exv4w3







Exhibit 4.3




 




ORBITZ WORLDWIDE, INC.




as the Company




and




as Trustee




Subordinated Indenture




Dated as of                           , 20     




      





 









 








TABLE OF CONTENTS




 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

	Definitions and Incorporation by Reference

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	8	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	Section 1.04. Rules of Construction
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 2

	The Securities

	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	9	 
	Section 2.02. Execution And Authentication
	 	 	9	 
	Section 2.03. Amount Unlimited; Issuable in Series
	 	 	11	 
	Section 2.04. Denomination and Date of Securities; Payments of Interest
	 	 	14	 
	Section 2.05. Registrar and Paying Agent; Agents Generally
	 	 	15	 
	Section 2.06. Paying Agent to Hold Money in Trust
	 	 	15	 
	Section 2.07. Transfer and Exchange
	 	 	16	 
	Section 2.08. Replacement Securities
	 	 	19	 
	Section 2.09. Outstanding Securities
	 	 	20	 
	Section 2.10. Temporary Securities
	 	 	21	 
	Section 2.11. Cancellation
	 	 	21	 
	Section 2.12. CUSIP Numbers
	 	 	22	 
	Section 2.13. Defaulted Interest
	 	 	22	 
	Section 2.14. Series May Include Tranches
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 3

	Redemption

	 
	 	 	 	 
	Section 3.01. Applicability of Article
	 	 	23	 
	Section 3.02. Notice of Redemption; Partial Redemptions
	 	 	23	 
	Section 3.03. Payment Of Securities Called For Redemption
	 	 	25	 
	Section 3.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption
	 	 	26	 
	Section 3.05. Mandatory and Optional Sinking Funds
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 4

	Covenants

	 
	 	 	 	 
	Section 4.01. Payment of Securities
	 	 	28	 
	Section 4.02. Maintenance of Office or Agency
	 	 	29	 
	Section 4.03. Securityholders’ Lists
	 	 	30	 
	Section 4.04. Certificate to Trustee
	 	 	30	 






i 









 






	 	 	 	 
	 	 	Page	 
	Section 4.05. Reports by the Company
	 	 	30	 
	Section 4.06. Additional Amounts
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Successor Corporation
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. When Company May Merge, Etc
	 	 	31	 
	Section 5.02. Successor Substituted
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Default and Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	32	 
	Section 6.02. Acceleration
	 	 	33	 
	Section 6.03. Other Remedies
	 	 	34	 
	Section 6.04. Waiver of Past Defaults
	 	 	35	 
	Section 6.05. Control by Majority
	 	 	35	 
	Section 6.06. Limitation on Suits
	 	 	35	 
	Section 6.07. Rights of Holders to Receive Payment
	 	 	36	 
	Section 6.08. Collection Suit by Trustee
	 	 	36	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	36	 
	Section 6.10. Application of Proceeds
	 	 	37	 
	Section 6.11. Restoration of Rights and Remedies
	 	 	38	 
	Section 6.12. Undertaking for Costs
	 	 	38	 
	Section 6.13. Rights and Remedies Cumulative
	 	 	38	 
	Section 6.14. Delay or Omission not Waiver
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. General
	 	 	39	 
	Section 7.02. Certain Rights of Trustee
	 	 	39	 
	Section 7.03. Individual Rights of Trustee
	 	 	40	 
	Section 7.04. Trustee’s Disclaimer
	 	 	41	 
	Section 7.05. Notice of Default
	 	 	41	 
	Section 7.06. Reports by Trustee to Holders
	 	 	41	 
	Section 7.07. Compensation and Indemnity
	 	 	42	 
	Section 7.08. Replacement of Trustee
	 	 	43	 
	Section 7.09. Acceptance of Appointment by Successor
	 	 	44	 
	Section 7.10. Successor Trustee By Merger, Etc
	 	 	45	 
	Section 7.11. Eligibility
	 	 	45	 
	Section 7.12. Money Held in Trust
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Satisfaction and Discharge of Indenture; Unclaimed Moneys
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Satisfaction and Discharge of Indenture
	 	 	45	 






ii 









 







	 	 	 	 	 
	 	 	Page	 
	Section 8.02. Application by Trustee of Funds Deposited for
Payment of Securities
	 	 	46	 
	Section 8.03. Repayment of Moneys Held by Paying Agent
	 	 	46	 
	Section 8.04. Return of Moneys
Held by Trustee and Paying Agent Unclaimed for Two Years
	 	 	47	 
	Section 8.05. Defeasance and Discharge of Indenture
	 	 	47	 
	Section 8.06. Defeasance of Certain Obligations
	 	 	49	 
	Section 8.07. Reinstatement
	 	 	50	 
	Section 8.08. Indemnity
	 	 	50	 
	Section 8.09. Excess Funds
	 	 	50	 
	Section 8.10. Qualifying Trustee
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 9

	Amendments, Supplements and Waivers

	 
	 	 	 	 
	Section 9.01. Without Consent of Holders
	 	 	51	 
	Section 9.02. With Consent of Holders
	 	 	52	 
	Section 9.03. Revocation and Effect of Consent
	 	 	53	 
	Section 9.04. Notation on or Exchange of Securities
	 	 	53	 
	Section 9.05. Trustee to Sign Amendments, Etc
	 	 	53	 
	Section 9.06. Conformity with Trust Indenture Act
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 10

	Miscellaneous

	 
	 	 	 	 
	Section 10.01. Trust Indenture Act of 1939
	 	 	54	 
	Section 10.02. Notices
	 	 	54	 
	Section 10.03. Certificate and Opinion as to Conditions Precedent
	 	 	55	 
	Section 10.04. Statements Required in Certificate or Opinion
	 	 	55	 
	Section 10.05. Evidence of Ownership
	 	 	56	 
	Section 10.06. Rules by Trustee, Paying Agent or Registrar
	 	 	57	 
	Section 10.07. Payment Date Other Than a Business Day
	 	 	57	 
	Section 10.08. Governing Law
	 	 	57	 
	Section 10.09. No Adverse Interpretation of Other Agreements
	 	 	57	 
	Section 10.10. Successors
	 	 	57	 
	Section 10.11. Duplicate Originals
	 	 	57	 
	Section 10.12. Separability
	 	 	57	 
	Section 10.13. Table of Contents, Headings, Etc
	 	 	57	 
	Section 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability
	 	 	58	 
	Section 10.15. Judgment Currency
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 11

	Subordination of Securities

	 
	 	 	 	 
	Section 11.01. Agreement to Subordinate
	 	 	59	 






iii 









 






	 	 	 	 	 
	 	 	Page	 
	Section 11.02. Payments to Securityholders
	 	 	59	 
	Section 11.03. Subrogation of Securities
	 	 	61	 
	Section 11.04. Authorization by Securityholders
	 	 	62	 
	Section 11.05. Notice to Trustee
	 	 	62	 
	Section 11.06. Trustee’s Relation to Senior Indebtedness
	 	 	63	 
	Section 11.07. No Impairment of Subordination
	 	 	63	 






iv 









 





     SUBORDINATED INDENTURE, dated as of _________ ___, 200___, between Orbitz Worldwide, Inc., a
Delaware corporation, as the Company, and      , as Trustee.



RECITALS OF THE COMPANY




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



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



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities or of any and all series thereof and of
the coupons, if any, appertaining thereto as follows:



ARTICLE 1

Definitions and Incorporation by Reference




     Section 1.01. Definitions.



     “Affiliate” of any Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person. For the purposes of
this definition, “control” (including, with correlative meanings, the terms “controlling”,
“controlled by” and “under common control with”) when used with respect to any Person means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities, by contract or
otherwise.



     “Agent” means any Registrar, Paying Agent, transfer agent or Authenticating Agent.



     “Authorized Newspaper” means a newspaper (which, in the case of The City of New York, will, if
practicable, be The Wall Street Journal (Eastern Edition) and in the case of London, will, if
practicable, be the Financial Times (London Edition) and published in an official language of the
country of



 









 







publication customarily published at least once a day for at least five days in each calendar
week and of general circulation in The City of New York or London, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given
with the approval of the Trustee shall constitute a sufficient publication of such notice.



     “Bank Credit Agreement” means each of (i) the Term Loan Credit Agreement, as such Agreement
has been and may be amended, restated, supplemented or otherwise modified from time to time, and
(ii) the Revolving Credit Agreement, as such Agreement has been and may be amended, restated,
supplemented or otherwise modified from time to time, and includes any agreement extending the
maturity of, or restructuring (including, but not limited to, the inclusion of additional borrowers
thereunder that are Subsidiaries of the Company and whose obligations are guaranteed by the Company
thereunder) all or any portion of, the Debt under such Agreements or any successor agreements and
includes any agreement with one or more banks or other lending institutions refinancing all or any
portion of the Debt under such Agreement or any successor agreements.



     “Board Resolution” means one or more resolutions of the board of directors of the Company or
any authorized committee thereof, certified by the secretary or an assistant secretary to have been
duly adopted and to be in full force and effect on the date of certification, and delivered to the
Trustee.



     “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions are authorized or required by law or regulation to close in
The City of New York, with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United States dollars, in the principal
financial center of the country of the specified currency.



     “Capital Lease” means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of such Person.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



     “Company” means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 5 of this Indenture and thereafter means the successor.



2









 





     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be administered, which office is, at the date of this
Indenture, located at [     ] Attention: [     ].



     “Currency Agreement” means, with respect to any Person, any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to protect such Person
or any of its Subsidiaries against fluctuations in currency values to or under which such Person or
any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a
beneficiary thereafter.



     “Debt” means, with respect to any Person at any date of determination (without duplication),
(i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or bankers’ acceptance or other similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations of such Person to pay the
deferred purchase price of property or services, except Trade Payables, (v) all obligations of such
Person as lessee under Capital Leases, (vi) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person; provided that, for purposes of
determining the amount of any Debt of the type described in this clause, if recourse with respect
to such Debt is limited to such asset, the amount of such Debt shall be limited to the lesser of
the fair market value of such asset or the amount of such Debt, (vii) all Debt of others Guaranteed
by such Person to the extent such Debt is Guaranteed by such Person, (viii) all redeemable stock
valued at the greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends and (ix) to the extent not otherwise included in this definition, all obligations
of such Person under Currency Agreements and Interest Rate Agreements.



     “Default” means any event that 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 the
form of one or more Registered Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each
Person who is then a Depositary hereunder, and if at any time there is more than one such Person,
“Depositary” as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.



     “Designated Senior Indebtedness” means (i) Debt under the Bank Credit Agreements and (ii) Debt
constituting Senior Indebtedness which, at the time of its determination, (A) has an aggregate
principal amount of at least $[     ]



3









 







million and (B) is specifically designated in the instrument evidencing such Senior
Indebtedness as “Designated Senior Indebtedness” by the Company.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “GAAP” means generally accepted accounting principles in the U.S. as in effect as of the date
hereof applied on a basis consistent with the principles, methods, procedures and practices
employed in the preparation of the Company’s audited financial statements, including, without
limitation, those 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 is
approved by a significant segment of the accounting profession.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
or other obligation of such other Person (whether arising by virtue of partnership arrangements, or
by agreement to keepwell, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part); provided that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning.



     “Holder” or “Securityholder” means the registered holder of any Security with respect to
Registered Securities and the bearer of any Unregistered Security or any coupon appertaining
thereto, as the case may be.



     “Indenture” means this Indenture as originally executed and delivered or as it may be amended
or supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.



     “Interest Rate Agreement” means, with respect to any Person, any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates to or under which such Person or



4









 







any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a
beneficiary thereafter.



     “Lien” means, with respect to any property, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such property. For purposes of this Indenture,
the Company shall be deemed to own subject to a Lien any property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such property.



     “Officer” means, with respect to the Company, the chairman of the board of directors, the
president or chief executive officer, any executive vice president, any senior vice president, any
vice president, the chief financial officer, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.



     “Officers’ Certificate” means a certificate signed in the name of the Company (i) by the
chairman of the board of directors, the president or chief executive officer, an executive vice
president, a senior vice president or a vice president and (ii) by the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant secretary, and delivered to
the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act, if
applicable, and include (except as otherwise expressly provided in this Indenture) the statements
provided in Section 10.04, if applicable.



     “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company, satisfactory to the Trustee. Each such opinion shall comply with
Section 314 of the Trust Indenture Act, if applicable, and include the statements provided in
Section 10.04, if and to the extent required thereby.



     “original issue date” of any Security (or portion thereof) means the earlier of (a) the date
of authentication of such Security or (b) the date of any Security (or portion thereof) for which
such Security was issued (directly or indirectly) on registration of transfer, exchange or
substitution.



     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.02.



     “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.



     “Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity or organization,



5









 







including a government or political subdivision or an agency or instrumentality thereof.



     “Principal” of a Security means the principal amount of, and, unless the context indicates
otherwise, includes any premium payable on, the Security.



     “Registered Global Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.02.



     “Registered Security” means any Security registered on the Security Register (as defined in
Section 2.05).



     “Responsible Officer” when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the particular subject.



     “Revolving Credit Agreement” means the Revolving Credit Agreement, dated May 31, 2007, among
the Company, Bank of America, N.A., as administrative agent, swing line lender and L/C issuer, and
the lenders party thereto.



     “Securities” means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture and, unless the context indicates
otherwise, shall include any coupon appertaining thereto.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Senior Indebtedness” means the principal of (and premium, if any) and interest on all Debt of
the Company whether created, incurred or assumed before, on or after the date of this Indenture;
provided that such Senior Indebtedness shall not include (i) Debt of the Company that, when
incurred and without respect to any election under Section 1111(b) of Title 11, U.S. Code, was
without recourse, (ii) any other Debt of the Company which by the terms of the instrument creating
or evidencing the same are specifically designated as not being senior in right of payment to the
Securities, and in particular the Securities shall rank pari passu with all other debt securities
and guarantees issued to any trust, partnership or other entity affiliated with the Company which
is a financing vehicle of the Company in connection with an issuance of preferred securities by
such financing entity and (iii) redeemable stock of the Company.



     “Subsidiary” means, with respect to any Person, any corporation, association or other business
entity of which a majority of the capital stock or other ownership interests having ordinary voting
power to elect a majority of the



6









 







board of directors or other persons performing similar functions are at the time directly or
indirectly owned by such Person.



     “Term Loan Agreement” means the Term Loan Credit Agreement, dated May 31, 2007, among the
Company, Bank of America, N.A., as administrative agent, and the lenders party thereto.



     “Trade Payables” means, with respect to any Person, any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such
Person or any of its Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.



     “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article 7 and thereafter 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 the Trustee with
respect to Securities of that series.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§
77aaa-77bbbb), as it may be amended from time to time.



     “Unregistered Security” means any Security other than a Registered Security.



     “U.S. Government Obligations” means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America,
and shall also include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific payment of
interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.



     “Yield to Maturity” means, as the context may require, the yield to maturity (i) on a series
of Securities or (ii) if the Securities of a series are issuable from time to time, on a Security
of such series, calculated at the time of issuance of such series in the case of clause (i) or at
the time of issuance of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent



7









 







redetermination of interest on such series or on such Security, and calculated in accordance
with the constant interest method or such other accepted financial practice as is specified in the
terms of such Security.



     Section 1.02. Other Definitions. Each of the following terms is defined in the
section set forth opposite such term:



	 	 	 	 	 
	Term	 	Section
	Authenticating Agent
	 	 	2.02	 
	Cash Transaction
	 	 	7.03	 
	Dollars
	 	 	4.02	 
	Event of Default
	 	 	6.01	 
	Judgment Currency
	 	 	10.15	(a)
	mandatory sinking fund payment
	 	 	3.05	 
	optional sinking fund payment
	 	 	3.05	 
	Paying Agent
	 	 	2.05	 
	Payment Blockage Period
	 	 	11.02	 
	record date
	 	 	2.04	 
	Registrar
	 	 	2.05	 
	Required Currency
	 	 	10.15	(a)
	Security Register
	 	 	2.05	 
	self-liquidating paper
	 	 	7.03	 
	sinking fund payment date
	 	 	3.05	 
	tranche
	 	 	2.14	 






     Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by
reference in and made a part of this Indenture. The following terms used in this Indenture that
are defined by the Trust Indenture Act have the following meanings:



     “indenture securities” means the Securities;



     “indenture security holder” means a Holder or a Securityholder;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



     “obligor” on the indenture securities means the Company or any other obligor on the
Securities.



     All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
reference in the Trust Indenture Act to another statute or defined by a rule of the Commission and
not otherwise defined herein have the meanings assigned to them therein.



8









 





     Section 1.04. Rules of Construction. Unless the context otherwise requires:




     (a) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;




     (b) words in the singular include the plural, and words in the plural include
the singular;




     (c) “herein,” “hereof” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision;




     (d) all references to Sections or Articles refer to Sections or Articles of
this Indenture unless otherwise indicated; and




     (e) use of masculine, feminine or neuter pronouns should not be deemed a
limitation, and the use of any such pronouns should be construed to include, where
appropriate, the other pronouns.



ARTICLE 2

The Securities




     Section 2.01. Form and Dating. The Securities of each series shall be substantially
in such form or forms (not inconsistent with this Indenture) as shall be established by or pursuant
to one or more Board Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required
to comply with any law, or with any rules of any securities exchange or usage, all as may be
determined by the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have coupons attached.



     Section 2.02. Execution And Authentication. Two Officers shall execute the
Securities and one Officer shall execute the coupons appertaining thereto for the Company by
facsimile or manual signature in the name and on behalf of the Company. The seal of the Company,
if any, shall be reproduced on the Securities. If an Officer whose signature is on a Security or
coupon appertaining thereto no longer holds that office at the time the Security is authenticated,
the Security and such coupon shall nevertheless be valid.



     The Trustee, at the expense of the Company, may appoint an authenticating agent (the
“Authenticating Agent”) to authenticate Securities. The Authenticating Agent may authenticate
Securities whenever the Trustee may



9









 







do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent.



     A Security and the coupons appertaining thereto shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the Security or on the
Security to which such coupon appertains by an authorized officer. The signature shall be
conclusive evidence that the Security or the Security to which the coupon appertains has been
authenticated under this Indenture.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series having attached thereto appropriate coupons, if any,
executed by the Company to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any Securities of a
series, the Trustee shall be entitled to receive prior to the authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:




     (a) any Board Resolution and/or executed supplemental indenture referred to
in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities of
that series were established;




     (b) an Officers’ Certificate setting forth the form or forms and terms of the
Securities, stating that the form or forms and terms of the Securities of such series have
been, or, in the case of a Periodic Offering, will be when established in accordance with
such procedures as shall be referred to therein, established in compliance with this
Indenture; and




     (c) an Opinion of Counsel substantially to the effect that the form or forms
and terms of the Securities of such series have been, or, in the case of a Periodic
Offering, will be when established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized and, if
executed and authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors’ rights generally, general
principles of equity, and covering such other matters as shall be specified therein and as
shall be reasonably requested by the Trustee.



10









 





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



     Notwithstanding the provisions of Sections 2.01 and 2.02, if, in connection with a Periodic
Offering, all Securities of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the
written order, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Section
2.02 at or prior to the authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first Security of such
series to be issued.



     With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, the forms and terms thereof and
the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and
the other documents delivered pursuant to Sections 2.01 and 2.02, as applicable, in connection with
the first authentication of Securities of such series.



     If the Company shall establish pursuant to Section 2.03 that the Securities of a series or a
portion thereof are to be issued in the form of one or more Registered Global Securities, then the
Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued in such form and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or its custodian or pursuant to such Depositary’s instructions and (iv) shall bear a
legend substantially to the following effect: “Unless and until it is exchanged in whole or in
part for Securities in definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or 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 successor Depositary.”



     Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more series and shall be subordinated to the Senior
Indebtedness pursuant to the provisions of Article 11 hereof. There shall be established in or
pursuant to Board Resolution or one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series, subject to the last sentence of this Section 2.03,



11









 





     (a) the designation of the Securities of the series, which shall distinguish the
Securities of the series from the Securities of all other series;



     (b) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture and any limitation on the ability of the
Company to increase such aggregate principal amount after the initial issuance of the Securities of
that series (except for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, or upon redemption of, other Securities of the series pursuant
hereto);



     (c) the date or dates on which the principal of the Securities of the series is
payable (which date or dates may be fixed or extendible);



     (d) the rate or rates (which may be fixed or variable) per annum at which the
Securities of the series shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case of Registered Securities) on
which a record shall be taken for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be determined;



     (e) if other than as provided in Section 4.02, the place or places where the principal
of and any interest on Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to Holders may be published;



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



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



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



     (i) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof;



12









 





     (j) if other than the coin or currency in which the Securities of the series are
denominated, the coin or currency in which payment of the principal of or interest on the
Securities of the series shall be payable or if the amount of payments of principal of and/or
interest on the Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are denominated, the manner
in which such amounts shall be determined;



     (k) if other than the currency of the United States of America, the currency or
currencies, including composite currencies, in which payment of the Principal of and interest on
the Securities of the series shall be payable, and the manner in which any such currencies shall be
valued against other currencies in which any other Securities shall be payable;



     (l) whether the Securities of the series or any portion thereof will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as Registered Global
Securities) or Unregistered Securities (with or without coupons) (and if so, whether such
Securities will be issued in temporary or permanent global form), or any combination of the
foregoing, any restrictions applicable to the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered Securities of such series and
vice versa;



     (m) whether the Securities of the series may be exchangeable for and/or convertible
into the common stock of the Company or any other security;



     (n) whether and under what circumstances the Company will pay additional amounts on
the Securities of the series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional amounts;



     (o) if the Securities of the series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;



     (p) any trustees, depositaries, authenticating or paying agents, transfer agents or
the registrar or any other agents with respect to the Securities of the series;



     (q) provisions, if any, for the defeasance of the Securities of the series (including
provisions permitting defeasance of less than all Securities of the series), which provisions may
be in addition to, in substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;



13









 





     (r) if the Securities of the series are issuable in whole or in part as one or more
Registered Global Securities or Unregistered Securities in global form, the identity of the
Depositary or common Depositary for such Registered Global Security or Securities or Unregistered
Securities in global form;



     (s) any other Events of Default or covenants with respect to the Securities of the
series; and



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



     All Securities of any one series and coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to date and denomination,
except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant
to the Board Resolution referred to above or as set forth in any such indenture supplemental
hereto. 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
such Board Resolution or in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established from time to time prior
to the issuance thereof by procedures described in such Board Resolution or supplemental indenture.



     Unless otherwise expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized with respect to such
series as increased.



     Section 2.04. Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the Officers of the Company executing the same may determine, as
evidenced by their execution thereof.



     Unless otherwise specified with respect to a series of Securities, each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any,
from the date, and such interest and shall be payable on the dates, established as contemplated by
Section 2.03.



     The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record



14









 







date and prior to such interest payment date, except if and to the extent the Company shall
default in the payment of the interest due on such interest payment date for such series, in which
case the provisions of Section 2.13 shall apply. The term “record date” as used with respect to
any interest payment date (except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the Registered Securities of such
series established as contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such record date is a
Business Day.



     Section 2.05. Registrar and Paying Agent; Agents Generally. The Company shall
maintain an office or agency where Securities may be presented for registration, registration of
transfer or for exchange (the “Registrar”) and an office or agency where Securities may be
presented for payment (the “Paying Agent”), which shall be in the Borough of Manhattan, The City of
New York. The Company shall cause the Registrar to keep a register of the Registered Securities
and of their registration, transfer and exchange (the “Security Register”). The Company may have
one or more additional Paying Agents or transfer agents with respect to any series.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The
Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no
such removal shall become effective until (i) the acceptance of an appointment by a successor Agent
to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i)
of this proviso. The Company or any affiliate of the Company may act as Paying Agent or Registrar;
provided that neither the Company nor an affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this Indenture under Article
8.



     The Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee ten days prior to each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in the Security Register.



     Section 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New
York City time on each due date or, in the case of Unregistered Securities, 10:00 a.m. New York
City time on the Business Day prior to the due



15









 







date, of any Principal or interest on any Securities, the Company shall deposit with the
Paying Agent money in immediately available funds sufficient to pay such Principal or interest.
The Company shall require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Holders of such Securities or the Trustee
all money held by the Paying Agent for the payment of Principal of and interest on such Securities
and shall promptly notify the Trustee of any default by the Company in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed, and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If the Company or any
affiliate of the Company acts as Paying Agent, it will, on or before each due date of any Principal
of or interest on any Securities, segregate and hold in a separate trust fund for the benefit of
the Holders thereof a sum of money sufficient to pay such Principal or interest so becoming due
until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee in writing of its action or failure to act as
required by this Section.



     Section 2.07. Transfer and Exchange. Unregistered Securities (except for any
temporary global Unregistered Securities) and coupons (except for coupons attached to any temporary
global Unregistered Securities) shall be transferable by delivery.



     At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Securities
of any series may be exchanged for Registered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination, except as otherwise
established pursuant to Section 2.03, such Unregistered



16









 







Securities may be exchanged for Unregistered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall be maintained for
such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.



     Upon surrender for registration of transfer of any Registered Security of a series at the
agency of the Company that shall be maintained for that purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount.



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



     The Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.



     Notwithstanding any other provision of this Section 2.07, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.



     If at any time the Depositary for any Registered Global Securities of any series notifies the
Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer
be eligible under applicable law, the Company shall appoint a successor Depositary eligible under
applicable law with respect to such Registered Global Securities. If a successor Depositary
eligible under applicable law for such Registered Global Securities is not



17









 







appointed by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company’s order for the authentication and delivery of definitive Registered Securities of such
series and tenor, will authenticate and deliver Registered Securities of such series and tenor, in
any authorized denominations, in an aggregate principal amount equal to the principal amount of
such Registered Global Securities, in exchange for such Registered Global Securities.



     The Company may at any time and in its sole discretion and subject to the procedures of the
Depositary determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the Trustee, upon receipt
of the Company’s order for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and deliver, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal to the principal
amount of such Registered Global Securities, in exchange for such Registered Global Securities.



     Any time the Registered Securities of any series are not in the form of Registered Global
Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with
a reasonable supply of certificated Registered Securities without the legend required by Section
2.02 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated
and delivered pursuant to the terms of this Indenture.



     If established by the Company pursuant to Section 2.03 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,




     (a) to the Person specified by such Depositary new Registered Securities of
the same series and tenor, of any authorized denominations as requested by such Person, in
an aggregate principal amount equal to and in exchange for such Person’s beneficial
interest in the Registered Global Security; and




     (b) to such Depositary a new Registered Global Security in a denomination
equal to the difference, if any, between the principal amount of the surrendered
Registered Global Security and the aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (a) above.



18









 





     Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.07 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons
in whose names such Securities are so registered.



     All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.



     Notwithstanding anything herein or in the forms or terms of any Securities to the contrary,
none of the Company, the Trustee or any agent of the Company or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Company (such as, for example, the inability of the
Company to deduct from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United States Federal income tax
laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an
Opinion of Counsel in determining such result.



     The Registrar shall not be required (i) to issue, authenticate, register the transfer of or
exchange Securities of any series for a period of 15 days before a selection of such Securities to
be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in
whole or in part.



     Section 2.08. Replacement Securities. If any mutilated Security or a Security with
a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange
for the Security to which a mutilated coupon appertains, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.



     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 or coupon and (ii) such security or indemnity as
may be required by them to save each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same



19









 







series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon
appertains.



     In case any such mutilated, destroyed, lost or stolen Security or coupon 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 or coupon (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and any agent of any of
them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee and any agent of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that the Principal of and any interest on Unregistered
Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or
agency located outside the United States of America.



     Upon the issuance of any new Security under this Section, the Company may require 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, with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.



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



     Section 2.09. Outstanding Securities. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those described in this Section as not outstanding and those that
have been defeased pursuant to Section 8.05.



     If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.



20









 





     If the Paying Agent (other than the Company or an affiliate of the Company) holds on the
maturity date or any redemption date or date for repurchase of the Securities money sufficient to
pay Securities payable or to be redeemed or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to accrue.



     A Security does not cease to be outstanding because the Company or one of its affiliates holds
such Security, provided, however, that, in determining whether the Holders of the requisite
principal amount of the outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the
Trustee has received written notice to be so owned shall be so disregarded. Any Securities so
owned which are pledged by the Company, or by any affiliate of the Company, as security for loans
or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to
be outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is
free to exercise in its or his discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.



     Section 2.10. Temporary Securities. Until definitive Securities of any series are
ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities
of such series. Temporary Securities of any series shall be substantially in the form of
definitive Securities of such series but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the temporary Securities, as
evidenced by their execution of such temporary Securities. If temporary Securities of any series
are issued, the Company will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any series, the temporary
Securities of such series shall be exchangeable for definitive Securities of such series and tenor
upon surrender of such temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series and tenor and authorized denominations. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits under this Indenture
as definitive Securities of such series.



     Section 2.11. Cancellation. The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar, any



21









 







transfer agent and the Paying Agent shall forward to the Trustee any Securities surrendered to
them for transfer, exchange or payment. The Trustee shall cancel and dispose of in accordance with
its customary procedures all Securities surrendered for transfer, exchange, payment or cancellation
and shall deliver a certificate of disposition to the Company. The Company may not issue new
Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.



     Section 2.12. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
and “CINS” numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS
numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and
no representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.



     Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest
on the Registered Securities, it shall pay, or shall deposit with the Paying Agent money in
immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days before such
special record date, the Company shall mail to each Holder of such Registered Securities and to the
Trustee a notice that states the special record date, the payment date and the amount of defaulted
interest to be paid.



     Section 2.14. Series May Include Tranches. A series of Securities may include one
or more tranches (each a “tranche”) of Securities, including Securities issued in a Periodic
Offering. The Securities of different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within each such tranche
shall have identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections 2.02 (other than
the fourth, sixth and seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through
3.05, 4.02, 6.01 through 6.14, 8.01 through 8.07, 9.02 and Section 10.07, if any series of
Securities includes more than one tranche, all provisions of such sections applicable to any series
of Securities shall be deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided with respect to such
series or tranche pursuant to Section 2.03. In particular, and without limiting the scope of the
next preceding sentence, any of the provisions of such sections which provide for or permit action
to be taken with respect to a series of Securities shall also be deemed to provide for and permit
such action to be taken instead only with respect to Securities of one or more tranches within that
series (and such provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.



22









 





ARTICLE 3

Redemption




     Section 3.01. Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.



     Section 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to
the Holders of Registered Securities of any series to be redeemed as a whole or in part at the
option of the Company shall be given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last addresses as they shall
appear upon the registry books. Notice of redemption to the Holders of Unregistered Securities of
any series to be redeemed as a whole or in part who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice
of such redemption, by first class mail, postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption, to such Holders at such addresses as were so furnished
to the Trustee (and, in the case of any such notice given by the Company, the Trustee shall make
such information available to the Company for such purpose). Notice of redemption to all other
Holders of Unregistered Securities of any series to be redeemed as a whole or in part shall be
published in an Authorized Newspaper in The City of New York, or with respect to any Security the
interest on which is based on the offered quotations in the interbank Eurodollar market for dollar
deposits in an Authorized Newspaper in London, in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 days nor more than 60 days prior to
the date fixed for redemption. Any notice which is mailed or published in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives
the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.



     The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to
be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the
manner of calculation thereof, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities with coupons attached
thereto, of all coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after



23









 







said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or Securities of such
series and tenor in principal amount equal to the unredeemed portion thereof will be issued.



     The notice of redemption of Securities of any series to be redeemed at the option of the
Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and
at the expense of the Company.



     On or before 10:00 a.m. New York City time on the redemption date or, in the case of
Unregistered Securities, on or before 10:00 a.m. New York City time on the Business Day prior to
the redemption date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.06)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If all of the outstanding Securities of a series are to be redeemed,
the Company will deliver to the Trustee at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or such
shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating that all
such Securities are to be redeemed. If less than all the outstanding Securities of a series are to
be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.02 (or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate
stating the aggregate principal amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such Securities or elsewhere
in this Indenture, the Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing compliance
with such restriction or condition.



     If less than all the Securities of a series are to be redeemed, the Trustee shall select, pro
rata, by lot or in such manner as it shall deem appropriate and fair, Securities of such series to
be redeemed in whole or in part. Securities may be redeemed in part in principal amounts equal to
authorized denominations for Securities of such series. The Trustee shall promptly notify the
Company in writing of the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall



24









 







relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.



     Section 3.03. Payment Of Securities Called For Redemption. If notice of redemption
has been given as above provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
such date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to such date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.12 and 8.02, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of payment specified in
said notice, together with all coupons, if any, appertaining thereto maturing after the date fixed
for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with coupons attached thereto, to the
Holders of the coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.04 and 2.13 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.



     If any Security with coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant coupons maturing after the date fixed for redemption, the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.



     Upon presentation of any Security of any series redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at
the expense of the Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.



25









 





     Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed by an authorized
officer of the Company and delivered to the Trustee at least 40 days prior to the last date on
which notice of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company.



     Section 3.05. Mandatory and Optional Sinking Funds. The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for
by the terms of the Securities of any series is herein referred to as an “optional sinking fund
payment”. The date on which a sinking fund payment is to be made is herein referred to as the
“sinking fund payment date”.



     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Company at the
option of the Company pursuant to the terms of such Securities or through any optional sinking fund
payment. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.



     On or before the sixtieth day next preceding each sinking fund payment date for any series, or
such shorter period as shall be acceptable to the Trustee, the Company will deliver to the Trustee
an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of specified Securities of
such series and the basis for such credit, (b) stating that none of the specified Securities of
such series has theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled to credit therefor
as aforesaid which have not theretofore been



26









 







delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the
Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the
Company shall become unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such sixtieth day, to deliver such Officer’s Certificate
and Securities specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Company will make no optional sinking fund payment with respect to such
series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking fund redemption
price thereof together with accrued interest thereon to the date fixed for redemption. If such
amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The
Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers’ Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in
such Officers’ Certificate as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier,



27









 







if such maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the Principal of, and interest on, the Securities of
such series at maturity.



     On or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case
of Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the sinking
fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on
the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such Default or Event of Default, be deemed to have been collected under Article
6 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.04 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.



ARTICLE 4

Covenants




     Section 4.01. Payment of Securities. The Company shall pay the Principal of and
interest on the Securities on the dates and in the manner provided in the Securities and this
Indenture. The interest on Securities with coupons attached (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced thereby as they
severally mature. The interest on any temporary Unregistered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be paid, as to the
installments of interest evidenced by coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such interest. The interest on
Registered Securities (together with any additional amounts payable pursuant to



28









 







the terms of such Securities) shall be payable only to the Holders thereof (subject to Section
2.04) and at the option of the Company may be paid by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they appear on the Security
Register of the Company.



     Notwithstanding any provisions of this Indenture and the Securities of any series to the
contrary, if the Company and a Holder of any Registered Security so agree, payments of interest on,
and any portion of the Principal of, such Holder’s Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 A.M., New York City time (or such other time as may be agreed to between the Company
and the Paying Agent), directly to the Holder of such Security (by Federal funds wire transfer or
otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to such
payment date requesting that such payment will be so made and designating the bank account to which
such payments shall be so made and in the case of payments of Principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same principal amount as the
unredeemed principal amount of the Securities surrendered. The Trustee shall be entitled to rely
on the last instruction delivered by the Holder pursuant to this Section 4.01 unless a new
instruction is delivered 15 days prior to a payment date. The Company will indemnify and hold each
of the Trustee and any Paying Agent harmless against any loss, liability or expense (including
attorneys’ fees) resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in accordance with any such
agreement.



     The Company shall pay interest on overdue Principal, and interest on overdue installments of
interest, to the extent lawful, at the rate per annum specified in the Securities.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain in the
United States of America an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The Company hereby
initially designates the [          ], located in [          ], as such office or agency of the Company. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in
Section 10.02.



     The Company will maintain one or more agencies in a city or cities located outside the United
States of America (including any city in which such an agency is required to be maintained under
the rules of any stock exchange on



29









 







which the Securities of any series are listed) where the Unregistered Securities, if any, of
each series and coupons, if any, appertaining thereto may be presented for payment. No payment on
any Unregistered Security or coupon will be made upon presentation of such Unregistered Security or
coupon at an agency of the Company within the United States of America nor will any payment be made
by transfer to an account in, or by mail to an address in, the United States of America unless,
pursuant to applicable United States of America laws and regulations then in effect, such payment
can be made without adverse tax consequences to the Company. Notwithstanding the foregoing, if
full payment in United States Dollars (“Dollars”) at each agency maintained by the Company outside
the United States of America for payment on such Unregistered Securities or coupons appertaining
thereto is illegal or effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons appertaining thereto which
are payable in Dollars may be made at an agency of the Company maintained in the United States of
America.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of any series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in the United
States of America for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such other office or
agency.



     Section 4.03. Securityholders’ Lists. The Company will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and
addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the payment of semi-annual
interest on the Securities, as hereinabove specified, as of such record date, and (b) at such other
times as the Trustee may request in writing, within thirty days after receipt by the Company of any
such request as of a date not more than 15 days prior to the time such information is furnished.



     Section 4.04. Certificate to Trustee. The Company will furnish to the Trustee
annually, on or before a date not more than four months after the end of its fiscal year (which, on
the date hereof, is a calendar year), a brief certificate (which need not contain the statements
required by Section 10.04) from its principal executive, financial or accounting officer as to his
or her knowledge of the compliance of the Company with all conditions and covenants under this
Indenture (such compliance to be determined without regard to any period of grace or requirement of
notice provided under this Indenture) which certificate shall comply with the requirements of the
Trust Indenture Act.



     Section 4.05. Reports by the Company. The Company covenants to file with the
Trustee, within 15 days after the Company files the same with the



30









 







Commission, copies of the annual reports and of the information, documents, and other reports
which the Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act.



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



     Whenever in this Indenture there is mentioned, in any context, the payment of the Principal of
or interest or any other amounts on, or in respect of, any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant to such terms, and express
mention of the payment of additional amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of additional amounts in those provisions hereof where such
express mention is not made.



ARTICLE 5

Successor Corporation




     Section 5.01. When Company May Merge, Etc. The Company shall not consolidate with,
merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets (in one transaction or a series of related transactions) to, any
Person unless either (x) the Company shall be the continuing Person or (y) the Person (if other
than the Company) formed by




31











 




such consolidation or into which the Company is merged or to which
properties and assets of the Company shall be sold, conveyed, transferred or leased shall be a
Person organized and validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on all of the Securities and under
this Indenture and the Company in the case of clauses (x) and (y) shall have delivered to the
Trustee (A) an Opinion of Counsel stating that such consolidation, merger or sale, conveyance,
transfer or lease and such supplemental indenture (if any) complies with this provision and that
all conditions precedent provided for herein relating to such transaction have been complied with
and that such supplemental indenture (if any) constitutes the legal, valid and binding obligation
of the Company and such successor enforceable against such entity in accordance with its terms,
subject to customary exceptions and (B) an Officers’ Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred and be continuing.




     Section 5.02. Successor Substituted. Upon any consolidation or merger, or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of the property and
assets of the Company in accordance with Section 5.01 of this Indenture, the successor Person
formed by such consolidation or into which the Company is merged or to which such sale, conveyance,
transfer, lease 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 had been named as the Company herein and thereafter the predecessor Person, except
in the case of a lease, shall be relieved of all obligations and covenants under this Indenture and
the Securities.



ARTICLE 6

Default and Remedies




     Section 6.01. Events of Default. An “Event of Default” shall occur with respect to
the Securities of any series if:



     (a) the Company defaults in the payment of the Principal of any Security of such
series when the same becomes due and payable at maturity, upon
acceleration, redemption or mandatory repurchase, including as a sinking fund installment, or
otherwise;



     (b) the Company defaults in the payment of interest on any Security of such series
when the same becomes due and payable, and such default continues for a period of 30 days;



     (c) the Company defaults in the performance of or breaches any other covenant or
agreement of the Company in this Indenture with respect to any Security of such series or in the
Securities of such series and such default or



32









 







breach continues for a period of 30 consecutive days
after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders
of 25% or more in aggregate principal amount of the Securities of all series affected thereby
specifying such default or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder;



     (d) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part
of its property or ordering the winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days;



     (e) the Company (i) commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consents to the entry of an order
for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or for all or substantially all of the property and assets of the Company
or (iii) effects any general assignment for the benefit of creditors; or



     (f) any other Event of Default established pursuant to Section 2.03 with respect to
the Securities of such series occurs.



     Section 6.02. Acceleration. (a) If an Event of Default other than as described in
clauses (d) or (e) of Section 6.01 with respect to the Securities of any series then outstanding
occurs and is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Securities of any such series
then outstanding hereunder (all such series voting together as a single class) by notice in writing
to the Company (and to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such series established pursuant to
Section 2.03) of all Securities of such series,
and the interest accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.



     (b) If an Event of Default described in clause (d) or (e) of Section 6.01 occurs and
is continuing, then the principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms thereof established
pursuant to Section 2.03) of all the Securities then outstanding and interest accrued thereon, if
any, shall be and become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.



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     The foregoing provisions, however, are subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to Section 2.03) of the
Securities of any series (or of all the Securities, as the case may be) shall have been so declared
or become due and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of each such series (or of all the Securities, as the case may be) and the principal of
any and all Securities of each such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of each such series to the date of such
payment or deposit) and such amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.07, and if any and all Events of Default under the Indenture, other than the
non-payment of the principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the then outstanding Securities of all
such series that have been accelerated (voting as a single class), by written notice to the Company
and to the Trustee, may waive all defaults with respect to all such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.



     For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared or become due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.



     Section 6.03. Other Remedies. If a payment default or an Event of Default with
respect to the Securities of any series occurs and is continuing, the Trustee may pursue, in its
own name or as trustee of an express trust, any available remedy by proceeding at law or in equity
to collect the payment of Principal of and interest on the Securities of such series or to enforce
the performance of any provision of the Securities of such series or this Indenture.



34









 





     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding.



     Section 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and 9.02, the
Holders of at least a majority in principal amount (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as is then accelerable under Section 6.02) of
the outstanding Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or interest on any
Security as specified in clauses (a) or (b) of Section 6.01 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the consent of the Holder
of each outstanding Security affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right consequent thereto.



     Section 6.05. Control by Majority. Subject to Sections 7.01 and 7.02(e), the Holders
of at least a majority in aggregate principal amount (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as is then accelerable under Section 6.02) of
the outstanding Securities of all series affected (voting as a single class) may 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 by this
Indenture; provided, that the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability or that the Trustee determines
in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further, that the Trustee may take any other action it deems proper that is
not inconsistent with any directions received from Holders of Securities pursuant to this Section
6.05.



     Section 6.06. Limitation on Suits. No Holder of any Security of any series may
institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:




     (a) such Holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of such series;




     (b) the Holders of at least 25% in aggregate principal amount of outstanding
Securities of all such series affected 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;



35









 






     (c) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to the Trustee against any costs, liabilities or expenses to be incurred in
compliance with such request;




     (d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and




     (e) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series have not given
the Trustee a direction that is inconsistent with such written request.



     A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.



     Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive payment of Principal
of or interest, if any, on such Holder’s Security on or after the respective due dates expressed on
such Security, or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.



     Section 6.08. Collection Suit by Trustee. If an Event of Default with respect to the
Securities of any series in payment of Principal or interest specified in clause (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.03 of Original Issue Discount Securities)
of Principal of, and accrued interest remaining unpaid on, together with interest on overdue
Principal of, and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in such Securities, and such
further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07.



     Section 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for amounts due the Trustee under Section 7.07) and the Holders
allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any moneys, securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon 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



36









 







that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it under Section 7.07. Nothing herein contained shall be deemed
to empower 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 6.10. Application of Proceeds. Any moneys collected by the Trustee pursuant
to this Article in respect of the Securities of any series shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on
account of Principal or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected and noting thereon
the payment, or issuing Securities of such series and tenor in reduced principal amounts in
exchange for the presented Securities of such series and tenor if only partially paid, or upon
surrender thereof if fully paid:




     FIRST: To the payment of all amounts due the Trustee under Section 7.07 applicable
to the Securities of such series in respect of which moneys have been collected;




     SECOND: Subject to Article 11, in case the principal of the Securities of such
series in respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in default in
the order of the maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee) upon the overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or preference;




     THIRD: Subject to Article 11, in case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and shall be then due and
payable, to the payment of
the whole amount then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such Principal and interest or Yield to
Maturity, without preference or priority of Principal over interest or Yield to Maturity,
or of interest or Yield to Maturity over Principal, or of any installment of
interest over
any other installment of



37









 







interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such Principal and accrued and unpaid
interest or Yield to Maturity; and




     FOURTH: To the payment of the remainder, if any, to the Company or any other person
lawfully entitled thereto.



     Section 6.11. 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 to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though
no such proceeding had been instituted.



     Section 6.12. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, in either case in respect to the Securities of any series, a court may require any
party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant (other than the Trustee) in the suit having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit
by a Holder pursuant to Section 6.07, a suit instituted by the Trustee or a suit by Holders of more
than 10% in principal amount of the outstanding Securities of such series.



     Section 6.13. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities
in Section 2.08, 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 prevent the concurrent assertion or employment of any other appropriate
right or remedy.



     Section 6.14. Delay or Omission not Waiver. No delay or omission of the Trustee or
of any Holder 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 6 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.



38









 





ARTICLE 7

Trustee




     Section 7.01. General. The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act and as set forth herein. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it against any loss,
liability or expense. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.



     Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections
315(a) through (d):




     (a) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel (or
both), statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed or presented by the proper person or persons.
The Trustee need not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;




     (b) before the Trustee acts or refrains from acting, it may require an
Officers’ Certificate and/or an Opinion of Counsel, which shall conform to Section 10.04
and shall cover such other matters as the Trustee may reasonably request. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;




     (c) the Trustee may act through its attorneys and agents not regularly in its
employ and shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care;



39









 






     (d) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;




     (e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request, order or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;




     (f) the Trustee shall not be liable for any action it takes or omits to take
in good faith that it believes to be authorized or within its rights or powers or for any
action it takes or omits to take in accordance with the direction of the Holders in
accordance with Section 6.05 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;




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




     (h) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, Officers’
Certificate, Opinion of Counsel, Board Resolution, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a condition to
proceeding.



     Section 7.03. 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 its Affiliates with the same rights it would



40









 







have if it were not the Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections
310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following terms
shall mean:



     (a) “cash transaction” means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon demand; and



     (b) “self-liquidating paper” means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.



     Section 7.04. Trustee’s Disclaimer. The recitals contained herein and in the
Securities (except the Trustee’s certificate of authentication) shall be taken as statements of the
Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (a) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (b) shall be accountable for the Company’s use or
application of the proceeds from the Securities.



     Section 7.05. Notice of Default. If any Default with respect to the Securities of
any series occurs and is continuing and if such Default is known to the actual knowledge of a
Responsible Officer with the Corporate Trust Department of the Trustee, the Trustee shall give to
each Holder of Securities of such series notice of such Default within 90 days after it occurs (a)
if any
Unregistered Securities of such series are then outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London and (b) to all Holders of Securities of
such series in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
unless such Default shall have been cured or waived before the mailing or publication of such
notice; provided, however, that, except in the case of a Default in the payment of the Principal of
or interest on any Security, the Trustee shall be protected in withholding such notice if the
Trustee in good faith determines that the withholding of such notice is in the interests of the
Holders.



     Section 7.06. Reports by Trustee to Holders. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture



41









 







as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each
May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such
May 15, which complies with the provisions of such Section 313(a).



     A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will promptly notify the Trustee when any Securities are listed on any
stock exchange.



     Section 7.07. Compensation and Indemnity. The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing from time to time for its services. The
compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request
for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s or such predecessor Trustee’s agents, counsel and other persons not
regularly in their employ.



     The Company shall indemnify the Trustee and any predecessor Trustee for, and hold them
harmless against, any loss or liability or expense incurred by them without negligence or bad faith
on their part arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or of series thereof or the trusts
hereunder and the performance of duties under this Indenture and the Securities, including the
costs and expenses of defending themselves against or investigating any claim or liability and of
complying with any process served upon them or any of their officers in connection with the
exercise or performance of any of their powers or duties under this Indenture and the Securities.



     To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay Principal of, and interest on
particular Securities.



     The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or termination of this
Indenture under bankruptcy law. Such additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or coupons, and the
Securities are hereby subordinated to



42









 







such senior claim. Without prejudice to any other rights
available to the Trustee under applicable law, if the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto
and the holders by their acceptance of the Securities hereby agree that such expenses are intended
to constitute expenses of administration under any bankruptcy law.



     Section 7.08. Replacement of Trustee. A resignation or removal of the Trustee as
Trustee with respect to the Securities of any series and appointment of a successor Trustee as
Trustee with respect to the Securities of any series shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.08.



     The Trustee may resign as Trustee with respect to the Securities of any series at any time by
so notifying the Company in writing. The Holders of a majority in principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee
as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible
under Section 7.11 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.



     If the Trustee resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities of any series for
any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of
the outstanding Securities of such series may appoint a successor Trustee in respect of such
Securities to replace the successor Trustee appointed by the Company. If the successor Trustee
with respect to the Securities of any series does not deliver its written acceptance required by
Section 7.09 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority
in principal amount of the outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect thereto.



     The Company shall give notice of any resignation and any removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee in respect of the
Securities of such series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.



     Notwithstanding replacement of the Trustee with respect to the Securities of any series
pursuant to this Section 7.08 and Section 7.09, the Company’s obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.



43









 





     Section 7.09. Acceptance of Appointment by Successor. In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges and subject to the lien provided for in Section 7.07, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.



     Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to



44









 







such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be eligible under this Article and qualified under Section 310(b) of the
Trust Indenture Act.



     Section 7.10. Successor Trustee By Merger, Etc. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business to,
another corporation or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be the successor Trustee
with the same effect as if the successor Trustee had been named as the Trustee herein.



     Section 7.11. Eligibility. This Indenture shall always have a Trustee who satisfies
the requirements of Trust Indenture Act Section 310(a). The Trustee shall have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published annual report of
condition.



     Section 7.12. Money Held in Trust. 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 and except for money held in trust under Article 8 of this Indenture.



ARTICLE 8

Satisfaction and Discharge of Indenture; Unclaimed Moneys




     Section 8.01. Satisfaction and Discharge of Indenture. If at any time (a) the
Company shall have paid or caused to be paid the Principal of and interest on all the Securities of
any series outstanding hereunder (other than Securities of such series which have been destroyed,
lost or stolen and which have been
replaced or paid as provided in Section 2.08) as and when the same shall have become due and
payable, or (b) the Company shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section
2.08) or (c) (i) all the securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (ii) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.04) or U.S. Government Obligations, maturing as to principal and interest in such amounts
and at such times as will insure (without consideration of



45









 







the reinvestment of such interest) the
availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption
all Securities of such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08)
not theretofore delivered to the Trustee for cancellation, including principal and interest due or
to become due on or prior to such date of maturity or redemption as the case may be, and if, in any
such case, the Company is not prohibited from making payments in respect of the Securities by
Article 11 hereof and shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (i) rights of registration of
transfer and exchange of securities of such series, and the Company’s right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights
of holders to receive payments of principal thereof and interest thereon, upon the original stated
due dates therefor (but not upon acceleration) and remaining rights of the holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of the Trustee
hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of them), and the
Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel
and at the cost and expense of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series; provided, that the
rights of Holders of the Securities to receive amounts in respect of Principal of and interest on
the Securities held by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are listed. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Indenture or the Securities of such series.



     Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 8.04, all moneys (including U.S. Government Obligations and the proceeds
thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be
held in trust and applied by it to the payment, either directly or through any paying agent to the
Holders of the particular Securities of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due thereon for
Principal and interest; but such money need not be segregated from other funds except to the extent
required by law. Funds and U.S. Government Obligations held in trust under Section 8.01, 8.05 or
8.06 shall not be subject to the claims of the holders of Senior Indebtedness under Article 11.



     Section 8.03. Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of



46









 







any series, all moneys
then held by any paying agent under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to such moneys.



     Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the
Principal of or interest on any Security of any series and not applied but remaining unclaimed for
two years after the date upon which such Principal or interest shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by the Trustee for such series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Company for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent with respect to such
moneys shall thereupon cease.



     Section 8.05. Defeasance and Discharge of Indenture. The Company shall be deemed to
have paid and shall be discharged from any and all obligations in respect of the Securities of any
series, on the 123rd day after the deposit referred to in clause (i) hereof has been made, and the
provisions of this Indenture shall no longer be in effect with respect to the Securities of such
series (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except as to: (a) rights of registration of transfer and exchange, and the
Company’s right of optional redemption, (b) substitution of apparently mutilated, defaced,
destroyed, lost or stolen Securities, (c) rights of holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), (d) the rights, obligations and immunities of the Trustee hereunder and (e) the
rights of the Securityholders of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them; provided that the following
conditions shall have been satisfied:




     (i) with reference to this provision the Company has deposited or caused to
be irrevocably deposited with the Trustee (or another qualifying trustee satisfying the
requirements of Section 7.11) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities of such series,
(A) money in an amount, or (B) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to in subclause (x) or (y)
of this clause (i) money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge without



47









 







consideration of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable by the Trustee
(x) the principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the due dates thereof and (y) any mandatory sinking fund
payments or analogous 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 Securities of such
series and the Indenture with respect to the Securities of such series;




     (ii) the Company has delivered to the Trustee (A) either (x) an Opinion of
Counsel to the effect that Holders of Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of the Company’s exercise of its
option under this Section 8.05 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, which Opinion of Counsel must be based
upon a ruling of the Internal Revenue Service to the same effect or a change in applicable
federal income tax law or related treasury regulations after the date of this Indenture or
(y) a ruling directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel and (B) an Opinion of Counsel to the
effect that the creation of the defeasance trust does not violate the Investment Company
Act of 1940 and after the passage of 123 days following the deposit, the trust fund will
not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law;




     (iii) immediately after giving effect to such deposit on a pro forma basis,
no Event of Default, or event that after the giving of notice or lapse of time or both
would become an Event of Default, shall have occurred and be continuing on the date of
such deposit or during the
period ending on the 123rd day after the date of such deposit, and such deposit shall
not result in a breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which the Company is bound;




     (iv) if at such time the Securities of such series are listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Securities of such series will not be delisted as a result of such
deposit, defeasance and discharge;




     (v) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge under this Section have been complied with; and



48









 






     (vi) if the Securities of such series are to be redeemed prior to the final
maturity thereof (other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee shall have been made.



     Section 8.06. Defeasance of Certain Obligations. The Company may omit to comply with
any term, provision or condition set forth in, and this Indenture will no longer be in effect with
respect to, any covenant established pursuant to Section 2.03(r) and clause (c) (with respect to
any covenants established pursuant to Section 2.03(r)) and clause (f) of Section 6.01 shall be
deemed not to be an Event of Default with respect to Securities of any series, if



     (a) with reference to this Section 8.06, the Company has deposited or caused to be
irrevocably deposited with the Trustee (or another qualifying trustee satisfying the requirements
of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series and the Indenture with
respect to the Securities of such series, (i) money in an amount or (ii) U.S. Government
Obligations which through the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due dates thereof or earlier
redemption (irrevocably provided for under agreements satisfactory to the Trustee), as the case may
be, of any payment referred to in subclause (x) or (y) of this clause (a) money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and assessments in respect thereof
payable by the Trustee (x) the principal of, premium, if any, and each installment of interest on
the outstanding Securities of such series on the due date thereof or earlier redemption
(irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be, and
(y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of such series and the
Indenture with respect to the Securities of such series on the day on which such payments are due
and payable in accordance with the terms of the Indenture and of Securities of such series and the
Indenture with respect to the Securities of such series;



     (b) the Company has delivered to the Trustee (i) an Opinion of Counsel to the effect
that Holders of Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of the Company’s exercise of its option under this Section 8.06 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 and defeasance had not occurred and (ii) an
Opinion of Counsel to the effect that the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and after the passage of 123 days following



49









 







the deposit, the trust
fund will not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law;



     (c) immediately after giving effect to such deposit on a pro forma basis, no Event of
Default, or event that after the giving of notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under, any other agreement or instrument to which
the Company is a party or by which the Company is bound;



     (d) if at such time the Securities of such series are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
Securities of such series will not be delisted as a result of such deposit, defeasance and
discharge; and



     (e) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance under this
Section have been complied with.



     Section 8.07. Reinstatement. If the Trustee or paying agent is unable to apply any
monies or U.S. Government Obligations in accordance with Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article until such time as the Trustee or paying agent is permitted to apply all
such monies or U.S. Government Obligations in accordance with Article 8; 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 monies or U.S. Government Obligations held by the
Trustee or paying agent.



     Section 8.08. Indemnity. The Company shall pay and indemnify the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.08 and Section 8.02, the “Trustee”)
against any tax, fee or other charge, imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01, 8.05 or 8.06 or the principal or interest received
in respect thereof other than any such tax, fee or other charge which by law is for the account of
the Holders of the Securities and any coupons appertaining thereto.



     Section 8.09. Excess Funds. Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of
the Company, any money or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a
nationally recognized firm of



50









 







Independent Public Accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a discharge or defeasance, as applicable, in accordance with this Article
8.



     Section 8.10. Qualifying Trustee. Any trustee appointed pursuant to Section 8.05 or
8.06 for the purpose of holding money or U.S. Government Obligations deposited pursuant to such
Sections shall be appointed under an agreement in form acceptable to the Trustee and shall provide
to the Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively
rely, that all conditions precedent provided for herein to the related defeasance have been
complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee



ARTICLE 9

Amendments, Supplements and Waivers




     Section 9.01. Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities of any series without notice to or the consent of any
Holder:




     (a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not materially and adversely affect the
interests of the Holders;




     (b) to comply with Article 5;




     (c) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the Trust Indenture Act;




     (d) to evidence and provide for the acceptance of appointment hereunder with
respect to the Securities of any or all series by a successor
Trustee 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, pursuant to the requirements of Section 7.09;




     (e) to establish the form or forms or terms of Securities of any series or of
the coupons appertaining to such Securities as permitted by Section 2.03;




     (f) to provide for uncertificated or Unregistered Securities and to make all
appropriate changes for such purpose; and



51









 






     (g) to make any change that does not materially and adversely affect the
rights of any Holder.



     Section 9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07, without
prior notice to any Holders, the Company and the Trustee may amend this Indenture and the
Securities of any series with the written consent of the Holders of a majority in principal amount
of the outstanding Securities of all series affected by such amendment (all such series voting
together as a single class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting together as a single class) by
written notice to the Trustee may waive future compliance by the Company with any provision of this
Indenture or the Securities of such series.



     Notwithstanding the provisions of this Section 9.02, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:



     (a) change the stated maturity of the Principal of, or any sinking fund obligation or
any installment of interest on, such Holder’s Security,



     (b) reduce the Principal amount thereof or the rate of interest thereon (including any
amount in respect of original issue discount);



     (c) reduce the above stated percentage of outstanding Securities the consent of whose
holders is necessary to modify or amend the Indenture with respect to the Securities of the
relevant series; and



     (d) reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any supplemental indenture or for any
waiver of compliance with certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture.



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the rights of
Holders of Securities of such series with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of any other series or
of the coupons appertaining to such Securities.



     It shall not be necessary for the consent of any Holder under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company



52









 







will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail 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 9.03. Revocation and Effect of Consent. Until an amendment or waiver becomes
effective, a consent to it by a Holder 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 Security of the
consenting Holder, 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 its Security or portion of its Security.
Such revocation shall be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on receipt by the Trustee of
written consents from the requisite Holders of outstanding Securities affected thereby.



     The Company may, but shall not be obligated to, fix a record date (which may be not less than
five nor more than 60 days prior to the solicitation of consents) for the purpose of determining
the Holders of the Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective for more than 90 days
after such record date.



     After an amendment, supplement or waiver becomes effective with respect to the Securities of
any series affected thereby, it shall bind every Holder of such Securities unless it is of the type
described in any of clauses (a) through (d) of Section 9.02. In case of an amendment or waiver of
the type described in clauses (a) through (d) of Section 9.02, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a Security that evidences
the same indebtedness as the Security of the consenting Holder.



     Section 9.04. Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of any Security, the Trustee may require the Holder thereof to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate notation on any Security
of such series thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate
a new Security of the same series and tenor that reflects the changed terms.



     Section 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of



53









 







Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is
authorized or permitted by this Indenture, stating that all requisite consents have been obtained
or that no consents are required and stating that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to customary exceptions. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.



     Section 9.06. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act as
then in effect.



ARTICLE 10

Miscellaneous




     Section 10.01. Trust Indenture Act of 1939. This Indenture shall incorporate and be
governed by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.



     Section 10.02. Notices. Any notice or communication shall be sufficiently given if
written and (a) if delivered in person when received or (b) if mailed by first class mail 5 days
after mailing, or (c) as between the Company and the Trustee if sent by facsimile transmission,
when transmission is confirmed, in each case addressed as follows:



     if to the Company:


Orbitz Worldwide, Inc.

500 W. Madison Street

Suite 1000

Chicago, Illinois 60661

Telecopy: (312) 894-5000

Attention: General Counsel




     if to the Trustee:



     The Company or the Trustee by written notice to the other may designate additional or
different addresses for subsequent notices or communications.



54









 





     Any notice or communication shall be sufficiently given to Holders of any Unregistered
Securities, by publication at least once in an Authorized Newspaper in The City of New York, or
with respect to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits at least once in an Authorized Newspaper in London,
and by mailing to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to
the Trustee and to Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be sufficiently given if so
mailed within the time prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.



     Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section 10.02, it is duly given,
whether or not the addressee receives it.



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



     In case it shall be impracticable to give notice as herein contemplated, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.



     Section 10.03. 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 Officers’ Certificate stating that, in the opinion of the signers, 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 10.04. 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 the certificate required by Section 4.04) shall include:



55









 






     (a) a statement that each person signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;




     (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate or opinion
is based;




     (c) a statement that, in the opinion of each 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 each such person,
such condition or covenant has been complied with; provided, however, that, with respect
to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.



     Section 10.05. Evidence of Ownership. The Company, the Trustee and any agent of the
Company or the Trustee may deem and treat the Holder of any Unregistered Security and the Holder of
any coupon as the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes, and neither the Company, the Trustee, nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the date thereof a
Security bearing a specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered Securities specified therein.
The holding by
the person named in any such certificate of any Unregistered Securities specified therein
shall be presumed to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate bearing a later date issued
in respect of the same Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held by the Person so
executing such instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.



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     The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Registered Security shall be registered upon the Security Register for
such series as the absolute owner of such Registered Security (whether or not such Registered
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of and, subject to the
provisions of this Indenture, interest on such Registered Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.



     Section 10.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.



     Section 10.07. Payment Date Other Than a Business Day. Except as otherwise provided
with respect to a series of Securities, if any date for payment of Principal or interest on any
Security shall not be a Business Day at any place of payment, then payment of Principal of or
interest on such Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force and effect as if made
on such date and no interest shall accrue in respect of such payment for the period from and after
such date.



     Section 10.08. Governing Law. The laws of the State of New York shall govern this
Indenture and the Securities.



     Section 10.09. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture or loan or debt agreement of the Company or any Subsidiary
of the Company. Any such indenture or agreement may not be used to interpret this Indenture.



     Section 10.10. Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.



     Section 10.11. Duplicate Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     Section 10.12. Separability. 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 10.13. Table of Contents, Headings, Etc. The Table of Contents and headings
of the Articles and Sections of this Indenture have been inserted for



57









 







convenience of reference
only, are not to be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.



     Section 10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt
from Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or any indenture supplemental hereto, or in any Security or any coupons
appertaining thereto, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder, officer, director or
employee, as such, of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the coupons appertaining
thereto by the holders thereof and as part of the consideration for the issue of the Securities and
the coupons appertaining thereto.



     Section 10.15. 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 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 Business Day, then, to the extent permitted by applicable law,
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 Business 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, or 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.



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ARTICLE 11

Subordination of Securities




     Section 11.01. Agreement to Subordinate. The Company covenants and agrees, and each
Holder of Securities issued hereunder by his acceptance thereof likewise covenants and agrees, that
all Securities shall be issued subject to the provisions of this Article; and each person holding
any Security, whether upon original issue or upon transfer, assignment or exchange thereof accepts
and agrees that the Principal of and interest on all Securities issued hereunder shall, to the
extent and in the manner herein set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness.



     Section 11.02. Payments to Securityholders. No payments on account of Principal of
or interest on the Securities shall be made if at the time of such payment or immediately after
giving effect thereto there shall exist a default in any payment with respect to any Senior
Indebtedness, and such default shall not have been cured or waived or shall not have ceased to
exist. In addition, during the continuance of any default (other than a payment default) with
respect to Designated Senior Indebtedness pursuant to which the maturity thereof may be
accelerated, from and after the date of receipt by the Trustee of written notice from the holders
of such Designated Senior Indebtedness or from an agent of such holders, stating that such default
has occurred and is continuing, no payments on account of Principal or interest in respect of the
Securities may be made by the Company for a period (“Payment Blockage Period”) commencing on the
date of delivery of such notice and ending 179 days thereafter (unless such Payment Blockage Period
shall be terminated by written notice to the Trustee from the holders of such Designated Senior
Indebtedness or from an agent of such holders, or such default has been cured or waived or has
ceased to exist). Only one Payment Blockage Period may be commenced with respect to the Securities
during any period of 360 consecutive days. No Event of Default which existed or was continuing on
the date of the commencement of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be or be made the basis for the
commencement of any subsequent Payment Blockage Period by the holders of such Designated Senior
Indebtedness, unless such Event of Default shall have been cured or waived for a period of not less
than 90 consecutive days.



     Upon any payment or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any liquidation, dissolution, winding up,
receivership, reorganization, assignment for the benefit of creditors, marshalling of assets and
liabilities or any bankruptcy, insolvency or similar proceedings of the Company, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in full, in cash or cash
equivalents, or payment thereof provided for in accordance with its terms, before any payment is
made on account of the Principal of, or interest on the indebtedness evidenced by the Securities,
and upon any such liquidation, dissolution, winding up, receivership, reorganization, assignment,
marshalling or proceeding, any payment



59









 







or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the Securities or the
Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, directly to the holders of Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or
their respective representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full
(including, without limitation, except to the extent, if any, prohibited by mandatory provisions of
law, post-petition interest, in any such proceedings), after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the holders of the indebtedness evidenced by the Securities or to the
Trustee under this Indenture.



     In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee under this Indenture or the Holders of the Securities
before all Senior Indebtedness is paid in full or provision is made for such payment in accordance
with its terms, such payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.



     For purposes of this Article, the words, “cash, property or securities” shall not be deemed to
include shares of stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of arrangement, reorganization or readjustment, the
payment of which is
subordinated (at least to the extent provided in this Article with respect to the Securities)
to the payment of all Senior Indebtedness which may at the time be outstanding; provided, that (i)
the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such
arrangement, reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such arrangement,
reorganization or readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the Company following the
sale, conveyance or transfer of all or substantially all of its property and assets to another
corporation upon the terms and conditions



60









 







provided in Article 5 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply
with the conditions stated in Article 5. Nothing in this Section shall apply to claims of, or
payments to, the Trustee under or pursuant to Article 7. This Section shall be subject to the
further provisions of Section 11.05.



     Section 11.03. Subrogation of Securities. Subject to the payment in full of all
Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders
of Senior Indebtedness to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the principal of and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to
the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee on their behalf would be entitled except for the provisions of this
Article, and no payment over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee on their behalf shall, as between the
Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior Indebtedness; and no
payments or distributions of cash, property or securities to or for the benefit of the
Securityholders pursuant to the subrogation provision of this Article, which would otherwise have
been paid to the holders of Senior Indebtedness shall be deemed to be a payment by the Company to
or for the account of the Securities. It is understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the Holders of the Senior Indebtedness, on the other hand.



     Nothing contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the Principal of and interest on the
Securities as and when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the Securities and creditors of
the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Holder of any Security or the Trustee on his
behalf from exercising all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company received upon the exercise of any such
remedy.



     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Sections 7.01 and 7.02, and the holders of the Securities
shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in
which such liquidation, dissolution, winding up, receivership, reorganization, assignment or
marshalling proceedings



61









 







are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.



     Section 11.04. Authorization by Securityholders. Each Holder of a Security by his
acceptance thereof authorizes the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.



     Section 11.05. Notice to Trustee. The Company shall give prompt written notice to
the Trustee and to any paying agent of any fact known to the Company which would prohibit the
making of any payment of moneys to or by the Trustee or any paying agent in respect of the
Securities pursuant to the provisions of this Article or would end such prohibition. Regardless of
anything to the contrary contained in this Article or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any Senior Indebtedness or of any default
or event of default with respect to any Senior Indebtedness or of any other facts which would
prohibit the making of any payment of moneys to or by the Trustee or which would end such
prohibition, unless and until the Trustee shall have received notice in writing at its principal
Corporate Trust Office to that effect signed by an officer of the Company, or by a holder or agent
of a holder of Senior Indebtedness or by the trustee under any indenture pursuant to which Senior
Indebtedness shall be outstanding, who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or agent or trustee,
and, prior to the receipt of any such written notice, the Trustee shall, subject to Sections 7.01
and 7.02, be entitled to assume that no such facts exist; provided that if on a date at least three
Business Days prior to the date upon which by the terms hereof any such moneys shall become payable
for any purpose (including, without limitation, the payment of the Principal of, or interest on any
Security) the Trustee shall not have received with respect to such moneys the notice of prohibition
provided for in this Section, then,
regardless of anything herein to the contrary, the Trustee shall have full power and authority
to receive such moneys and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on or after such prior
date.



     Regardless of anything to the contrary herein, nothing shall prevent (a) any payment by the
Company or the Trustee to the Securityholders of amounts in connection with a redemption of
Securities if (i) notice of such redemption has been given pursuant to Article 3 prior to the
receipt by the Trustee
of written notice of prohibition as aforesaid, and (ii) such notice of
redemption is given not earlier than 60 days before the redemption date, or (b) any payment by the
Trustee



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to the Securityholders of amounts deposited with it pursuant to Sections 8.01, 8.05 or
8.06.



     The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior Indebtedness or a
trustee or agent on behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts pertinent to the rights
of such Person under this Article, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such Person to receive
such payment.



     Section 11.06. Trustee’s Relation to Senior Indebtedness. The Trustee and any agent
of the Company or the Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any such agent, of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to
7.07.



     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and, subject to the provisions of Sections 7.01 and
7.02, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, the Company or any other
Person moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article or otherwise.



     Section 11.07. No Impairment of Subordination. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.



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SIGNATURES




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



	 	 	 	 	 	 	 	 	 
	(SEAL)	 	 	 	ORBITZ WORLDWIDE, INC.	 	 
	 

	 	 	 	 	as the Company	 	 
	Attest:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	(SEAL)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	as the Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 







64