d)                                 the Trustee for 60 days after its receipt of such notice, request and offer of indemnity or  security has failed to institute any such proceeding; and     (e)                                  no direction inconsistent with such written request has been given to the Trustee during  such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that  Series; it being understood, intended and expressly covenanted by the Holder of every Security with every  other Holder and the Trustee that no one or more of such Holders shall have any right in any manner  whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the  rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of  such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the  equal and ratable benefit of all such Holders of the applicable Series.     Section 6.8.                                 Unconditional Right of Holders to Receive Principal and Interest.     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the  right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such  Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case  





 






of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights  shall not be impaired without the consent of such Holder.     Section 6.9.                                 Restoration of Rights and Remedies.     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under  this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined  adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such  proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former  positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no  such proceeding had been instituted.     Section 6.10.                          Rights and Remedies Cumulative.     Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed,  lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the  Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent  permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter  existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or  otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other  appropriate right or remedy.     Section 6.11.                          Delay or Omission Not Waiver.     No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or  remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such  Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee  or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or  by the Holders, as the case may be.     Section 6.12.                          Control by Holders.     The Holders of a majority in principal amount of the outstanding Securities of any Series shall  have the right to direct the time, method and place of conducting any proceeding for any remedy available to the  Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series,  provided that     (a)                                 such direction shall not be in conflict with any rule of law or with this Indenture,     (b)                                 the Trustee has not in good faith determined that such direction may be unduly  prejudicial to the rights of other Holders of Securities not taking part in such direction (it being understood  that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are  unduly prejudicial to such Holders),     (c)                                  the Trustee may take any other action deemed proper by the Trustee which is not  inconsistent with such direction,     (d)                                 subject to the provisions of Section 6.1, the Trustee shall have the right to decline to  follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee,  determine that the proceeding so directed would involve the Trustee in personal liability, and     (e)                                  prior to taking any action as directed under this Section 6.12, the Trustee shall be entitled  to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in  compliance with such request or direction.     Section 6.13.                          Waiver of Past Defaults.  





 






   By notice to the Trustee, the Holders of a majority in aggregate principal amount of the Securities of the  applicable Series then outstanding may waive an existing Default and its consequences except (i) a Default in the  payment of the principal amount of, premium, if any, and accrued and unpaid interest on the Securities of the  applicable Series, (ii) a Default arising from the failure to redeem or purchase any Security when required pursuant  to the terms of the Indenture or (iii) a Default in respect of a provision that under the Indenture cannot be amended  without the consent of each Holder of the Securities affected.  Further, the Holders of a majority in principal amount  of the Securities of the applicable Series by written notice to the Trustee may rescind an acceleration of the  Securities of the applicable Series and its consequences if the rescission would not conflict with any judgment or  decree and if all existing Events of Default with respect to the Securities of the applicable Series have been cured or  waived, except nonpayment of the principal amount of, and accrued and unpaid interest on, the Securities of the  applicable Series that have become due solely because of acceleration. The Company shall pay any amounts owing  to the Trustee pursuant to Section 7.7 upon any such rescission or annulment of a declaration of acceleration.     Section 6.14.                          Undertaking for Costs.     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall  be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or  remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as  Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such  court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in  such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but  the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any  Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding  Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal  of or interest on any Security on or after the Maturity of such Security, including the Stated Maturity expressed in  such Security (or, in the case of redemption, on the redemption date).     ARTICLE VII.  TRUSTEE     Section 7.1.                                 Duties of Trustee.     (a)                                 If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights  and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a  prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.     (b)                                 Except during the continuance of an Event of Default:     (i)                                     The Trustee need perform only those duties that are specifically set forth in this  Indenture and no others, and no implied covenants or obligations shall be read into this Indenture  against the Trustee.     (ii)                                  In the absence of bad faith on its part, the Trustee may conclusively rely, as to  the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s  Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements  of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel  which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee  shall examine such Officer’s Certificates and Opinions of Counsel to determine whether or not  they conform to the form requirements of this Indenture (but need not confirm or investigate the  accuracy of any mathematical calculations or other facts stated therein).      (c)                                  The Trustee may not be relieved from liability for its own negligent action, its own  negligent failure to act or its own willful misconduct, except that:     (i)                                     This paragraph does not limit the effect of paragraph (b) of this Section.  





 






   (ii)                                  The Trustee shall not be liable for any error of judgment made in good faith by  a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the  pertinent facts.     (iii)                               The Trustee shall not be liable with respect to any action taken, suffered or  omitted to be taken by it with respect to Securities of any Series in good faith in accordance with  the direction of the Holders of a majority in principal amount of the outstanding Securities of such  Series relating to the time, method and place of conducting any proceeding for any remedy  available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this  Indenture with respect to the Securities of such Series in accordance with Section 6.12.     (d)                                 Every provision of this Indenture that in any way relates to the Trustee is subject to  paragraph (a), (b) and (c) of this Section.     (e)                                  The Trustee may refuse to perform any duty or exercise any right or power unless it  receives indemnity satisfactory to it against the costs, losses, expenses and liabilities which might be  incurred by it in performing such duty or exercising such right or power.     (f)                                   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.  Money held in trust by the Trustee need not be segregated  from other funds except to the extent required by law. The Trustee shall not be required to give any bond or  surety in respect of the performance of its powers or duties hereunder.     (g)                                  No provision of this Indenture shall require the Trustee to risk its own funds or otherwise  incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or  powers.     (h)                                 The Paying Agent, the Registrar and any authenticating agent shall be entitled to the  protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section and in Section 7.2,  each with respect to the Trustee.     Section 7.2.                                 Rights of Trustee.     (a)                                 The Trustee may rely on and shall be protected in acting or refraining from acting upon  any document (whether in its original or facsimile form) believed by it to be genuine and to have been  signed or presented by the proper person.  The Trustee need not investigate any fact or matter stated in the  document.      (b)                                 Before the Trustee acts or refrains from acting, or to establish matters, it may require an  Officer’s Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any action it  takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. Any  request, demand, notice, or direction of the Company shall be sufficiently evidenced by an Officer’s  Certificate or by a Company Order, or signed by an Officer, and any resolution of the Board of Directors  may be sufficiently evidenced by a Board Resolution.     (c)                                  The Trustee may act through agents, attorneys, custodians or nominees and shall not be  responsible for the misconduct or negligence of any agent, attorneys, custodians or nominees appointed  with due care.  No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be  responsible for any act or omission by any Depositary.     (d)                                 The Trustee shall not be liable for any action it takes or omits to take in good faith which  it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not  constitute willful misconduct or negligence.     





 






(e)                                  The Trustee may consult with counsel and the advice of such counsel or any Opinion of  Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or  omitted by it hereunder without willful misconduct or negligence, and in reliance thereon.     (f)                                   The Trustee shall be under no obligation to exercise any of the rights or powers vested in  it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall  have offered to the Trustee security or indemnity satisfactory to it against the costs, losses, expenses and  liabilities which might be incurred by it in compliance with such request or direction.     (g)                                  The Trustee shall not be bound to make any investigation into the facts or matters stated  in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,  order, bond, debenture, note, other evidence of indebtedness or other paper or document, or inquire as to  the performance by the Company of any of their covenants in this Indenture, but the Trustee, in its  discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and  shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.     (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 unless 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 from the Company or from the Holders of at least 25% in principal amount of the  outstanding Securities of such Series, and such notice references the Securities generally or the Securities  of a particular Series and this Indenture.     (i)                                     In no event shall the Trustee be liable to any person for special, punitive, indirect,  consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost  profits), even if the Trustee has been advised of the likelihood of such loss or damage.    (j)                                    The permissive right of the Trustee to take the actions permitted by this Indenture shall  not be construed as an obligation or duty to do so.     (k) The rights, privileges, protections, immunities and benefits given to the Trustee,  including without limitation its right to be compensated, reimbursed, and indemnified, are extended to, and  shall be enforceable by, each Agent.     (l) The Trustee may request that the Company deliver an Officer’s Certificate setting forth  the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with  Officer’s Certificates, Company Orders and any other matters or directions pursuant to this Indenture.     Section 7.3.                                 Individual Rights of Trustee.     The Trustee in its individual or any other capacity may become the owner or pledgee of Securities  and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it  were not Trustee.  Any Agent may do the same with like rights.  The Trustee is also subject to Sections 7.10  and 7.11.     Section 7.4.                                 Trustee’s Disclaimer.     The Trustee makes no representation as to and shall not be responsible for the validity or adequacy  of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the  Securities or any money paid to the Company or upon the Company’s direction under any provision of this  Indenture, and it shall not be responsible for any statement or recital herein or in the Securities other than its  authentication, or in any document in connection with the sale of any of the Securities. Under no circumstances shall  the Trustee be liable in its individual capacity for the obligations evidenced by the Securities. The Trustee shall have  no obligation to pursue any action that is not in accordance with applicable law. The Trustee shall not be responsible  





 






for and makes no representation as to any act or omission of any rating agency or any rating with respect to any of  the Securities.     Section 7.5.                                 Notice of Defaults.     If a Default or Event of Default occurs and is continuing with respect to the Securities of any  Series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each  Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs  or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default.  Except in  the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the  Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible  Officers in good faith determines that withholding the notice is in the interests of Securityholders of that Series.     Section 7.6.                                 Reports by Trustee to Holders.     Within 60 days after each anniversary of the date of this Indenture following the first issuance of  Securities hereunder, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear  on the register kept by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the  extent required under, TIA § 313(a). The Trustee also shall comply with TIA Section 313(b)(2) to the extent  applicable.     A copy of each report at the time of its mailing to Securityholders of any Series shall be filed with  the SEC and each national securities exchange on which the Securities of that Series are listed.  The Company shall  promptly notify the Trustee in writing when Securities of any Series are listed on any national securities exchange.     Section 7.7.                                 Compensation and Indemnity.     The Company shall pay to the Trustee from time to time compensation for its services as the  Company and the Trustee shall from time to time agree upon in writing.  The Trustee’s compensation shall not be  limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon  request for all reasonable out of pocket expenses incurred by it.  Such expenses shall include the reasonable  compensation and expenses of the Trustee’s agents and counsel.    The Company shall indemnify each of the Trustee and any predecessor Trustee (including  reasonable and documented attorneys’ fees and expenses and court costs of defending itself) and hold it harmless  against any loss, damage, claim, cost, fee, expense or liability, including taxes (other than taxes based upon,  measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in  connection with the acceptance or administration of this Indenture, the exercise or performance of any of its rights or  powers or in the performance of its duties under this Indenture as Trustee or Agent, including the reasonable and  documented costs and expenses of enforcing this Indenture against the Company (including this Section 7.7).  The  Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee to  so notify the Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the  claim and the Trustee shall cooperate in the defense.  The Trustee may have one separate counsel and the Company  shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made  without its consent, which consent will not be unreasonably withheld.  This indemnification shall apply to officers,  directors, employees, shareholders and agents of the Trustee. The obligations of the Company under this Section 7.7  shall survive the satisfaction and discharge of this Indenture and resignation or removal of the Trustee.     The Company need not reimburse any expense or indemnify against any loss or liability incurred  by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through willful misconduct  or negligence as finally adjudicated by a court of competent jurisdiction.     To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to  the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay  principal of and interest on particular Securities of that Series.     





 






When the Trustee incurs expenses or renders services after an Event of Default specified in  Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to constitute expenses  of administration under any Bankruptcy Law.     The provisions of this Section shall survive the termination of this Indenture and resignation or  removal of the Trustee. “Trustee” for the purposes of this Section 7.7 shall include any predecessor Trustee and the  Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act  hereunder; provided, however, that the negligence or willful misconduct of any Trustee hereunder shall not affect  the rights of any other Trustee hereunder.     Section 7.8.                                 Replacement of Trustee.     A resignation or removal of the Trustee and appointment of a successor Trustee shall become  effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.     The Trustee may resign with respect to the Securities of one or more Series by so notifying the  Company at least 30 days prior to the date of the proposed resignation.  The Holders of a majority in principal  amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee  and the Company.  The Company may remove the Trustee with respect to Securities of one or more Series if:     (a)                                 the Trustee fails to comply with Section 7.10;     (b)                                 the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with  respect to the Trustee under any Bankruptcy Law;     (c)                                  a Custodian or public officer takes charge of the Trustee or its property; or     (d)                                 the Trustee becomes incapable of acting.     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason,  the Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office,  the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to  replace the successor Trustee appointed by the Company.     If a successor Trustee with respect to the Securities of any one or more Series does not take office  within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at  least a majority in principal amount of the Securities of the applicable Series may petition any court of competent  jurisdiction for the appointment of a successor Trustee.     A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee  and to the Company.  Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to  the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring  Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee  with respect to each Series of Securities for which it is acting as Trustee under this Indenture.  A successor Trustee  shall send a notice of its succession to each Securityholder of each such Series.  Notwithstanding replacement of the  Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the  benefit of the retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be  taken in accordance with its rights, powers and duties under this Indenture prior to such replacement.     Section 7.9.                                 Successor Trustee by Merger, Etc.     If the Trustee consolidates with, merges or converts into, or sells or transfers all or substantially all  of its corporate trust business to, another corporation, the successor corporation without any further act shall be the  successor Trustee, subject to Section 7.10.     Section 7.10.                          Eligibility; Disqualification.  





 






   This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),  (2) and (5).  The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its  most recent published annual report of condition.  The Trustee shall comply with TIA § 310(b). There shall be  excluded from the operation of TIA Section 310(b)(1) each Series of Securities under this Indenture and any  indenture or indentures under which other securities or certificates of interest or participation in other securities of  the Company if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.     Section 7.11.                          Preferential Collection of Claims Against Company.     The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §  311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.     ARTICLE VIII.  SATISFACTION AND DISCHARGE; DEFEASANCE     Section 8.1.                                 Satisfaction and Discharge of Indenture.     This Indenture shall upon Company Order cease to be of further effect (except as hereinafter  provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments  acknowledging satisfaction and discharge of this Indenture, when     (a)                                 either     (i)                                     all Securities theretofore authenticated and delivered (other than Securities that  have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the  Trustee for cancellation; or     (ii)                                  all such Securities not theretofore delivered to the Trustee for cancellation     (1)                                 have become due and payable, or     (2)                                 will become due and payable at their Stated Maturity within one year,  or     (3)                                 have been called for redemption or are to be called for redemption  within one year under arrangements satisfactory to the Trustee for the giving of notice of  redemption by the Trustee in the name, and at the expense, of the Company, or     (4)                                 are deemed paid and discharged pursuant to Section 8.3, as applicable;     and the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be deposited with the  Trustee as trust funds in trust an amount of money or U.S. Government Obligations sufficient for the purpose of  paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for  cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due  and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;     (b)                                 the Company has paid or caused to be paid all other sums payable hereunder by the  Company; and     (c)                                  the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of  Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and  discharge of this Indenture have been complied with.     





 






Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company  to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of  this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall survive.     Section 8.2.                                 Application of Trust Funds; Indemnification.     (a)                                 Subject to the provisions of Section 8.5, all money or U.S. Government Obligations  deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign  Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received  by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited  with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with  the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying  Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the  persons entitled thereto, of the principal and interest for whose payment such money has been deposited  with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as  contemplated by Sections 8.3 or 8.4.     (b)                                 The Company shall pay and shall indemnify the Trustee against any tax, fee or other  charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations  deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations  other than any payable by or on behalf of Holders.     (c)                                  The Trustee shall deliver or pay to the Company from time to time upon Company Order  any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in  Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public  accountants or investment bank expressed in a written certification thereof delivered to the Trustee, are  then in excess of the amount thereof which then would have been required to be deposited for the purpose  for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited  or received.  This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations  or Foreign Government Obligations held under this Indenture.     Section 8.3.                                 Legal Defeasance of Securities of any Series.     Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2, to be inapplicable to  Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all  the outstanding Securities of any Series on the 91st day after the date of the deposit referred to in  subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such  Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a  Company Order, execute instruments acknowledging the same), except as to:     (a)                                 the rights of Holders of Securities of such Series to receive, from the trust funds  described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of  and interest on the outstanding Securities of such Series on the Maturity of such principal or installment of  principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the  Securities of such Series on the day on which such payments are due and payable in accordance with the  terms of this Indenture and the Securities of such Series;     (b)                                 the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and     (c)                                  the rights, powers, trust and immunities of the Trustee hereunder and the Company’s  obligations in connection therewith;     provided that, the following conditions shall have been satisfied:     (d)                                 the Company shall have deposited or caused to be irrevocably deposited (except as  provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following  





 






payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such  Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or  U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign  Currency (other than a composite currency), money and/or Foreign Government Obligations, which  through the payment of interest and principal in respect thereof in accordance with their terms, will provide  (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than  one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a  nationally recognized firm of independent public accountants or investment bank expressed in a written  certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and  interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such  Series on the dates such installments of interest or principal and such sinking fund payments are due;     (e)                                  such defeasance will not result in a breach or violation of, or constitute a default under,  this Indenture or any other agreement or instrument to which the Company is a party or by which it is  bound;     (f)                                   no Event of Default shall have occurred and be continuing either:  (x) on the date of such  deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such  deposit); or (y) with respect to Events of Default described in Section 6.1(d) and (e) or other bankruptcy,  insolvency or reorganization-related Events of Default, at any time in the period ending on the 91st day  after the date of deposit;      (g)                                  the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion  of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal  Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the  applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of  Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or  loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be  subject to Federal income tax on the same amount and in the same manner and at the same times as would  have been the case if such deposit, defeasance and discharge had not occurred;     (h)                                 the Company shall have delivered to the Trustee an Officer’s Certificate stating that the  deposit was not made by the Company with the intent of preferring the Holders of the Series of Securities  over any other creditor of the Company or with the intent of defeating, hindering, delaying or defrauding  any other creditors of the Company; and     (i)                                     the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion  of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated  by this Section have been complied with.     Section 8.4.                                 Covenant Defeasance.     Unless this Section 8.4 is otherwise specified pursuant to Section 2.2 to be inapplicable to  Securities of any Series, the Company may omit to comply with respect to the Securities of any Series with any  term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, and 5.1 as well as any additional covenants  specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate  delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or  Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a  supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered  pursuant to Section 2.2.18 and designated as an Event of Default shall not constitute a Default or Event of Default  hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been  satisfied:     (a)                                 reference to this Section 8.4, the Company has deposited or caused to be irrevocably  deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of  making the following payments specifically pledged as security for, and dedicated solely to, the benefit of  





 






the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in  Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in  a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,  which through the payment of interest and principal in respect thereof in accordance with their terms, will  provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later  than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of  a nationally recognized firm of independent certified public accountants or investment bank expressed in a  written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of  and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such  Series on the dates such installments of interest or principal and such sinking fund payments are due;     (b)                                 such covenant defeasance will not result in a breach or violation of, or constitute a default  under, this Indenture or any other agreement or instrument to which the Company is a party or by which it  is bound;     (c)                                  no Event of Default shall have occurred and be continuing either:  (x) on the date of such  deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such  deposit); or (y) with respect to Events of Default described in Section 6.1(d) and (e) or other bankruptcy,  insolvency or reorganization-related Events of Default, at any time in the period ending on the 91st day  after the date of deposit;     (d)                                 the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that  Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax  purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax on  the same amounts, in the same manner and at the same times as would have been the case if such deposit  and covenant defeasance had not occurred;     (e)                                  the Company shall have delivered to the Trustee an Officer’s Certificate stating the  deposit was not made by the Company with the intent of preferring the Holders of the Series of Securities  over any other creditor of the Company or with the intent of defeating, hindering, delaying or defrauding  any other creditors of the Company; and     (f)                                   the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion  of Counsel, each stating that all conditions precedent herein provided for relating to the covenant  defeasance contemplated by this Section have been complied with.     Section 8.5.                                 Repayment to Company.     Subject to applicable abandoned property law, the Trustee and the Paying Agent shall pay to the  Company upon request any money held by them for the payment of principal and interest that remains unclaimed for  two years.  After that, the Trustee shall be relieved of any liability and Securityholders entitled to the money must  look to the Company for payment as general creditors unless an applicable abandoned property law designates  another person.     Section 8.6.                                 Reinstatement.     If the Trustee or the Paying Agent is unable to apply any money deposited with respect to  Securities of any Series in accordance with Section 8.1 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 obligations of the Company under this Indenture with respect to the Securities of such Series and under the  Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1  until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with  Section 8.1; provided, however, that if the Company has made any payment of principal of or interest on any  Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the  Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the  Trustee or Paying Agent after payment in full to the Holders.  





 






   ARTICLE IX.  AMENDMENTS AND WAIVERS     Section 9.1.                                 Without Consent of Holders.     The Company and the Trustee may amend or supplement this Indenture or the Securities of one or  more Series without the consent of any Securityholder:     (a)                                 to cure any ambiguity, defect or inconsistency, as evidenced by an Officer’s Certificate;     (b)                                 to comply with Article V;     (c)                                  to provide for uncertificated Securities in addition to or in place of certificated Securities;     (d)                                 to add guarantees with respect to Securities of any Series or secure Securities of any  Series;     (e)                                  to surrender any of the Company’s rights or powers under this Indenture;     (f)                                   to add covenants or events of default for the benefit of the Holders of Securities of any  Series;     (g)                                  to comply with the applicable procedures of the applicable depositary;     (h)                                 to make any change that does not adversely affect the rights of any Securityholder;     (i)                                     to provide for the issuance of and establish the form and terms and conditions of  Securities of any Series as permitted by this Indenture;     (j)                                    to evidence and provide for the acceptance of appointment hereunder by a successor  Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of  this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by  more than one Trustee; or     (k)                                 to comply with requirements of the SEC in order to effect or maintain the qualification of  this Indenture under the TIA.     Section 9.2.                                 With Consent of Holders.     The Company and the Trustee may enter into a supplemental indenture with the written consent of  the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such  supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the  Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any  of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the  Securityholders of each such Series.  Except as provided in Section 6.13, the Holders of at least a majority in  principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in  connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the  Company with any provision of this Indenture or the Securities with respect to such Series.     It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to  approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such  consent approves the substance thereof.  After a supplemental indenture or waiver under this section becomes  effective, the Company shall mail or send to the Holders of Securities affected thereby, a notice briefly describing  the supplemental indenture or waiver.  Any failure by the Company to send or publish such notice, or any defect  therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.  





 






   Section 9.3.                                 Limitations.     Without the consent of each Securityholder affected, an amendment or waiver may not:     (a)                                 reduce the principal amount of Securities whose Holders must consent to an amendment,  supplement or waiver;     (b)                                 reduce the stated rate of interest or extend the stated time for payment of interest  (including default interest) on any Security;     (c)                                  reduce the principal or premium, if any, on any Security or change the Stated Maturity of  any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or  analogous obligation or alter the provisions with respect to the redemption of any Security (except any  provisions related to the number of days of notice to be given in the event of a redemption of a Security  which may be amended with the consent of the Holders of at least a majority in principal amount of the  outstanding Securities of such Series affected by such supplemental indenture);     (d)                                 reduce the principal amount of Discount Securities payable upon acceleration of the  maturity thereof;     (e)                                  waive a Default or Event of Default in the payment of the principal of or interest, if any,  on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least  a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment  default that resulted from such acceleration);     (f)                                   make the principal of or interest, if any, on any Security payable in any currency other  than that stated in the Security;      (g)                                  make any change in Sections 6.8, 6.13 or 9.3 (this sentence); or     (h)                                 waive a redemption payment with respect to any Security, provided that such redemption  is made at the Company’s option.     Section 9.4.                                 Compliance with Trust Indenture Act.     Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a  supplemental indenture hereto that complies with the TIA as then in effect.     Section 9.5.                                 Revocation and Effect of Consents.     Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a  consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a  Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation  of the consent is not made on any Security.  However, any such Holder or subsequent Holder may revoke the  consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of  the supplemental indenture or the date the waiver becomes effective.     Any amendment or waiver once effective shall bind every Securityholder of each Series affected  by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section 9.3. In  that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every  subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s  Security.     The Company may, but shall not be obligated to, fix a record date for the purpose of determining  the Holders entitled to give their consent or take any other action described above or required or permitted to be  





 






taken pursuant to this Indenture.  If a record date is fixed, then notwithstanding the immediately preceding  paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those  persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action,  whether or not such Persons continue to be Holders after such record date.  No such consent shall be valid or  effective for more than 120 days after such record date.     Section 9.6.                                 Notation on or Exchange of Securities.     The Company or the Trustee may place an appropriate notation about an amendment or waiver on  any Security of any Series thereafter authenticated.  The Company in exchange for Securities of that Series may  issue and the Trustee shall authenticate upon receipt of a Company Order in accordance with Section 2.3 new  Securities of that Series that reflect the amendment or waiver.     Section 9.7.                                 Trustee Protected.     In executing, or accepting the additional trusts created by, any supplemental indenture permitted  by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and  (subject to Section 7.1) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel  complying with Section 10.4 and stating that the execution of the supplemental indenture will be the valid and  legally binding obligation of the Company enforceable against it in accordance with its terms, subject to customary  exceptions and that the execution of the supplemental indenture is authorized or permitted by this Indenture. The  Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate or Opinion of Counsel  or both, except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties or  immunities.     ARTICLE X.  MISCELLANEOUS     Section 10.1.                          Trust Indenture Act Controls.     If any provision of this Indenture limits, qualifies, or conflicts with another provision which is  required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.     Section 10.2.                          Notices.     Any notice or communication by the Company or the Trustee to the other, or by a Holder to the  Company or the Trustee, is duly given if in writing and delivered in person or mailed by first-class mail (registered  or certified, return receipt requested), facsimile transmission, email or send by overnight air courier guaranteeing  next Business Day delivery addressed as follows:     if to the Company:     Allegiant Travel Company  1201 N. Town Center Drive  Las Vegas, Nevada 89144  Attention:  Gregory Anderson  Telephone:  (702) 851-7300     with a copy to:     Ellis Funk, P.C.  3490 Piedmont Road, Suite 400  Atlanta, Georgia  Attention:  Robert B. Goldberg  Telephone:  (404) 233-2800     





 






if to the Trustee:     Wells Fargo Bank, National Association  CTSO Mail Operations  MAC N9300-070  600 South Fourth Street, 7th Floor  Minneapolis, Minnesota 55415  Attention:  Corporate Trust Services – Michael Tu/Allegiant Travel Company  Administrator     The Company or the Trustee by notice to the other may designate additional or different addresses  for subsequent notices or communications. Notice to the Trustee by facsimile shall be effective only if such receipt  is acknowledged.     Any notice or communication to a Securityholder shall be mailed by first-class mail to his address  shown on the register kept by the Registrar.  Failure to mail a notice or communication to a Securityholder of any  Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other  Series.     If a notice or communication is mailed or published in the manner provided above, within the time  prescribed, it is duly given, whether or not the Securityholder receives it.     If the Company mails a notice or communication to Securityholders, it shall mail a copy to the  Trustee and each Agent at the same time.     Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any  Security provides for notice of any event (including any notice of redemption) to a Holder of a Global Security  (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security (or its  designee) pursuant to the customary procedures of such Depositary.     Section 10.3.                          Communication by Holders with Other Holders.     Securityholders of any Series may communicate pursuant to TIA § 312(b) with other  Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of  that Series or all Series.  The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA §  312(c).     Section 10.4.                          Certificate and Opinion as to Conditions Precedent.     Upon any request or application by the Company to the Trustee to take any action under this  Indenture, the Company shall furnish to the Trustee:     (a)                                 an Officer’s Certificate stating that, in the opinion of the signer, all conditions precedent,  if any, provided for in this Indenture relating to the proposed action have been complied with; and     (b)                                 an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions  precedent have been complied with.     Section 10.5.                          Statements Required in Certificate or Opinion.     Each certificate or opinion with respect to compliance with a condition or covenant provided for in  this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of  TIA § 314(e) and shall include:     (a)                                 a statement that the person making such certificate or opinion has read such covenant or  condition;  





 






   (b)                                 a brief statement as to the nature and scope of the examination or investigation upon  which the statements or opinions contained in such certificate or opinion are based;     (c)                                  a statement that, in the opinion of 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     (d)                                 a statement as to whether or not, in the opinion of such person, such condition or  covenant has been complied with.     Section 10.6.                          Rules by Trustee and Agents.     The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or  more Series.  Any Agent may make reasonable rules and set reasonable requirements for its functions.     Section 10.7.                          Legal Holidays.     Unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture  hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day.  If a payment date is a Legal  Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal  Holiday, and no interest shall accrue for the intervening period.     Section 10.8.                          No Recourse Against Others.     A director, officer, employee or stockholder (past or present), as such, of the Company shall not  have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based  on, in respect of or by reason of such obligations or their creation.  Each Securityholder by accepting a Security  waives and releases all such liability.  The waiver and release are part of the consideration for the issue of the  Securities.     Section 10.9.                          Counterparts.     This Indenture may be executed in any number of counterparts and by the parties hereto in  separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken  together shall constitute one and the same agreement.  The exchange of copies of this Indenture and of signature  pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the  parties hereto and may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto  transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Indenture (or to  any document executed in connection with this Indenture) shall be valid, binding, and enforceable against a party  only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic  signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of  the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant  provisions of the Uniform Commercial Code (collectively, “Signature Law”); (ii) an original manual signature; or  (iii) a faxed, scanned, or photocopied manual signature.  Each electronic signature or faxed, scanned, or photocopied  manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an  original manual signature.  Each party hereto shall be entitled to conclusively rely upon, and shall have no liability  with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and  shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.  For avoidance of  doubt, original manual signatures shall be used for execution or indorsement of writings when required under the  UCC or other Signature Law due to the character or intended character of the writings.     Section 10.10.                   Governing Law; Jury Trial Waiver.     THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR  CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES,  





 






SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO  THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE  GENERAL OBLIGATIONS LAW). EACH OF THE COMPANY, THE TRUSTEE, AND EACH  SECURITY HOLDER, BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO  THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL  BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,  THE SECURITIES, OR THE TRANSACTIONS CONTEMPLATED HEREBY.     Section 10.11.                   No Adverse Interpretation of Other Agreements.     This Indenture may not be used to interpret another indenture, loan or debt agreement of the  Company or a Subsidiary of the Company.  Any such indenture, loan or debt agreement may not be used to interpret  this Indenture.     Section 10.12.                   Successors.     All agreements of the Company in this Indenture and the Securities shall bind its successor.  All  agreements of the Trustee in this Indenture shall bind its successor.     Section 10.13.                   Severability.     In case any provision in this Indenture or in the Securities shall be invalid, illegal or  unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected  or impaired thereby.     Section 10.14.                   Table of Contents, Headings, Etc.     The Table of Contents, Cross Reference Table, 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 10.15.                   Securities in a Foreign Currency.     Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s  Certificate delivered pursuant to Section 2.2 of this Indenture 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 a Series or all Series affected by a particular action at the time  outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than  one currency, 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 determined by converting any such other currency into a currency that is  designated upon issuance of any particular Series of Securities.  Unless otherwise specified in a Board Resolution, a  supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with  respect to a particular Series of Securities, such conversion shall be at the spot rate for the purchase of the  designated currency as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times  is no longer published, or if such information is no longer available in The Financial Times, such source as may be  selected in good faith by the Company) on any date of determination.  The provisions of this paragraph shall apply  in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other  than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.     All decisions and determinations provided for in the preceding paragraph shall, in the absence of  manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon the  Trustee and all Holders.     Section 10.16.                   Judgment Currency.     





 






The Company agrees, to the fullest extent that it may effectively do so under applicable law, that  (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the  principal of or interest or other amount on the Securities of any Series (the “Required Currency”) into a currency in  which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which  in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required  Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day  is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal  banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment  Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and  (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or  satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with  subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery  shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable  in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of  recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full  amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being  obtained for any other sum due under this Indenture.  For purposes of the foregoing, “New York Banking Day”  means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions  are authorized or required by law, regulation or executive order to close.     Section 10.17.                   Force Majeure.     In no event shall the Trustee be responsible or liable for any failure or delay in the performance of  its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including,  without limitation, any act or provision of any present or future law or regulation or governmental authority, strikes,  work stoppages, labor stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural  catastrophes or acts of God, disease, epidemic or pandemic, quarantine, national emergency, and interruptions, loss  or malfunctions of utilities, communications or computer (software and hardware) services, communication system  failure, malware or ransomware or other unavailability of the Federal Reserve Bank wire or facsimile or other wire  or funds transfer system, or unavailability of any securities clearing system, it being understood that the Trustee  shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume  performance as soon as practicable under the circumstances.     Section 10.18                     U.S.A. Patriot Act.     The Company acknowledges that in accordance with Section 326 of the U.S.A. PATRIOT Act,  the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is  required to obtain, verify, and record information that identifies each person or legal entity that establishes a  relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the  Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A.  PATRIOT Act.     ARTICLE XI.  SINKING FUNDS     Section 11.1.                          Applicability of Article.     The provisions of this Article shall be applicable to any sinking fund for the retirement of the  Securities of a Series if so provided by the terms of such Securities pursuant to Section 2.2 and except as otherwise  permitted or required by any form of Security of such Series issued pursuant to this Indenture.     The minimum amount of any sinking fund payment provided for by the terms of the Securities of  any Series is herein referred to as a “mandatory sinking fund payment” and any other amount provided for by the  terms of Securities of such Series is herein referred to as an “optional sinking fund payment.”  If provided for by the  terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as  





 






provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any  Series as provided for by the terms of the Securities of such Series.     Section 11.2.                          Satisfaction of Sinking Fund Payments with Securities.     The Company may, in satisfaction of all or any part of any sinking fund payment with respect to  the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities of  such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for  mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund  payment is applicable and which have been repurchased by the Company or redeemed either at the election of the  Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or  through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the  terms of such Securities, provided that such Securities have not been previously so credited.  Such Securities shall  be received by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days prior to  the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for  such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking  fund and the amount of such sinking fund payment shall be reduced accordingly.  If as a result of the delivery or  credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such  Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need  not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken,  and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking  fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a  Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying  Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having  an unpaid principal amount equal to the cash payment required to be released to the Company.     Section 11.3.                          Redemption of Securities for Sinking Fund.     Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture  hereto or Officer’s Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date  for any Series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount  of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion  thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by  delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be  added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated  to pay the amount therein specified.  Not less than 30 days (unless otherwise indicated in the Board Resolution,  Officer’s Certificate or supplemental indenture in respect of a particular Series of Securities) before each such  sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment  date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and  at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the  redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.     This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an  original, but all such counterparts shall together constitute but one and the same Indenture.        IN WITNESS WHEREOF, the undersigned being duly authorized, have executed this Indenture on behalf of the  respective parties hereto as of the date first above written.       ALLEGIANT TRAVEL COMPANY,    as Issuer              By:       Name:     Title:   





 






            WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Trustee              By:       Name:      Title: