Exhibit 4.2


 




 





VALMONT INDUSTRIES, INC.

as Issuer


 


THE SUBSIDIARY GUARANTORS
NAMED HEREIN

as Guarantors


 


6 7/8% Senior Subordinated
Notes due 2014


 






 


INDENTURE


 


Dated as of May 4, 2004


 






 


Wells Fargo Bank, National
Association

as Trustee


 




 




















 


CROSS-REFERENCE TABLE


 




	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  	
   

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.08;
  7.10

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.11

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  	
   

  
	
   

  	
  (b)

  	
   

  	
  13.03

  	
   

  
	
   

  	
  (c)

  	
   

  	
  13.03

  	
   

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  	
   

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06

  	
   

  
	
   

  	
  (c)

  	
   

  	
  13.02

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.06

  	
   

  
	
  314

  	
  (a)

  	
   

  	
  4.02;
  4.10; 13.02

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
  13.04

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
  13.04

  	
   

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (e)

  	
   

  	
  13.05

  	
   

  
	
   

  	
  (f)

  	
   

  	
  4.10

  	
   

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.05;
  13.02

  	
   

  
	
   

  	
  (c)

  	
   

  	
  7.01

  	
   

  
	
   

  	
  (d)

  	
   

  	
  7.01

  	
   

  
	
   

  	
  (e)

  	
   

  	
  6.11

  	
   

  
	
  316

  	
  (a)(last
  sentence)

  	
   

  	
  13.0

  	
   

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
  6.07

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  	
   

  
	
   

  	
  (b)

  	
   

  	
  2.04

  	
   

  
	
  318

  	
  (a)

  	
   

  	
  13.01

  	
   

  






 






N.A. means Not Applicable.


 


This Cross-Reference Table
shall not, for any purpose, be deemed to be part of the Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article 1

  
	
  Definitions and Incorporation by Reference

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Other
  Definitions

  	
  20

  
	
  SECTION 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  20

  
	
  SECTION 1.04.

  	
  Rules of
  Construction

  	
  21

  
	
  Article 2

  
	
  The Securities

  
	
  SECTION 2.01.

  	
  Form and
  Dating

  	
  21

  
	
  SECTION 2.02.

  	
  Execution
  and Authentication

  	
  22

  
	
  SECTION 2.03.

  	
  Registrar
  and Paying Agent

  	
  22

  
	
  SECTION 2.04.

  	
  Paying
  Agent To Hold Money in Trust

  	
  22

  
	
  SECTION 2.05.

  	
  Securityholder
  Lists

  	
  23

  
	
  SECTION 2.06.

  	
  Transfer
  and Exchange

  	
  23

  
	
  SECTION 2.07.

  	
  Replacement
  Securities

  	
  23

  
	
  SECTION 2.08.

  	
  Outstanding
  Securities

  	
  23

  
	
  SECTION 2.09.

  	
  Temporary
  Securities

  	
  24

  
	
  SECTION 2.10.

  	
  Cancellation

  	
  24

  
	
  SECTION 2.11.

  	
  Defaulted
  Interest

  	
  24

  
	
  SECTION 2.12.

  	
  CUSIP
  Numbers

  	
  24

  
	
  SECTION 2.13.

  	
  Issuance
  of Additional Securities

  	
  24

  
	
  Article 3

  
	
  Redemption

  
	
  SECTION 3.01.

  	
  Notices
  to Trustee

  	
  25

  
	
  SECTION 3.02.

  	
  Selection
  of Securities to Be Redeemed

  	
  25

  
	
  SECTION 3.03.

  	
  Notice
  of Redemption

  	
  25

  
	
  SECTION 3.04.

  	
  Effect
  of Notice of Redemption

  	
  26

  
	
  SECTION 3.05.

  	
  Deposit
  of Redemption Price

  	
  26

  
	
  SECTION 3.06.

  	
  Securities
  Redeemed in Part

  	
  26

  
	
  Article 4

  
	
  Covenants

  
	
  SECTION 4.01.

  	
  Payment
  of Securities

  	
  26

  
	
  SECTION 4.02.

  	
  SEC
  Reports

  	
  26

  
	
  SECTION 4.03.

  	
  Limitation
  on Indebtedness

  	
  27

  
	
  SECTION 4.04.

  	
  Limitation
  on Restricted Payments

  	
  30

  
	
  SECTION 4.05.

  	
  Limitation
  on Restrictions on Distributions from Restricted Subsidiaries

  	
  32

  
	
  SECTION 4.06.

  	
  Limitation
  on Sales of Assets and Subsidiary Stock

  	
  34

  
	
  SECTION 4.07.

  	
  Limitation
  on Affiliate Transactions

  	
  37

  
	
  SECTION 4.08.

  	
  Limitation
  on Line of Business

  	
  38

  
	
  SECTION 4.09.

  	
  Limitation
  on the Sale or Issuance of Capital Stock of Restricted Subsidiaries

  	
  38

  
	
  SECTION 4.10.

  	
  Change
  of Control

  	
  38

  
	
  SECTION 4.11.

  	
  Future
  Guarantors

  	
  39

  
	
  SECTION 4.12.

  	
  Compliance
  Certificate

  	
  39

  
	
  SECTION 4.13.

  	
  Further
  Instruments and Acts

  	
  40

  



 

















 


	
  Article 5

  
	
  Successor Company

  
	
  SECTION 5.01.

  	
  When
  Company May Merge or Transfer Assets

  	
  40

  
	
  Article 6

  
	
  Defaults and Remedies

  
	
  SECTION 6.01.

  	
  Events
  of Default

  	
  41

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  43

  
	
  SECTION 6.03.

  	
  Other
  Remedies

  	
  43

  
	
  SECTION 6.04.

  	
  Waiver
  of Past Defaults

  	
  43

  
	
  SECTION 6.05.

  	
  Control
  by Majority

  	
  44

  
	
  SECTION 6.06.

  	
  Limitation
  on Suits

  	
  44

  
	
  SECTION 6.07.

  	
  Rights
  of Holders to Receive Payment

  	
  44

  
	
  SECTION 6.08.

  	
  Collection
  Suit by Trustee

  	
  45

  
	
  SECTION 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
  45

  
	
  SECTION 6.10.

  	
  Priorities

  	
  45

  
	
  SECTION 6.11.

  	
  Undertaking
  for Costs

  	
  45

  
	
  SECTION 6.12.

  	
  Waiver
  of Stay or Extension Laws

  	
  45

  
	
  Article 7

  
	
  Trustee

  
	
  SECTION 7.01.

  	
  Duties
  of Trustee

  	
  46

  
	
  SECTION 7.02.

  	
  Rights
  of Trustee

  	
  47

  
	
  SECTION 7.03.

  	
  Individual
  Rights of Trustee

  	
  47

  
	
  SECTION 7.04.

  	
  Trustee’s
  Disclaimer

  	
  47

  
	
  SECTION 7.05.

  	
  Notice
  of Defaults

  	
  47

  
	
  SECTION 7.06.

  	
  Reports
  by Trustee to Holders

  	
  47

  
	
  SECTION 7.07.

  	
  Compensation
  and Indemnity

  	
  48

  
	
  SECTION 7.08.

  	
  Replacement
  of Trustee

  	
  48

  
	
  SECTION 7.09.

  	
  Successor
  Trustee by Merger

  	
  49

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification

  	
  49

  
	
  SECTION 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  49

  
	
  Article 8

  
	
  Discharge of Indenture; Defeasance

  
	
  SECTION 8.01.

  	
  Discharge
  of Liability on Securities; Defeasance

  	
  49

  
	
  SECTION 8.02.

  	
  Conditions
  to Defeasance

  	
  50

  
	
  SECTION 8.03.

  	
  Application
  of Trust Money

  	
  51

  
	
  SECTION 8.04.

  	
  Repayment
  to Company

  	
  51

  
	
  SECTION 8.05.

  	
  Indemnity
  for Government Obligations

  	
  51

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
  51

  
	
  Article 9

  
	
  Amendments

  
	
  SECTION 9.01.

  	
  Without
  Consent of Holders

  	
  52

  
	
  SECTION 9.02.

  	
  With
  Consent of Holders

  	
  53

  
	
  SECTION 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
  53

  
	
  SECTION 9.04.

  	
  Revocation
  and Effect of Consents and Waivers

  	
  54

  
	
  SECTION 9.05.

  	
  Notation
  on or Exchange of Securities

  	
  54

  
	
  SECTION 9.06.

  	
  Trustee
  To Sign Amendments

  	
  54

  
	
  SECTION 9.07.

  	
  Payment
  for Consent

  	
  54

  
	
  Article 10

  
	
  Subordination

  
	
  SECTION 10.01.

  	
  Agreement
  To Subordinate

  	
  54

  
	
  SECTION 10.02.

  	
  Liquidation,
  Dissolution, Bankruptcy

  	
  55

  



 

















 


	
  SECTION 10.03.

  	
  Default
  on Senior Indebtedness of the Company

  	
  55

  
	
  SECTION 10.04.

  	
  Acceleration
  of Payment of Securities

  	
  56

  
	
  SECTION 10.05.

  	
  When
  Distribution Must Be Paid Over

  	
  56

  
	
  SECTION 10.06.

  	
  Subrogation

  	
  56

  
	
  SECTION 10.07.

  	
  Relative
  Rights

  	
  56

  
	
  SECTION 10.08.

  	
  Subordination
  May Not Be Impaired by Company

  	
  56

  
	
  SECTION 10.09.

  	
  Rights
  of Trustee and Paying Agent

  	
  56

  
	
  SECTION 10.10.

  	
  Distribution
  or Notice to Representative

  	
  57

  
	
  SECTION 10.11.

  	
  Article 10
  Not To Prevent Events of Default or Limit Right To Accelerate

  	
  57

  
	
  SECTION 10.12.

  	
  Trust
  Moneys Not Subordinated

  	
  57

  
	
  SECTION 10.13.

  	
  Trustee
  Entitled To Rely

  	
  57

  
	
  SECTION 10.14.

  	
  Trustee
  To Effectuate Subordination

  	
  58

  
	
  SECTION 10.15.

  	
  Trustee
  Not Fiduciary for Holders of Senior Indebtedness of the Company

  	
  58

  
	
  SECTION 10.16.

  	
  Reliance
  by Holders of Senior Indebtedness of the Company on Subordination Provisions

  	
  58

  
	
  Article 11

  
	
  Subsidiary Guaranties

  
	
  SECTION 11.01.

  	
  Guaranties

  	
  58

  
	
  SECTION 11.02.

  	
  Limitation
  on Liability

  	
  60

  
	
  SECTION 11.03.

  	
  Successors
  and Assigns

  	
  60

  
	
  SECTION 11.04.

  	
  No
  Waiver

  	
  60

  
	
  SECTION 11.05.

  	
  Modification

  	
  60

  
	
  SECTION 11.06.

  	
  Release
  of Subsidiary Guarantor

  	
  60

  
	
  SECTION 11.07.

  	
  Contribution

  	
  61

  
	
  Article 12

  
	
  Subordination of Subsidiary Guaranties

  
	
  SECTION 12.01.

  	
  Agreement
  To Subordinate

  	
  61

  
	
  SECTION 12.02.

  	
  Liquidation,
  Dissolution, Bankruptcy

  	
  61

  
	
  SECTION 12.03.

  	
  Default
  on Senior Indebtedness of Subsidiary Guarantor

  	
  62

  
	
  SECTION 12.04.

  	
  Demand
  for Payment

  	
  63

  
	
  SECTION 12.05.

  	
  When
  Distribution Must Be Paid Over

  	
  63

  
	
  SECTION 12.06.

  	
  Subrogation

  	
  63

  
	
  SECTION 12.07.

  	
  Relative
  Rights

  	
  63

  
	
  SECTION 12.08.

  	
  Subordination
  May Not Be Impaired by Company

  	
  63

  
	
  SECTION 12.09.

  	
  Rights
  of Trustee and Paying Agent

  	
  63

  
	
  SECTION 12.10.

  	
  Distribution
  or Notice to Representative

  	
  64

  
	
  SECTION 12.11.

  	
  Article 12
  Not To Prevent Events of Default or Limit Right To Demand Payment

  	
  64

  
	
  SECTION 12.12.

  	
  Trustee
  Entitled To Rely

  	
  64

  
	
  SECTION 12.13.

  	
  Trustee
  To Effectuate Subordination

  	
  64

  
	
  SECTION 12.14.

  	
  Trustee
  Not Fiduciary for Holders of Senior Indebtedness of Subsidiary Guarantor

  	
  64

  
	
  SECTION 12.15.

  	
  Reliance
  by Holders of Senior Indebtedness of Subsidiary Guarantors on Subordination
  Provisions

  	
  65

  
	
  Article 13

  
	
  Miscellaneous

  
	
  SECTION 13.01.

  	
  Trust
  Indenture Act Controls

  	
  65

  
	
  SECTION 13.02.

  	
  Notices

  	
  65

  
	
  SECTION 13.03.

  	
  Communication
  by Holders with Other Holders

  	
  66

  
	
  SECTION 13.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  66

  



 

















 


	
  SECTION 13.05.

  	
  Statements
  Required in Certificate or Opinion

  	
  66

  
	
  SECTION 13.06.

  	
  When
  Securities Disregarded

  	
  66

  
	
  SECTION 13.07.

  	
  Rules by
  Trustee, Paying Agent and Registrar

  	
  66

  
	
  SECTION 13.08.

  	
  Legal
  Holidays

  	
  67

  
	
  SECTION 13.09.

  	
  Governing
  Law

  	
  67

  
	
  SECTION 13.10.

  	
  No
  Recourse Against Others

  	
  67

  
	
  SECTION 13.11.

  	
  Successors

  	
  67

  
	
  SECTION 13.12.

  	
  Multiple
  Originals

  	
  67

  
	
  SECTION 13.13.

  	
  Table
  of Contents; Headings

  	
  67

  



 


Rule 144A /
Regulation S / IAI Appendix


 


	
  Exhibit 1
  -

  	
  Form of
  Initial Security

  
	
   

  	
   

  
	
  Exhibit A
  -

  	
  Form of
  Exchange Security or Private Exchange Security

  
	
   

  	
   

  
	
  Exhibit 2 -

  	
  Form of Transferee
  Letter of Representation

  



 


 

















 


INDENTURE dated as of May 4,
2004, among VALMONT INDUSTRIES, INC., a Delaware corporation (the “Company”),
the SUBSIDIARY GUARANTORS from time to time party hereto and WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association (the “Trustee”).


 


Each party agrees as follows
for the benefit of the other parties and for the equal and ratable benefit of the
Holders of the Company’s Initial Securities, Exchange Securities and Private
Exchange Securities (collectively, the “Securities”):


 


Article 1


 


Definitions and
Incorporation by Reference


 


SECTION 1.01.
Definitions.


 


“Additional Assets” means (1) any
property, plant or equipment used in a Related Business; (2) the Capital
Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (3) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary; provided, however, that
any such Restricted Subsidiary described in clause (2) or (3) above
is primarily engaged in a Related Business.


 


“Additional Securities”
means Securities issued under this Indenture after the Issue Date and in
compliance with Section 2.13 and 4.03, it being understood that any
Securities issued in exchange for or replacement of any Initial Security issued
on the Issue Date shall not be an Additional Security, including any such
Securities issued pursuant to a Registration Rights Agreement.


 


“Affiliate” of any specified
Person means any other Person, directly or indirectly, controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. A Person shall not be
deemed to be an “Affiliate” of the Company or any of its Restricted
Subsidiaries solely as a result of a director of the Company also serving as a
director or executive officer of such Person. For purposes of
Sections 4.04, 4.06 and 4.07 only, “Affiliate” shall also mean any
beneficial owner of Capital Stock representing 5% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of
rights or warrants to purchase such Capital Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence of this definition.


 


“Asset Disposition” means
any sale, lease, transfer or other disposition (or series of related sales,
leases, transfers or dispositions that are part of a common plan) by the
Company or any Restricted Subsidiary, including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a “disposition”), of:


 


(1) any shares of
Capital Stock of a Restricted Subsidiary (other than directors’ qualifying
shares or shares required by applicable law to be held by a Person other than
the Company or a Restricted Subsidiary);


 


1

















 


(2) all or
substantially all the assets of any division or line of business of the Company
or any Restricted Subsidiary; or


 


(3) any other assets of
the Company or any Restricted Subsidiary outside of the ordinary course of
business of the Company or such Restricted Subsidiary


 


other than, in the case of
clauses (1), (2) and (3) above, (A) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly Owned Subsidiary; (B) for purposes of Section 4.06
only, (i) a disposition that constitutes a Restricted Payment (or would
constitute a Restricted Payment but for the exclusions from the definition
thereof) and that is not prohibited by Section 4.04 and (ii) a
disposition of all or substantially all the assets of the Company in accordance
with Section 5.01; (C) a disposition of assets with a fair market
value of less than $1.0 million; (D) a disposition of cash or
Temporary Cash Investments; (E) the creation of a Lien (but not the sale
or other disposition of the property subject to such Lien); and (F) a
disposition of obsolete or damaged equipment or property.


 


“Attributable Debt” in
respect of a Sale/Leaseback Transaction means, as at the time of determination,
the present value (discounted at the interest rate borne by the Securities,
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended);
provided, however, that if such Sale/Leaseback Transaction results in a Capital
Lease Obligation, the amount of Indebtedness represented thereby will be
determined in accordance with the definition of “Capital Lease Obligation”.


 


“Average Life” means, as of
the date of determination, with respect to any Indebtedness, the quotient
obtained by dividing (1) the sum of the products of the numbers of years
from the date of determination to the dates of each successive scheduled
principal payment of or redemption or similar payment with respect to such
Indebtedness multiplied by the amount of such payment by (2) the sum of
all such payments.


 


“Bank Indebtedness” means
all Obligations pursuant to the Credit Agreement.


 


“Board of Directors” means
the Board of Directors of the Company or any committee thereof duly authorized
to act on behalf of such Board of Directors.


 


“Business Day” means each
day which is not a Legal Holiday.


 


“Capital Lease Obligation”
means an obligation that is required to be classified and accounted for as a
capital lease for financial reporting purposes in accordance with GAAP, and the
amount of Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with GAAP; and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may
be terminated by the lessee without payment of a penalty.


 


“Capital Stock” of any
Person means any and all shares, interests (including partnership interests),
rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.


 


“Change of Control” means
the occurrence of any of the following events:


 


2

















 


(1) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (1) such person shall be deemed to have
“beneficial ownership” of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Company; provided, however, that the Permitted
Holders beneficially own (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, in the aggregate a lesser percentage of
the total voting power of the Voting Stock of the Company than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors (for the purposes of this clause (1), such other person shall be
deemed to beneficially own any Voting Stock of a Person (the “specified
person”) held by any other Person (the “parent entity”), if such other person
is the beneficial owner (as defined above in this clause (1)), directly or
indirectly, of more than 35% of the voting power of the Voting Stock of such
parent entity and the Permitted Holders beneficially own (as defined in this
proviso), directly or indirectly, in the aggregate a lesser percentage of the
voting power of the Voting Stock of such parent entity and do not have the
right or ability by voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such parent entity);


 


(2) individuals who on
the Issue Date constituted the Board of Directors (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of a
majority of the directors of the Company then still in office who were either
directors on the Issue Date or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors then in office;


 


(3) the adoption of a
plan relating to the liquidation or dissolution of the Company; or


 


(4) the merger or
consolidation of the Company with or into another Person or the merger of
another Person with or into the Company, or the sale of all or substantially
all the assets of the Company (determined on a consolidated basis) to another
Person other than (A) a transaction in which the survivor or transferee is
a Person that is controlled by the Permitted Holders or (B) a transaction
following which (i) in the case of a merger or consolidation transaction,
holders of securities that represented 100% of the Voting Stock of the Company
immediately prior to such transaction (or other securities into which such
securities are converted as part of such merger or consolidation transaction)
own directly or indirectly at least a majority of the voting power of the
Voting Stock of the surviving Person in such merger or consolidation
transaction immediately after such transaction and in substantially the same
proportion as before the transaction and (ii) in the case of a sale of
assets transaction, each transferee becomes an obligor in respect of the
Securities and a Subsidiary of the transferor of such assets.


 


“Code” means the Internal
Revenue Code of 1986, as amended.


 


“Company” means the party
named as such in this Indenture until a successor replaces it and, thereafter,
means the successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Securities.


 


“Commodity Price Protection
Agreement” means, with respect to any Person, any forward contract, commodity
swap, commodity option or other similar agreement or arrangement entered into
with respect to fluctuations in commodity prices.


 


3

















 


“Consolidated Coverage
Ratio” as of any date of determination means the ratio of


 


(a) the aggregate
amount of EBITDA for the period of the most recent four consecutive fiscal
quarters ending prior to the date of such determination for which internal
financial statements are available to


 


(b) Consolidated
Interest Expense for such four fiscal quarters;


 


provided, however, that:


 


(1) if the Company or
any Restricted Subsidiary has Incurred any Indebtedness since the beginning of
such period that remains outstanding or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period;


 


(2) if the Company or
any Restricted Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise discharged (in
each case other than Indebtedness Incurred under any revolving credit facility
unless such Indebtedness has been permanently repaid and has not been replaced)
on the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for such
period shall be calculated on a pro forma basis as if such discharge had
occurred on the first day of such period and as if the Company or such
Restricted Subsidiary had not earned the interest income actually earned during
such period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;


 


(3) if since the
beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, EBITDA for such period shall be reduced by an
amount equal to EBITDA (if positive) directly attributable to the assets which
are the subject of such Asset Disposition for such period, or increased by an
amount equal to EBITDA (if negative), directly attributable thereto for such
period and Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale);


 


(4) if since the
beginning of such period the Company or any Restricted Subsidiary (by merger or
otherwise) shall have made an Investment in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or an acquisition of assets,
including any acquisition of assets occurring in connection with a transaction
requiring a calculation to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition had occurred on the first day of such period; and


 


4














 


(5) if since the
beginning of such period any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Disposition, any
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (3) or (4) above if made by the Company or a
Restricted Subsidiary during such period, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto as if such Asset Disposition, Investment or acquisition had occurred on
the first day of such period.


 


For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting Officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of
12 months). If any Indebtedness is Incurred under a revolving credit
facility and is being given pro forma effect, the interest on such Indebtedness
shall be calculated based on the average daily balance of such Indebtedness for
the four fiscal quarters subject to the pro forma calculation to the extent
that such Indebtedness was Incurred solely for working capital purposes.


 


“Consolidated Interest
Expense” means, for any period, the total interest expense of the Company and
its consolidated Restricted Subsidiaries, plus, to the extent not included in
such total interest expense, and to the extent incurred by the Company or its
Restricted Subsidiaries, without duplication,


 


(1) interest expense
attributable to Capital Lease Obligations;


 


(2) amortization of
debt discount and debt issuance cost;


 


(3) capitalized
interest;


 


(4) non-cash interest
expense;


 


(5) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers’ acceptance financing;


 


(6) net payments
pursuant to Hedging Obligations;


 


(7) dividends accrued
in respect of all Preferred Stock held by Persons other than the Company or a
Wholly Owned Subsidiary (other than dividends payable solely in Capital Stock
(other than Disqualified Stock) of the Company); provided, however, that such
dividends will be multiplied by a fraction the numerator of which is one and
the denominator of which is one minus the effective combined tax rate of the
issuer of such Preferred Stock (expressed as a decimal) for such period (as
estimated by the chief financial officer of the Company in good faith);


 


(8) interest incurred
in connection with Investments in discontinued operations;


 


5

















 


(9) interest accruing
on any Indebtedness of any other Person to the extent such Indebtedness is
Guaranteed by (or secured by the assets of) the Company or any Restricted
Subsidiary; and


 


(10) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than the Company) in connection with Indebtedness
Incurred by such plan or trust.


 


“Consolidated
Net Income” means, for any period, the net income of the Company and its
consolidated Subsidiaries; provided, however, that there shall not be included
in such Consolidated Net Income:


 


(1) any net income of
any Person (other than the Company) if such Person is not a Restricted
Subsidiary, except that:


 


(A) subject to the exclusion contained
in clause (4) below, the Company’s equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up to
the aggregate amount of cash actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution paid to
a Restricted Subsidiary, to the limitations contained in clause (3) below);
and


 


(B) the Company’s equity in a net loss
of any such Person for such period shall be included in determining such
Consolidated Net Income;


 


(2) any net income (or
loss) of any Person acquired by the Company or a Subsidiary in a pooling of
interests transaction (or any transaction accounted for in a manner similar to
a pooling of interests) for any period prior to the date of such acquisition;


 


(3) any net income of
any Restricted Subsidiary if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the
Company, except that:


 


(A) subject to the exclusion contained
in clause (4) below, the Company’s equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company or another Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to another Restricted Subsidiary, to the
limitation contained in this clause); and


 


(B) the Company’s equity in a net loss
of any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;


 


(4) any gain (or loss)
realized upon the sale or other disposition of any assets of the Company, its
consolidated Subsidiaries or any other Person (including pursuant to any
sale-and-leaseback arrangement) which are not sold or otherwise disposed of in
the ordinary course of business and any gain (or loss) realized upon the sale
or other disposition of any Capital Stock of any Person;


 


(5) extraordinary gains
or losses; and


 


6

















 


(6) the cumulative
effect of a change in accounting principles;


 


in each case, for such
period. Notwithstanding the foregoing, for the purpose of Section 4.04
only, there shall be excluded from Consolidated Net Income any repurchases,
repayments or redemptions of Investments, proceeds realized on the sale of
Investments or return of capital to the Company or a Restricted Subsidiary to
the extent such repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under such Section pursuant
to Section 4.04(a)(3)(D).


 


“Credit
Agreement” means the Credit Agreement to be entered into by and among the
Company, certain of its Subsidiaries, the lenders referred to therein, The Bank
of New York, as Administrative Agent, and Wachovia Capital Markets LLC, as
Syndication Agent, together with the related documents thereto (including the
term loans and revolving loans thereunder, any guarantees and security
documents), as amended, extended, renewed, restated, supplemented or otherwise
modified (in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions) from time to time, and any
agreement (and related document) governing Indebtedness incurred to Refinance,
in whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.


 


“Currency
Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement with respect to currency values.


 


“Default”
means any event which is, or after notice or passage of time or both would be,
an Event of Default.


 


“Designated
Senior Indebtedness”, with respect to a Person, means (1) the Bank
Indebtedness and (2) any other Senior Indebtedness of such Person which,
at the date of determination, has an aggregate principal amount outstanding of,
or under which, at the date of determination, the holders thereof are committed
to lend up to, at least $25.0 million and is specifically designated by
such Person in the instrument evidencing or governing such Senior Indebtedness
as “Designated Senior Indebtedness” for purposes of this Indenture.


 


“Disqualified
Stock” means, with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder) or upon the happening of any
event:


 


(1) matures or is
mandatorily redeemable (other than redeemable only for Capital Stock of such
Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise;


 


(2) is convertible or
exchangeable at the option of the holder for Indebtedness or Disqualified
Stock; or


 


(3) is mandatorily
redeemable or must be purchased upon the occurrence of certain events or otherwise,
in whole or in part;


 


in each case on or prior to
the first anniversary of the Stated Maturity of the Securities; provided,
however, that any Capital Stock that would not constitute Disqualified Stock
but for provisions thereof giving holders thereof the right to require such
Person to purchase or redeem such Capital Stock upon the occurrence of an
“asset sale” or “change of control” occurring prior to the first anniversary of
the Stated Maturity of the Securities shall not constitute Disqualified Stock
if 


 


7

















 


(1) the “asset sale” or
“change of control” provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the terms applicable to the
Securities in Sections 4.06 and 4.10 of this Indenture and (2) any
such requirement only becomes operative after compliance with such terms
applicable to the Securities, including the purchase of any Securities tendered
pursuant thereto.


 


The
amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms
of such Disqualified Stock as if such Disqualified Stock were redeemed, repaid
or repurchased on any date on which the amount of such Disqualified Stock is to
be determined pursuant to this Indenture; provided, however, that if such
Disqualified Stock could not be required to be redeemed, repaid or repurchased
at the time of such determination, the redemption, repayment or repurchase price
will be the book value of such Disqualified Stock as reflected in the most
recent financial statements of such Person.


 


“EBITDA”
for any period means the sum of Consolidated Net Income, plus the following,
without duplication, to the extent deducted in calculating such Consolidated
Net Income:


 


(1) all income tax
expense of the Company and its consolidated Restricted Subsidiaries;


 


(2) Consolidated
Interest Expense;


 


(3) depreciation and
amortization expense of the Company and its consolidated Restricted
Subsidiaries (excluding amortization expense attributable to a prepaid
operating activity item that was paid in cash in a prior period);


 


(4) all other non-cash
charges of the Company and its consolidated Restricted Subsidiaries (excluding
any such non-cash charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period);


 


(5) any fees, charges
or other expenses made or incurred in connection with the Transactions, in an
aggregate amount not to exceed $5.0 million; and


 


(6) any non-cash
expenses attributable to grants or exercises of employee stock options or
equity compensation arrangements;


 


in each case for such
period. Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and non-cash
charges of, a Restricted Subsidiary shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion, including by
reason of minority interests) that the net income or loss of such Restricted
Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
stockholders.


 


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


 


“Foreign
Subsidiary” means any Restricted Subsidiary of the Company that is not
organized under the laws of the United States of America or any State thereof
or the District of Columbia.


 


8

















 


“GAAP”
means generally accepted accounting principles in the United States of America
as in effect as of the Issue Date, including those set forth in:


 


(1) the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants;


 


(2) statements and
pronouncements of the Financial Accounting Standards Board;


 


(3) such other
statements by such other entity as approved by a significant segment of the
accounting profession; and


 


(4) the rules and
regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from the accounting staff of the SEC. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.


 


“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any Person and any obligation,
direct or indirect, contingent or otherwise, of such Person:


 


(1) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
of such Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or otherwise); or


 


(2) entered into for
the purpose of assuring in any other manner the obligee of such Indebtedness of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part);


 


provided, however, 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. The term “Guarantor” shall mean any Person Guaranteeing
any obligation.


 


“Guaranty
Agreement” means a supplemental indenture, in a form satisfactory to the
Trustee, pursuant to which a Subsidiary Guarantor guarantees the Company’s
obligations with respect to the Securities on the terms provided for in this
Indenture.


 


“Hedging
Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement or Commodity Price Protection
Agreement.


 


“Holder”
or “Securityholder” means the Person in whose name a Security is registered on
the Registrar’s books.


 


“Incur”
means issue, assume, Guarantee, incur or otherwise become liable for; provided,
however, that any Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be Incurred by such Person at the time it
becomes a Restricted Subsidiary. The term “Incurrence” when used as a noun
shall have a correlative meaning. Solely for purposes of determining compliance
with Section 4.03:


 


9

















 


(1) amortization of
debt discount or the accretion of principal with respect to a non-interest
bearing or other discount security;


 


(2) the payment of
regularly scheduled interest in the form of additional Indebtedness of the same
instrument or the payment of regularly scheduled dividends on Capital Stock in
the form of additional Capital Stock of the same class and with the same terms;
and


 


(3) the obligation to
pay a premium in respect of Indebtedness arising in connection with the
issuance of a notice of redemption or the making of a mandatory offer to
purchase such Indebtedness,


 


shall not be deemed to be
the Incurrence of Indebtedness.


 


“Indebtedness”
means, with respect to any Person on any date of determination (without
duplication):


 


(1) the principal in
respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable, including, in each case,
any premium on such indebtedness to the extent such premium has become due and
payable;


 


(2) all Capital Lease
Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person;


 


(3) all obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business);


 


(4) all obligations of
such Person for the reimbursement of any obligor on any letter of credit,
bankers’ acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in clauses (1) through (3) above) entered into in the
ordinary course of business of such Person to the extent such letters of credit
are not drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following payment on the letter
of credit);


 


(5) the amount of all
obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock of such Person or, with respect to any
Preferred Stock of any Subsidiary of such Person, the principal amount of such
Preferred Stock to be determined in accordance with this Indenture (but
excluding, in each case, any accrued dividends);


 


(6) all obligations of
the type referred to in clauses (1) through (5) of other Persons and
all dividends of other Persons for the payment of which, in either case, such
Person is responsible or liable, directly or indirectly, as obligor, guarantor
or otherwise, including by means of any Guarantee;


 


(7) all obligations of
the type referred to in clauses (1) through (6) of other Persons
secured by any Lien on any property or asset of such Person (whether or not
such obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the fair market value of such property or assets and
the amount of the obligation so secured; and


 


10

















 


(8) to the extent not
otherwise included in this definition, Hedging Obligations of such Person.


 


Notwithstanding the
foregoing, in connection with the purchase by the Company or any Restricted
Subsidiary of any business, the term “Indebtedness” shall exclude post-closing
payment adjustments to which the seller may become entitled to the extent such
payment is determined by a final closing balance sheet or such payment depends
on the performance of such business after the closing; provided, however, that,
at the time of closing, the amount of any such payment is not determinable and,
to the extent such payment thereafter becomes fixed and determined, the amount
is paid within 30 days thereafter.


 


The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all obligations as described above; provided, however,
that in the case of Indebtedness sold at a discount, the amount of such
Indebtedness at any time will be the accreted value thereof at such time.


 


“Indenture” means this Indenture as amended or
supplemented from time to time.


 


“Independent
Qualified Party” means an
investment banking firm, accounting firm or appraisal firm of national
standing; provided, however, that such firm is not an Affiliate of the Company.


 


“Interest
Rate Agreement” means any
interest rate swap agreement, interest rate cap agreement or other financial
agreement or arrangement with respect to exposure to interest rates.


 


“Investment”
in any Person means any direct or indirect advance, loan (other than advances
to customers in the ordinary course of business that are recorded as accounts
receivable on the balance sheet of the lender) or other extensions of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person. If the Company or any Restricted Subsidiary issues, sells or
otherwise disposes of any Capital Stock of a Person that is a Restricted
Subsidiary such that, after giving effect thereto, such Person is no longer a
Restricted Subsidiary, any Investment by the Company or any Restricted
Subsidiary in such Person remaining after giving effect thereto will be deemed
to be a new Investment at such time. The acquisition by the Company or any
Restricted Subsidiary of a Person that holds an Investment in a third Person
will be deemed to be an Investment by the Company or such Restricted Subsidiary
in such third Person at such time. Except as otherwise provided for herein, the
amount of an Investment shall be its fair market value at the time the
Investment is made and without giving effect to subsequent changes in value.


 


For
purposes of the definition of “Unrestricted Subsidiary”, the definition of
“Restricted Payment” and Section 4.04:


 


(1) “Investment” shall
include the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets of any Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as
a Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if
positive) equal to (A) the Company’s “Investment” in such Subsidiary at
the time of 


 


11

















 


such
redesignation less (B) the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and


 


(2) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors.


 


“Issue
Date” means May 4, 2004.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which banking institutions are
not required to be open in the State of New York.


 


“Lien”
means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any conditional sale or other title retention agreement or
lease in the nature thereof).


 


“Marketable
Securities” means (i) publicly traded equity securities that are listed
for trading on a national securities exchange or are quoted on the Nasdaq
National Market and publicly traded debt securities that are rated in one of
the three highest rating categories by either Standard & Poor’s or
Moody’s and (ii) any securities that are Temporary Cash Investments.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor to its rating
agency business.


 


“Net
Available Cash” from an Asset Disposition means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and
proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:


 


(1) all legal, title
and recording tax expenses, commissions and other fees and expenses incurred,
and all Federal, state, provincial, foreign and local taxes required to be
accrued as a liability under GAAP, as a consequence of such Asset Disposition;


 


(2) all payments made
on any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms,
or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset Disposition;


 


(3) all distributions
and other payments required to be made to minority interest holders in
Restricted Subsidiaries as a result of such Asset Disposition;


 


(4) the deduction of
appropriate amounts provided by the seller as a reserve, in accordance with
GAAP, against any liabilities associated with the property or other assets
disposed in such Asset Disposition and retained by the Company or any
Restricted Subsidiary after such Asset Disposition; and


 


12

















 


(5) any portion of the
purchase price from an Asset Disposition placed in escrow, whether as a reserve
for adjustment of the purchase price, for satisfaction of indemnities in
respect of such Asset Disposition or otherwise in connection with that Asset
Disposition; provided, however, that upon the termination of such escrow, Net
Available Cash will be increased by any portion of funds in the escrow that are
released to the Company or any Restricted Subsidiary.


 


“Net
Cash Proceeds”, with respect to any issuance or sale of Capital Stock or
Indebtedness, means the cash proceeds of such issuance or sale net of
attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.


 


“Net
Fair Market Value”, with respect to Marketable Securities received by the
Company in respect of the issuance or sale of its Capital Stock, means the
value of such Marketable Securities that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress or
necessity of either party, determined in good faith by the Board of Directors
of the Company, net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with such issuance or sale and net
of taxes paid or payable as a result thereof.


 


“Obligations”
means, with respect to any Indebtedness, all obligations for principal,
premium, interest, penalties, fees, indemnifications, reimbursements, and other
amounts payable pursuant to the documentation governing such Indebtedness.


 


“Offering
Circular” means the final offering circular dated as of April 29, 2004 and
used in connection with the offering of the Initial Securities issued on the
Issue Date.


 


“Officer”
means the Chairman of the Board, the President, any Vice President, the
Treasurer or the Secretary of the Company.


 


“Officers’
Certificate” means a certificate signed by two Officers.


 


“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.


 


“Permitted
Holders” means Robert B. Daugherty and (1) entities controlled by Robert
B. Daugherty, (2) charitable foundations established by Robert B.
Daugherty, (3) trusts for the benefit of Robert B. Daugherty and/or his
family members and (4) the estate and heirs of Robert B. Daugherty. Except
for a Permitted Holder specifically identified by name, in determining whether
Voting Stock is owned by a Permitted Holder, only Voting Stock acquired by a
Permitted Holder in its described capacity will be treated as “beneficially
owned” by such Permitted Holder.


 


“Permitted
Investment” means an Investment by the Company or any Restricted Subsidiary in:


 


(1) the Company, a
Restricted Subsidiary or a Person that will, upon the making of such
Investment, become a Restricted Subsidiary; provided, however, that the primary
business of such Restricted Subsidiary is a Related Business;


 


13

















 


(2) another Person if,
as a result of such Investment, such other Person is merged or consolidated
with or into, or transfers or conveys all or substantially all its assets to,
the Company or a Restricted Subsidiary; provided, however, that such Person’s
primary business is a Related Business;


 


(3) cash and Temporary
Cash Investments;


 


(4) receivables owing
to the Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include
such concessionary trade terms as the Company or any such Restricted Subsidiary
deems reasonable under the circumstances;


 


(5) payroll, travel and
similar advances to cover matters that are expected at the time of such
advances ultimately to be treated as expenses for accounting purposes and that
are made in the ordinary course of business;


 


(6) loans or advances
to employees made in the ordinary course of business consistent with past
practices of the Company or such Restricted Subsidiary;


 


(7) stock, obligations
or securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments;


 


(8) any Person to the
extent such Investment represents the non-cash portion of the consideration
received for (A) an Asset Disposition as permitted pursuant to Section 4.06
or (B) a disposition of assets not constituting an Asset Disposition;


 


(9) any Person where
such Investment was acquired by the Company or any of its Restricted
Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable
or (B) as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;


 


(10) any Person to the
extent such Investments consist of prepaid expenses, negotiable instruments
held for collection and lease, utility and workers’ compensation, performance
and other similar deposits made in the ordinary course of business by the
Company or any Restricted Subsidiary;


 


(11) any Person to the
extent such Investments consist of Hedging Obligations otherwise permitted
under Section 4.03;


 


(12) any Person to the
extent such Investments existed on the Issue Date, and any extension,
modification or renewal of any such Investments existing on the Issue Date, but
only to the extent not involving additional advances, contributions or other
Investments of cash or other assets or other increases thereof (other than as a
result of the accrual or accretion of interest or original issue discount or
the issuance of pay-in-kind securities, in each case, pursuant to the terms of
such Investment as in effect on the Issue Date); and


 


14














 


(13) Persons to the extent
such Investments, when taken together with all other Investments made pursuant
to this clause (13) outstanding on the date such Investment is made, do not
exceed $15.0 million.


 


“Person”
means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.


 


“Preferred
Stock”, as applied to the Capital Stock of any Person, means Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.


 


“Principal”
of a Security means the principal of the Security plus the premium, if any,
payable on the Security which is due or overdue or is to become due at the
relevant time.


 


“Public
Equity Offering” means an underwritten primary public offering of common stock
of the Company pursuant to an effective registration statement under the
Securities Act.


 


“Refinance”
means, in respect of any Indebtedness, to refinance, extend, renew, refund,
repay, prepay, purchase, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. “Refinanced”
and “Refinancing” shall have correlative meanings.


 


“Refinancing
Indebtedness” means Indebtedness that Refinances any Indebtedness of the
Company or any Restricted Subsidiary existing on the Issue Date or Incurred in
compliance with this Indenture, including Indebtedness that Refinances
Refinancing Indebtedness; provided, however, that:


 


(1) such Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced;


 


(2) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced;


 


(3) such Refinancing
Indebtedness has an aggregate principal amount (or if Incurred with original
issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if Incurred with original issue discount, the
aggregate accreted value) then outstanding (plus fees and expenses, including
any premium and defeasance costs) under the Indebtedness being Refinanced; and


 


(4) if the Indebtedness
being Refinanced is subordinated in right of payment to the Securities, such
Refinancing Indebtedness is subordinated in right of payment to the Securities
at least to the same extent as the Indebtedness being Refinanced;


 


provided further, however,
that Refinancing Indebtedness shall not include (A) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company or (B) Indebtedness
of the Company or a Restricted Subsidiary that Refinances Indebtedness of an
Unrestricted Subsidiary.


 


15

















 


“Related
Business” means any business in which the Company or any of the Restricted
Subsidiaries was engaged on the Issue Date and any business related, ancillary
or complementary to such business as determined by the Board of Directors in
good faith.


 


“Representative”
means, with respect to a Person, any trustee, agent or representative (if any)
for an issue of Senior Indebtedness of such Person.


 


“Restricted
Payment” with respect to any Person means:


 


(1) the declaration or
payment of any dividends or any other distributions of any sort in respect of
its Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct or
indirect holders of its Capital Stock (other than (A) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock), (B) dividends or distributions payable solely to the Company or a
Restricted Subsidiary and (C) pro rata dividends or other distributions
made by a Subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a Subsidiary
that is an entity other than a corporation));


 


(2) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company held by any Person (other than by a Restricted Subsidiary) or of
any Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than by a Restricted Subsidiary), including in connection with
any merger or consolidation and including the exercise of any option to
exchange any Capital Stock (other than into Capital Stock of the Company that
is not Disqualified Stock);


 


(3) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations of the Company or any Subsidiary
Guarantor (other than (A) from the Company or a Restricted Subsidiary or (B) the
purchase, repurchase, redemption, defeasance or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within
one year of the date of such purchase, repurchase, redemption, defeasance or
other acquisition); or


 


(4) the making of any
Investment (other than a Permitted Investment) in any Person.


 


“Restricted
Subsidiary” means any Subsidiary of the Company that is not an Unrestricted
Subsidiary.


 


“Sale/Leaseback
Transaction” means an arrangement relating to property owned by the Company or
a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company
or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“Secured
Indebtedness” means any Indebtedness of the Company or a Subsidiary Guarantor,
as applicable, secured by a Lien.


 


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


 


“Senior
Indebtedness” means with respect to any Person:


 


16

















 


(1) Indebtedness of
such Person, whether outstanding on the Issue Date or thereafter Incurred; and


 


(2) all other
Obligations of such Person (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to such Person
whether or not post-filing interest is allowed in such proceeding) in respect
of Indebtedness described in clause (1) above,


 


unless, in the case of
clauses (1) and (2), in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
Indebtedness or other Obligations are subordinate or pari passu in right of
payment to the Securities or the Subsidiary Guaranty of such Person, as the
case may be; provided, however, that Senior Indebtedness shall not include:


 


(1) any obligation of
such Person to the Company or any Subsidiary;


 


(2) except for purposes
of Section 4.03(e)(2), any liability for Federal, state, local or other
taxes owed or owing by such Person;


 


(3) except for purposes
of Section 4.03(e)(2), any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities);


 


(4) any Indebtedness or
other Obligation of such Person which is subordinate or junior in any respect
to any other Indebtedness or other Obligation of such Person; or


 


(5) that portion of any
Indebtedness which at the time of Incurrence is Incurred in violation of this
Indenture.


 


“Senior
Subordinated Indebtedness” means, with respect to a Person, the Securities (in
the case of the Company), the Subsidiary Guaranty (in the case of a Subsidiary
Guarantor) and any other Indebtedness of such Person that specifically provides
that such Indebtedness is to rank pari passu with the Securities or such
Subsidiary Guaranty, as the case may be, in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of such Person which is not Senior Indebtedness of such Person.


 


“Significant
Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.


 


“Standard &
Poor’s” means Standard & Poor’s, a division of The McGraw-Hill
Companies, Inc., and any successor to its rating agency business.


 


“Stated
Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).


 


“Subordinated
Obligation” means, with respect to a Person, any Indebtedness of such Person
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or


 


17

















 


junior in right of payment
to the Securities or a Subsidiary Guaranty of such Person, as the case may be,
pursuant to a written agreement to that effect.


 


“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of
shares of Voting Stock is at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such
Person.


 


“Subsidiary
Guarantor” means each Subsidiary of the Company that executes this Indenture as
a guarantor on the Issue Date and each other Subsidiary of the Company that
thereafter Guarantees the Securities pursuant to the terms of this Indenture.


 


“Subsidiary
Guaranty” means a Guarantee by a Subsidiary Guarantor of the Company’s
obligations with respect to the Securities.


 


“Temporary
Cash Investments” means any of the following:


 


(1) any investment in
direct obligations of the United States of America or any agency thereof or
obligations guaranteed by the United States of America or any agency thereof;


 


(2) investments in
demand and time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the United
States of America, any State thereof or any foreign country recognized by the
United States of America, and which bank or trust company has capital, surplus
and undivided profits aggregating in excess of $50.0 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated
“A” (or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act) or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor;


 


(3) repurchase
obligations with a term of not more than 30 days for underlying securities
of the types described in clause (1) above entered into with a bank
meeting the qualifications described in clause (2) above;


 


(4) investments in
commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America or
any foreign country recognized by the United States of America with a rating at
the time as of which any investment therein is made of “P-1” (or higher)
according to Moody’s or “A-1” (or higher) according to Standard &
Poor’s;


 


(5) investments in securities
with maturities of six months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States
of America, or by any political subdivision or taxing authority thereof, and
rated at least “A” by Standard & Poor’s or “A” by Moody’s; and


 


(6) investments in
money market funds that invest substantially all their assets in securities of
the types described in clauses (1) through (5) above.


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the Issue Date.


 


18

















 


“Transactions”
means (A) the acquisition by the Company of Newmark International, Inc.
and Pfleiderer Leasing USA, Inc. and the Incurrence of Indebtedness in
connection with the financing thereof, (B) the entrance into the credit
agreement, dated May 2004, by and among the Company and The Bank of New
York, as Administrative Agent, and Wachovia Capital Markets LLC, as Syndication
Agent, (C) the issuance of the Securities and (D) the use of proceeds
of the Securities and borrowings under such credit agreement as described under
the caption “Use of Proceeds” in the Offering Circular.


 


“Trustee”
means the party named as such in this Indenture until a successor replaces it
and, thereafter, means the successor.


 


“Trust
Officer” means the Chairman of the Board, the President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.


 


“Uniform
Commercial Code” means the New York Uniform Commercial Code as in effect from
time to time.


 


“Unrestricted
Subsidiary” means:


 


(1) any Subsidiary of
the Company that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner provided below;
and


 


(2) any Subsidiary of
an Unrestricted Subsidiary.


 


The
Board of Directors may designate any Subsidiary of the Company (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary
has assets greater than $1,000, such designation would be permitted under Section 4.04.


 


The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation (A) the Company could Incur $1.00 of additional Indebtedness
under Section 4.03(a) and (B) no Default shall have occurred and
be continuing. Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the
foregoing provisions.


 


“U.S.
Dollar Equivalent” means, with respect to any monetary amount in a currency
other than U.S. dollars, at any time for determination thereof, the amount of
U.S. dollars obtained by converting such foreign currency involved in such
computation into U.S. dollars at the spot rate for the purchase of U.S. dollars
with the applicable foreign currency as published in The Wall Street Journal in
the “Exchange Rates” column under the heading “Currency Trading” on the date
two Business Days prior to such determination.


 


Except
as described in Section 4.03, whenever it is necessary to determine
whether the Company has complied with any covenant in this Indenture or a
Default has occurred and an amount is expressed in a currency other than U.S.
dollars, such amount will be treated as the U.S. Dollar Equivalent determined
as of the date such amount is initially determined in such currency.


 


19

















 


“U.S.
Government Obligations” means direct obligations (or certificates representing
an ownership interest in such obligations) of the United States of America
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged and which are
not callable at the issuer’s option.


 


“Voting
Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof.


 


“Wholly
Owned Subsidiary” means a Restricted Subsidiary all the Capital Stock of which
(other than directors’ qualifying shares) is owned by the Company or one or
more other Wholly Owned Subsidiaries.


 


SECTION 1.02.
Other Definitions.


 


	
  Terms

  	
   

  	
  Defined in Section 

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.07(a)

  
	
  “Bankruptcy
  Law”

  	
   

  	
  6.01

  
	
  “Blockage
  Notice”

  	
   

  	
  10.03;
  12.03

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.10(b)

  
	
  “covenant
  defeasance option”

  	
   

  	
  8.01(b)

  
	
  “Custodian”

  	
   

  	
  6.01

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Guaranteed
  Obligations”

  	
   

  	
  11.01

  
	
  “Initial
  Lien”

  	
   

  	
  4.11

  
	
  “legal
  defeasance option”

  	
   

  	
  8.01(b)

  
	
  “Offer”

  	
   

  	
  4.06(b)

  
	
  “Offer
  Amount”

  	
   

  	
  4.06(c)(2)

  
	
  “Offer
  Period”

  	
   

  	
  4.06(c)(2)

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Blockage Period”

  	
   

  	
  10.03;
  12.03

  
	
  “Payment
  Default”

  	
   

  	
  10.03;
  12.03

  
	
  “Purchase
  Date”

  	
   

  	
  4.06(c)(1)

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Successor
  Company”

  	
   

  	
  5.01(a)(1)

  



 


SECTION 1.03.
Incorporation by Reference of Trust Indenture Act. This Indenture is subject to
the mandatory provisions of the TIA which are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the following
meanings:


 


“Commission”
means the SEC;


 


20

















 


“indenture
securities” means the Securities and the Subsidiary Guaranties;


 


“indenture
security holder” means 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, each Subsidiary Guarantor and
any other obligor on the indenture securities.


 


All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.


 


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


 


(1) a term has the
meaning assigned to it;


 


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


 


(3) “or” is not
exclusive;


 


(4) “including” means
including without limitation;


 


(5) words in the
singular include the plural and words in the plural include the singular;


 


(6) unsecured
Indebtedness shall not be deemed to be subordinate or junior to Secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;


 


(7) Secured
Indebtedness shall not be deemed to be subordinate or junior to any other
secured Indebtedness merely because it has a junior priority with respect to
the same collateral;


 


(8) the principal amount
of any noninterest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP;


 


(9) the principal
amount of any Preferred Stock shall be (A) the maximum liquidation value
of such Preferred Stock or (B) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock, whichever is
greater; and


 


(10) all references to
the date the Securities were originally issued shall refer to the Issue Date.


 


Article 2


 


The Securities


 


SECTION 2.01.
Form and Dating. Provisions relating to the Initial Securities, the
Private Exchange Securities and the Exchange Securities are set forth in the Rule 144A/Regulation S/IAI
Appendix attached hereto (the “Appendix”) which is hereby


 


21

















 


incorporated in, and
expressly made part of, this Indenture. The Initial Securities and the
Trustee’s certificate of authentication shall be substantially in the form of Exhibit 1
to the Appendix which is hereby incorporated in, and expressly made a part of,
this Indenture. The Exchange Securities, the Private Exchange Securities and
the Trustee’s certificate of authentication shall be substantially in the form
of Exhibit A, which is hereby incorporated in and expressly made a part of
this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication. The terms of the Securities set forth in
the Appendix and Exhibit A are part of the terms of this Indenture.


 


SECTION 2.02.
Execution and Authentication. Two Officers shall sign the Securities for the
Company by manual or facsimile signature. The Company’s seal shall be
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.


 


If
an Officer whose signature is on a Security no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.


 


A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under
this Indenture.


 


The
Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate the Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.


 


SECTION 2.03.
Registrar and Paying Agent. The Company shall maintain an office or agency
where Securities may be presented for registration of transfer or for exchange
(the “Registrar”) and an office or agency where Securities may be presented for
payment (the “Paying Agent”). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term “Paying Agent”
includes any additional paying agent.


 


The
Company shall enter into an appropriate agency agreement with any Registrar,
Paying Agent or co-registrar not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 7.07.
The Company or any Wholly Owned Subsidiary incorporated or organized within the
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.


 


The
Company initially appoints the Trustee as Registrar and Paying Agent in
connection with the Securities.


 


SECTION 2.04.
Paying Agent To Hold Money in Trust. Prior to each due date of the principal
and interest on any Security, the Company shall deposit with the Paying Agent a
sum sufficient to pay such principal and interest when so becoming due. The
Company shall require


 


22

















 


each Paying Agent (other
than the Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Securityholders or the Trustee all money held by the Paying
Agent for the payment of principal of or interest on the Securities and shall
notify the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.


 


SECTION 2.05.
Securityholder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee, in writing at least five Business Days before
each interest payment date and at such other times as the Trustee may request
in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders.


 


SECTION 2.06.
Transfer and Exchange. The Securities shall be issued in registered form and
shall be transferable only upon the surrender of a Security for registration of
transfer. When a Security is presented to the Registrar or a co-registrar with
a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of this Indenture and Section 8-401(1) of
the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met.


 


SECTION 2.07.
Replacement Securities. If a mutilated Security is surrendered to the Registrar
or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may
suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.


 


Every
replacement Security is an additional Obligation of the Company.


 


SECTION 2.08.
Outstanding Securities. Securities outstanding at any time are all Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.


 


If
a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.


 


If
the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities (or
portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture, then on and after that date


 


23

















 


such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.


 


SECTION 2.09.
Temporary Securities. Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities and deliver them in exchange
for temporary Securities.


 


SECTION 2.10.
Cancellation. The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel and destroy (subject to the
record retention requirements of the Exchange Act) all Securities surrendered
for registration of transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Company unless the Company directs the
Trustee to deliver canceled Securities to the Company. The Company may not
issue new Securities to replace Securities it has redeemed, paid or delivered
to the Trustee for cancellation.


 


SECTION 2.11.
Defaulted Interest. If the Company defaults in a payment of interest on the
Securities, the Company shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful) in any lawful manner. The Company may
pay the defaulted interest to the persons who are Securityholders on a
subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail to each Securityholder a notice that states the
special record date, the payment date and the amount of defaulted interest to
be paid.


 


SECTION 2.12.
CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.


 


SECTION 2.13.
Issuance of Additional Securities. After the Issue Date, the Company shall be
entitled, subject to its compliance with Section 4.03, to issue Additional
Securities under this Indenture, which Securities shall have identical terms
and the same CUSIP numbers as the Initial Securities issued on the Issue Date,
other than with respect to the date of issuance and issue price. All the
Securities issued under this Indenture shall be treated as a single class for
all purposes of this Indenture, including waivers, amendments, redemptions and
offers to purchase.


 


With
respect to any Additional Securities, the Company shall set forth in a
resolution of the Board of Directors and an Officers’ Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:


 


(1) the aggregate
principal amount of such Additional Securities to be authenticated and
delivered pursuant to this Indenture and the provision of Section 4.03
that the Company is relying on to issue such Additional Securities;


 


24














 


(2) the issue price,
the issue date and the CUSIP number of such Additional Securities; provided,
however, that no Additional Securities may be issued at a price that would
cause such Additional Securities to have “original issue discount” within the
meaning of Section 1273 of the Code; and


 


(3) whether such
Additional Securities shall be Initial Securities or shall be issued in the
form of Exchange Securities as set forth in Exhibit A.


 


Article 3


 


Redemption


 


SECTION 3.01.
Notices to Trustee. If the Company elects to redeem Securities pursuant to
paragraph 5 of the Securities, it shall notify the Trustee in writing of the
redemption date, the principal amount of Securities to be redeemed and the
paragraph of the Securities pursuant to which the redemption will occur.


 


The
Company shall give each notice to the Trustee provided for in this Section at
least 60 days before the redemption date unless the Trustee consents to a
shorter period. Such notice shall be accompanied by an Officers’ Certificate
and an Opinion of Counsel from the Company to the effect that such redemption
shall comply with the conditions herein.


 


SECTION 3.02.
Selection of Securities to Be Redeemed. If fewer than all the Securities are to
be redeemed, the Trustee shall select the Securities to be redeemed pro rata to
the extent practicable (subject to the procedures of the Depository). The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the principal
of Securities that have denominations larger than $1,000. Securities and
portions of them the Trustee selects shall be in principal amounts of $1,000 or
a whole multiple of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company promptly of the Securities
or portions of Securities to be redeemed.


 


SECTION 3.03.
Notice of Redemption. At least 30 days but not more than 60 days before a
date for redemption of Securities, the Company shall mail a notice of
redemption by first-class mail to each Holder of Securities to be redeemed at
such Holder’s registered address.


 


The
notice shall identify the Securities to be redeemed and shall state:


 


(1) the redemption
date;


 


(2) the redemption
price;


 


(3) the name and
address of the Paying Agent;


 


(4) that Securities
called for redemption must be surrendered to the Paying Agent to collect the
redemption price;


 


(5) if fewer than all
the outstanding Securities are to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed;


 


(6) that, unless the
Company defaults in making such redemption payment or the Paying Agent is
prohibited from making such payment pursuant to the terms of this Indenture,
interest 


 


25

















 


on
Securities (or portion thereof) called for redemption ceases to accrue on and
after the redemption date; and


 


(7) that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Securities.


 


At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense. In such event, the Company shall
provide the Trustee with the information required by this Section.


 


SECTION 3.04.
Effect of Notice of Redemption. Once notice of redemption is mailed, Securities
called for redemption become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price stated in the notice, plus
accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
interest payment date). Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.


 


SECTION 3.05.
Deposit of Redemption Price. Prior to the redemption date, the Company shall
deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on
that date other than Securities or portions of Securities called for redemption
which have been delivered by the Company to the Trustee for cancellation.


 


SECTION 3.06.
Securities Redeemed in Part. Upon surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the
Holder (at the Company’s expense) a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.


 


Article 4


 


Covenants


 


SECTION 4.01.
Payment of Securities. The Company shall promptly pay the principal of and
interest on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture.


 


The
Company shall pay interest on overdue principal at the rate specified therefor
in the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.


 


SECTION 4.02.
SEC Reports. Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall file with the SEC (subject to the next sentence) and provide the Trustee
and Securityholders with such annual and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such reports to be so filed and provided
at the times specified for the filings of such reports under such Sections and
containing all the


 


26

















 


information, audit reports
and exhibits required for such reports. If, at any time, the Company is not
subject to the periodic reporting requirements of the Exchange Act for any
reason, the Company shall nevertheless continue filing the reports specified in
the preceding sentence with the SEC within the time periods required unless the
SEC will not accept such a filing. The Company agrees that it shall not take
any action for the purpose of causing the SEC not to accept any such filings.
If, notwithstanding the foregoing, the SEC will not accept such filings for any
reason, the Company shall post the reports specified in the preceding sentence
on its website within the time periods that would apply if the Company were
required to file those reports with the SEC.


 


At
any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries,
then the quarterly and annual financial information required by the preceding paragraph
shall include a reasonably detailed presentation, either on the face of the
financial statements or in the footnotes thereto, and in “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”, of
the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.


 


In
addition, the Company shall furnish to the Holders of the Securities and to
prospective investors, upon the requests of such Holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as any Securities are not freely transferable under the
Securities Act. The Company also shall comply with the other provisions of TIA
§ 314(a).


 


SECTION 4.03.
Limitation on Indebtedness. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, Incur, directly or indirectly, any
Indebtedness; provided, however, that the Company and the Subsidiary Guarantors
shall be entitled to Incur Indebtedness if, on the date of such Incurrence and
after giving effect thereto on a pro forma basis, the Consolidated Coverage
Ratio exceeds 2.0 to 1.


 


(b) Notwithstanding the
foregoing paragraph (a), the Company and the Restricted Subsidiaries shall be
entitled to Incur any or all of the following Indebtedness:


 


(1) Indebtedness
Incurred by the Company or any Subsidiary Guarantor pursuant to the Credit
Agreement; provided, however, that, after giving effect to any such Incurrence,
the aggregate principal amount of all Indebtedness Incurred under this clause (1) and
then outstanding does not exceed the greater of (A) $225.0 million
less the sum of all principal payments with respect to such Indebtedness
pursuant to Section 4.06(a)(3)(A) and (B) the sum of (i) 65%
of the book value of the inventory of the Company and its Restricted
Subsidiaries and (ii) 85% of the book value of the accounts receivable of
the Company and its Restricted Subsidiaries;


 


(2) Indebtedness owed
to and held by the Company or a Wholly Owned Subsidiary; provided, however,
that (A) any subsequent issuance or transfer of any Capital Stock which
results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary
or any subsequent transfer of such Indebtedness (other than to the Company or a
Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon, (B) if the Company
is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations with
respect to the Securities and (C) if a Subsidiary Guarantor is the obligor
on such Indebtedness, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all obligations of such obligor with respect to its
Subsidiary Guaranty;


 


27

















 


(3) the Securities
(other than any Additional Securities);


 


(4) Indebtedness outstanding
on the Issue Date (other than Indebtedness described in clause (1), (2) or
(3) of this Section 4.03(b));


 


(5) Indebtedness of a
Restricted Subsidiary Incurred and outstanding on or prior to the date on which
such Subsidiary was acquired by the Company (other than Indebtedness Incurred
in connection with, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or was acquired
by the Company); provided, however, that on the date of such acquisition and
after giving pro forma effect thereto, the Company would have been entitled to
Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);


 


(6) Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.03(a) or
pursuant to clause (3), (4) or (5) of this Section 4.03(b) or
this clause (6); provided, however, that to the extent such Refinancing
Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary
Incurred pursuant to clause (5), such Refinancing Indebtedness shall be
Incurred only by such Subsidiary;


 


(7) Hedging Obligations
consisting of (A) Interest Rate Agreements directly related to
Indebtedness permitted to be Incurred by the Company and its Restricted
Subsidiaries pursuant to this Indenture (B) Currency Agreements entered
into in the ordinary course of business for the purpose of mitigating the risk
to the Company or its Subsidiaries of currency fluctuations and not for
speculative purposes and (C) Commodity Price Protection Agreements entered
into in the ordinary course of business for the purpose of mitigating the risk
to the Company or its Subsidiaries of commodity price fluctuations and not for
speculative purposes;


 


(8) Obligations in
respect of performance, bid and surety bonds and completion guarantees provided
by the Company or any Restricted Subsidiary in the ordinary course of business;


 


(9) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided, however, that such Indebtedness is extinguished
within five Business Days of its Incurrence;


 


(10) Indebtedness consisting
of the Subsidiary Guaranty of a Subsidiary Guarantor and any Guarantee by a
Subsidiary Guarantor of Indebtedness Incurred pursuant to Section 4.03(a) or
pursuant to Section 4.03(b)(1), (2), (3) or (4) or pursuant to Section 4.03(b)(6) to
the extent the Refinancing Indebtedness Incurred thereunder directly or
indirectly Refinances Indebtedness Incurred pursuant to Section 4.03(a) or
pursuant to Section 4.03(b)(3) or (4);


 


(11) Indebtedness (including
Capital Lease Obligations and Attributable Debt in respect of Sale/Leaseback
Transactions) Incurred by the Company or any of its Restricted Subsidiaries in
the ordinary course of business to finance the purchase, lease, construction or
improvement of property (real or personal) or equipment (whether through the
direct purchase of assets or the Capital Stock of any Person owning such
assets) within 90 days of such purchase, lease, construction or
improvement, and any Refinancing Indebtedness Incurred to Refinance such
Indebtedness, in an aggregate principal amount which, when taken together with
all other Indebtedness Incurred pursuant to this clause (11) and
outstanding on the date of such Incurrence, does not exceed the greater of (A) $25.0 million
and (B) 5% of the consolidated total 


 


28

















 


tangible
assets of the Company and the Restricted Subsidiaries as of the end of the most
recent fiscal quarter prior to such Incurrence for which internal financial
statements are available;


 


(12) Indebtedness Incurred
by Foreign Subsidiaries which, when taken together with all other Indebtedness
Incurred pursuant to this clause (12) and outstanding on the date of such
Incurrence, does not exceed the greater of (A) $25.0 million and (B) 10%
of the combined total tangible assets of the Foreign Subsidiaries as of the end
of the most recent fiscal quarter prior to such Incurrence for which internal
financial statements are available; and


 


(13) Indebtedness of the
Company or of any Subsidiary Guarantor in an aggregate principal amount which,
when taken together with all other Indebtedness of the Company and the
Subsidiary Guarantors outstanding on the date of such Incurrence (other than
Indebtedness permitted by clauses (1) through (12) of this Section 4.03(b) or
Section 4.03(a)) does not exceed $15.0 million.


 


(c) Notwithstanding the
foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any
Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are
used, directly or indirectly, to Refinance any Subordinated Obligations of the
Company or any Subsidiary Guarantor unless such Indebtedness shall be
subordinated to the Securities or the applicable Subsidiary Guaranty to at
least the same extent as such Subordinated Obligations.


 


(d) For purposes of
determining compliance with this Section 4.03, (1) any Indebtedness
Incurred under the Credit Agreement on the Issue Date will be treated as
Incurred under clause (1) of paragraph (b) above; (2) in the
event that an item of Indebtedness (or any portion thereof) meets the criteria
of more than one of the types of Indebtedness described above, the Company, in
its sole discretion, shall classify such item of Indebtedness (or any portion
thereof) at the time of Incurrence and shall only be required to include the
amount and type of such Indebtedness in one of the above clauses; and (3) the
Company shall be entitled to divide and classify an item of Indebtedness in
more than one of the types of Indebtedness described above.


 


(e) Notwithstanding Section 4.03(a) or
4.03(b), neither the Company nor any Subsidiary Guarantor shall Incur (1) any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Senior Indebtedness of the Company or such Subsidiary Guarantor,
as applicable, unless such Indebtedness is Senior Subordinated Indebtedness or
is expressly subordinated in right of payment to Senior Subordinated
Indebtedness of the Company or such Subsidiary Guarantor, as applicable, or (2) any
Secured Indebtedness that is not Senior Indebtedness of such Person unless
contemporaneously therewith such Person makes effective provision to secure the
Securities or the relevant Subsidiary Guaranty, as applicable, equally and
ratably with such Secured Indebtedness (or on a senior basis to, in the case of
Indebtedness subordinated in right of payment to the Securities or the relevant
Subsidiary Guaranty, as applicable) for so long as such Secured Indebtedness is
secured by a Lien.


 


(f) For purposes of
determining compliance with any U.S. dollar denominated restriction on the
Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a
different currency, the amount of such Indebtedness shall be the U.S. Dollar
Equivalent determined on the date of the Incurrence of such Indebtedness;
provided, however, that if any such Indebtedness denominated in a different
currency is subject to a Currency Agreement with respect to U.S. dollars
covering all principal, premium, if any, and interest payable on such
Indebtedness, the amount of such Indebtedness expressed in U.S. dollars shall
be as provided in such Currency Agreement. The principal amount of any
Refinancing Indebtedness Incurred in 


 


29

















 


the
same currency as the Indebtedness being Refinanced shall be the U.S. Dollar
Equivalent of the Indebtedness Refinanced, except to the extent that (1) such
U.S. Dollar Equivalent was determined based on a Currency Agreement, in which
case the Refinancing Indebtedness shall be determined in accordance with the
preceding sentence, and (2) the principal amount of the Refinancing
Indebtedness exceeds the principal amount of the Indebtedness being Refinanced,
in which case the U.S. Dollar Equivalent of such excess shall be determined on
the date such Refinancing Indebtedness is Incurred.


 


SECTION 4.04.
Limitation on Restricted Payments. (a) The Company shall not, and shall
not permit any Restricted Subsidiary, directly or indirectly, to make a
Restricted Payment if at the time the Company or such Restricted Subsidiary makes
such Restricted Payment:


 


(1) a Default shall
have occurred and be continuing (or would result therefrom);


 


(2) the Company is not
entitled to Incur an additional $1.00 of Indebtedness under Section 4.03(a);
or


 


(3) the aggregate
amount of such Restricted Payment and all other Restricted Payments since the
Issue Date would exceed the sum of (without duplication):


 


(A) 50% of the Consolidated Net Income
accrued during the period (treated as one accounting period) from the beginning
of the fiscal quarter immediately following the fiscal quarter during which the
Issue Date occurs to the end of the most recent fiscal quarter ending prior to
the date of such Restricted Payment for which internal financial statements are
available (or, in case such Consolidated Net Income shall be a deficit, minus
100% of such deficit); plus


 


(B) 100% of the aggregate Net Cash
Proceeds and Net Fair Market Value of Marketable Securities received by the
Company from the issuance or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Issue Date (other than an issuance or sale to a
Subsidiary of the Company and other than an issuance or sale to an employee
stock ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) and 100% of any cash capital
contribution or capital contribution to the extent consisting of Marketable
Securities received by the Company from its shareholders subsequent to the
Issue Date; plus


 


(C) the amount by which Indebtedness of
the Company is reduced on the Company’s balance sheet upon the conversion or
exchange subsequent to the Issue Date of any Indebtedness of the Company
convertible or exchangeable for Capital Stock (other than Disqualified Stock)
of the Company (less the amount of any cash, or the fair value of any other
property, distributed by the Company upon such conversion or exchange);
provided, however, that the foregoing amount shall not exceed the Net Cash
Proceeds received by the Company or any Restricted Subsidiary from the sale of
such Indebtedness (excluding Net Cash Proceeds from sales to a Subsidiary of
the Company or to an employee stock ownership plan or to a trust established by
the Company or any of its Subsidiaries for the benefit of their employees); plus


 


(D) an amount equal to the sum of (i) the
net reduction in the Investments (other than Permitted Investments) made by the
Company or any Restricted Subsidiary in any Person resulting from repurchases,
repayments or redemptions of such Investments by such Person, proceeds realized
on the sale of such Investments and proceeds representing the return of capital
(excluding dividends and distributions), in each case 


 


30

















 


received by the Company or
any Restricted Subsidiary, and (ii) to the extent such Person is an
Unrestricted Subsidiary, the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the fair market value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated
a Restricted Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any such Person or Unrestricted Subsidiary, the amount
of Investments (excluding Permitted Investments) previously made (and treated
as a Restricted Payment) by the Company or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.


 


(b) The provisions of Section 4.04(a) shall
not prohibit:


 


(1) any Restricted
Payment made out of the Net Cash Proceeds of the substantially concurrent sale
of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary
of the Company or an employee stock ownership plan or to a trust established by
the Company or any of its Subsidiaries for the benefit of their employees) or a
substantially concurrent cash capital contribution received by the Company from
its shareholders; provided, however, that (A) such Restricted Payment
shall be excluded in the calculation of the amount of Restricted Payments and (B) the
Net Cash Proceeds from such sale or such cash capital contribution (to the
extent so used for such Restricted Payment) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B);


 


(2) any purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value
of Subordinated Obligations of the Company or a Subsidiary Guarantor made by
exchange for, or out of the proceeds of the substantially concurrent sale of, Indebtedness
of such Person which is permitted to be Incurred pursuant to Section 4.03;
provided, however, that such purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value shall be excluded in the calculation
of the amount of Restricted Payments;


 


(3) dividends paid
within 60 days after the date of declaration thereof if at such date of
declaration such dividend would have complied with this Section 4.04;
provided, however, that at the time of payment of such dividend, no other
Default shall have occurred and be continuing (or result therefrom); provided
further, however, that such dividend shall be included in the calculation of
the amount of Restricted Payments;


 


(4) so long as no
Default has occurred and is continuing, the repurchase or other acquisition of
shares of Capital Stock of the Company or any of its Subsidiaries from
employees, former employees, directors or former directors of the Company or
any of its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors under which such individuals purchase or
sell or are granted the option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate amount of such repurchases and
other acquisitions (excluding amounts representing cancelation of Indebtedness)
shall not exceed $1.0 million in any calendar year; provided further,
however, that such repurchases and other acquisitions shall be excluded in the
calculation of the amount of Restricted Payments;


 


(5) the declaration and
payments of dividends on Disqualified Stock issued pursuant to Section 4.03;
provided, however, that, at the time of payment of such dividend, no Default
shall have occurred and be continuing (or result therefrom); provided further,
however, that such dividends shall be excluded in the calculation of the amount
of Restricted Payments;


 


31

















 


(6) repurchases of
Capital Stock deemed to occur upon exercise of stock options if such Capital
Stock represents a portion of the exercise price of such options; provided,
however, that such Restricted Payments shall be excluded in the calculation of
the amount of Restricted Payments;


 


(7) cash payments in
lieu of the issuance of fractional shares in connection with the exercise of
warrants, options or other securities convertible into or exchangeable for Capital
Stock of the Company; provided, however, that any such cash payment shall not
be for the purpose of evading the limitations of this Section 4.04 (as
determined in good faith by the Board of Directors); provided further, however,
that such payments shall be excluded in the calculation of the amount of
Restricted Payments;


 


(8) in the event of a
Change of Control, and if no Default shall have occurred and be continuing, the
payment, purchase, redemption, defeasance or other acquisition or retirement of
Subordinated Obligations of the Company or any Subsidiary Guarantor, in each
case, at a purchase price not greater than 101% of the principal amount of such
Subordinated Obligations, plus any accrued and unpaid interest thereon;
provided, however, that prior to such payment, purchase, redemption, defeasance
or other acquisition or retirement, the Company (or a third party to the extent
permitted by this Indenture) has made a Change of Control Offer with respect to
the Securities as a result of such Change of Control and has repurchased all
Securities validly tendered and not withdrawn in connection with such Change of
Control Offer; provided further, however, that such repurchase and other
acquisitions shall be included in the calculation of the amount of Restricted
Payments;


 


(9) payments of
intercompany subordinated Indebtedness, the Incurrence of which was permitted
under Section 4.03(b)(2); provided, however, that no Default has occurred
and is continuing or would otherwise result therefrom; provided further,
however, that such payments shall be excluded in the calculation of the amount
of Restricted Payments;


 


(10) Restricted
Payments in an amount which, when taken together with all Restricted Payments
made pursuant to this clause (10), does not exceed $40.0 million;
provided, however, that (A) at the time of each such Restricted Payment,
no Default shall have occurred and be continuing (or result therefrom) and (B) such
payments shall be excluded in the calculation of the amount of Restricted
Payments; or


 


(11) so long as no Default
has occurred and is continuing, the declaration and payment of dividends on the
Capital Stock of the Company; provided, however, that the aggregate amount of
such dividends made pursuant to this clause (11) in any calendar year
shall not exceed the sum of (A) $10.0 million and (B) the amount
of dividends permitted but not made pursuant to this clause (11) in prior
calendar years; provided further, however, that such dividends shall be
excluded in the calculation of the amount of Restricted Payments.


 


SECTION 4.05.
Limitation on Restrictions on Distributions from Restricted Subsidiaries. The
Company shall not, and shall not permit any Restricted Subsidiary to, create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (a) pay
dividends or make any other distributions on its Capital Stock to the Company
or a Restricted Subsidiary or pay any Indebtedness owed to the Company, (b) make
any loans or advances to the Company or (c) transfer any of its property
or assets to the Company, except:


 


(1) with respect to
clauses (a), (b) and (c),


 


32

















 


(A) any encumbrance or restriction
pursuant to an agreement in effect at or entered into on the Issue Date,
including the Credit Agreement entered into on the Issue Date;


 


(B) any encumbrance or restriction with
respect to a Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary on or prior to the date on
which such Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred as consideration in, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company) and outstanding on such
date;


 


(C) any encumbrance or restriction
pursuant to an agreement effecting a Refinancing of Indebtedness Incurred
pursuant to an agreement referred to in Section 4.05(1)(A) or (B) or
this clause (C) or contained in any amendment to an agreement referred to
in Section 4.05(1)(A) or (B) or this clause (C); provided,
however, that the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such refinancing agreement or amendment are no less
favorable to the Securityholders than encumbrances and restrictions with
respect to such Restricted Subsidiary contained in such predecessor agreements;


 


(D) any encumbrance or restriction with
respect to a Restricted Subsidiary imposed pursuant to an agreement entered
into for the sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary pending the closing of such sale or
disposition; and


 


(E) any encumbrance or restriction
contained in the terms of any Indebtedness of the type described in Section 4.03(b)(11)
or 4.03(b)(12) (provided that such Indebtedness is Incurred in compliance with
such Section) or any agreement pursuant to which such Indebtedness was Incurred
if (x) either (i) the encumbrance or restriction applies only in the
event of and during the continuance of a payment default or a default with respect
to a financial covenant contained in such Indebtedness or agreement or (ii) the
Company determines at the time any such Indebtedness is Incurred (and at the
time of any modification of the terms of any such encumbrance or restriction)
that any such encumbrance or restriction will not materially affect the
Company’s ability to make principal or interest payments on the Securities and
any other Indebtedness that is an obligation of the Company and (y) the
encumbrance or restriction is not materially more disadvantageous to the
Holders of the Securities than is customary in comparable financings or
agreements (as determined by the Company in good faith); and


 


(2) with respect to
clause (c) only,


 


(A) any encumbrance or restriction
consisting of customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the lease or
the property leased thereunder;


 


(B) any encumbrance or restriction
contained in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or restriction restricts
the transfer of the property subject to such security agreements or mortgages;


 


33

















 


(C) any encumbrance or restriction on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;


 


(D) any encumbrance or restriction
contained in customary provisions in joint venture agreements entered into in
the ordinary course of business with respect to the disposition or distribution
of assets or property of the applicable joint venture or that restrict the
transfer of interests in such joint venture; and


 


(E) customary restrictions imposed on
the transfer of, or licenses related to, copyrights, patents or other
intellectual property and contained in agreements entered into in the ordinary
course of business.


 


SECTION 4.06.
Limitation on Sales of Assets and Subsidiary Stock. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
consummate any Asset Disposition unless:


 


(1) the Company or such
Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the value
of all non-cash consideration), as determined in good faith by the Board of
Directors, of the shares and assets subject to such Asset Disposition;


 


(2) at least 75% of the
consideration thereof received by the Company or such Restricted Subsidiary is
in the form of cash or cash equivalents; and


 


(3) an amount equal to
100% of the Net Available Cash from such Asset Disposition is applied by the
Company (or such Restricted Subsidiary, as the case may be)


 


(A) to the extent the Company elects (or
is required by the terms of any Indebtedness), to prepay, repay, redeem or
purchase Senior Indebtedness of the Company or Indebtedness (other than any
Disqualified Stock) of a Wholly Owned Subsidiary (in each case other than
Indebtedness owed to the Company or an Affiliate of the Company) within one
year from the later of the date of such Asset Disposition or the receipt of
such Net Available Cash;


 


(B) to the extent the Company elects, to
acquire Additional Assets within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash; and


 


(C) to the extent of the balance of such
Net Available Cash after application in accordance with clauses (A) and
(B), to make an Offer to the Holders of the Securities (and to holders of other
Senior Subordinated Indebtedness of the Company designated by the Company) to
purchase Securities (and such other Senior Subordinated Indebtedness of the
Company) pursuant to and subject to the conditions contained in this Indenture;


 


provided, however, that in
connection with any prepayment, repayment or purchase of Indebtedness pursuant
to clause (A) or (C) above, the Company or such Restricted Subsidiary
shall permanently retire such Indebtedness and shall cause the related loan
commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.


 


34














 


Notwithstanding
the foregoing provisions of this Section 4.06, the Company and the
Restricted Subsidiaries shall not be required to apply any Net Available Cash
in accordance with this Section 4.06(a) except to the extent that the
aggregate Net Available Cash from all Asset Dispositions that is not applied in
accordance with this Section 4.06(a) exceeds $15.0 million.
Pending application of Net Available Cash pursuant to this Section 4.06(a),
such Net Available Cash shall be invested in Temporary Cash Investments or
applied to temporarily reduce revolving credit indebtedness.


 


For
the purposes of this Section 4.06(a), the following are deemed to be cash
or cash equivalents:


 


(1) the assumption of
Indebtedness of the Company (other than Obligations in respect of Disqualified
Stock of the Company) or any Restricted Subsidiary (other than Obligations in
respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and
the release of the Company or such Restricted Subsidiary from all liability on
such Indebtedness in connection with such Asset Disposition; and


 


(2) securities received
by the Company or any Restricted Subsidiary from the transferee that are
promptly converted by the Company or such Restricted Subsidiary into cash, to
the extent of the cash received in that conversion.


 


(b) In the event of an
Asset Disposition that requires the purchase of Securities (and other Senior
Subordinated Indebtedness of the Company) pursuant to Section 4.06(a)(3)(C),
the Company shall purchase Securities tendered pursuant to an offer by the
Company for the Securities (and such other Senior Subordinated Indebtedness)
(the “Offer”) at a purchase price of 100% of their principal amount (or, in the
event such other Senior Subordinated Indebtedness was issued with significant
original issue discount, 100% of the accreted value thereof) without premium,
plus accrued but unpaid interest (or, in respect of such other Senior
Subordinated Indebtedness, such lesser price, if any, as may be provided for by
the terms of such Senior Subordinated Indebtedness) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in Section 4.06(c).
If the aggregate purchase price of the securities tendered exceeds the Net
Available Cash allotted to their purchase, the Company shall select the
securities to be purchased on a pro rata basis but in round denominations,
which in the case of the Securities will be denominations of $1,000 principal
amount or multiples thereof. The Company shall not be required to make such an
Offer to purchase Securities (and other Senior Subordinated Indebtedness)
pursuant to this Section 4.06 if the Net Available Cash available therefor
is less than $15.0 million (which lesser amount shall be carried forward
for purposes of determining whether such an Offer is required with respect to
the Net Available Cash from any subsequent Asset Disposition). Upon completion
of such an Offer to purchase, Net Available Cash shall be deemed to be reduced
by the aggregate amount of such Offer.


 


(c) (1) Promptly,
and in any event within 10 days after the Company becomes obligated to
make an Offer, the Company shall deliver to the Trustee and send, by
first-class mail to each Holder, a written notice stating that the Holder may
elect to have his Securities purchased by the Company either in whole or in
part (subject to prorating as described in Section 4.06(b) in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of
such notice (the “Purchase Date”) and shall contain such information concerning
the business of the Company which the Company in good faith believes will enable
such Holders to make an informed decision (which at a minimum will include (A) the
most recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Company, the most recent subsequently
filed Quarterly Report on Form 10-Q 


 


35

















 


and
any Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset Dispositions
otherwise described in the offering materials (or corresponding successor
reports), (B) a description of material developments in the Company’s
business subsequent to the date of the latest of such Reports, and (C) if
material, appropriate pro forma financial information) and all instructions and
materials necessary to tender Securities pursuant to the Offer, together with
the information contained in clause (3).


 


(2) Not later than the
date upon which written notice of an Offer is delivered to the Trustee as
provided below, the Company shall deliver to the Trustee an Officers’
Certificate as to (A) the amount of the Offer (the “Offer Amount”),
including information as to any other Senior Subordinated Indebtedness included
in the Offer, (B) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (C) the
compliance of such allocation with the provisions of Section 4.06(a) and
(b). On such date, the Company shall also irrevocably deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) in Temporary Cash Investments, maturing on the
last day prior to the Purchase Date or on the Purchase Date if funds are
immediately available by open of business, an amount equal to the Offer Amount
to be held for payment in accordance with the provisions of this Section. If
the Offer includes other Senior Subordinated Indebtedness, the deposit
described in the preceding sentence may be made with any other paying agent
pursuant to arrangements satisfactory to the Trustee. Upon the expiration of
the period for which the Offer remains open (the “Offer Period”), the Company
shall deliver to the Trustee for cancellation the Securities or portions
thereof which have been properly tendered to and are to be accepted by the
Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or
cause the delivery of payment) to each tendering Holder in the amount of the
purchase price. In the event that the aggregate purchase price of the
Securities delivered by the Company to the Trustee is less than the Offer
Amount applicable to the Securities, the Trustee shall deliver the excess to
the Company immediately after the expiration of the Offer Period for
application in accordance with this Section 4.06.


 


(3) Holders electing to
have a Security purchased shall be required to surrender the Security, with an
appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the Purchase Date. Holders shall
be entitled to withdraw their election if the Trustee or the Company receives
not later than one Business Day prior to the Purchase Date, a telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount
of the Security which was delivered for purchase by the Holder and a statement
that such Holder is withdrawing his election to have such Security purchased.
Holders whose Securities are purchased only in part shall be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.


 


(4) At the time the
Company delivers Securities to the Trustee which are to be accepted for
purchase, the Company shall also deliver an Officers’ Certificate stating that
such Securities are to be accepted by the Company pursuant to and in accordance
with the terms of this Section. A Security shall be deemed to have been
accepted for purchase at the time the Trustee, directly or through an agent,
mails or delivers payment therefor to the surrendering Holder.


 


(d) The Company shall
comply, to the extent applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or regulations in connection
with the repurchase of Securities pursuant to this Section 4.06. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 4.06, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have 


 


36

















 


breached
its obligations under this Section 4.06 by virtue of its compliance with
such securities laws or regulations.


 


SECTION 4.07.
Limitation on Affiliate Transactions. (a) The Company shall not, and shall
not permit any Restricted Subsidiary to, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property,
employee compensation arrangements or the rendering of any service) with, or
for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”)
unless:


 


(1) the terms of the
Affiliate Transaction are no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained at the time of the Affiliate
Transaction in arm’s-length dealings with a Person who is not an Affiliate;


 


(2) if such Affiliate
Transaction involves an amount in excess of $15.0 million, the terms of
the Affiliate Transaction are set forth in writing and a majority of the
non-employee directors of the Company disinterested with respect to such
Affiliate Transaction have determined in good faith that the criteria set forth
in clause (1) are satisfied and have approved the relevant Affiliate
Transaction as evidenced by a resolution of the Board of Directors; and


 


(3) if such Affiliate
Transaction involves an amount in excess of $35.0 million, the Board of
Directors shall also have received a written opinion from an Independent
Qualified Party to the effect that such Affiliate Transaction is fair, from a
financial standpoint, to the Company and its Restricted Subsidiaries or is not
less favorable to the Company and its Restricted Subsidiaries than could
reasonably be expected to be obtained at the time in an arm’s-length
transaction with a Person who was not an Affiliate.


 


(b) The provisions of Section 4.07(a) shall
not prohibit:


 


(1) any Investment
(other than a Permitted Investment) or other Restricted Payment, in each case
permitted to be made pursuant to (but only to the extent included in the
calculation of the amount of Restricted Payments made pursuant to paragraph (a)(3) of)
Section 4.04;


 


(2) any issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors;


 


(3) loans or advances
to employees in the ordinary course of business in accordance with the past
practices of the Company or its Restricted Subsidiaries, but in any event not
to exceed $1.0 million in the aggregate outstanding at any one time;


 


(4) the payment of
reasonable fees in cash or equity to directors of the Company and its
Restricted Subsidiaries who are not employees of the Company or its Restricted
Subsidiaries;


 


(5) any transaction
with a Restricted Subsidiary or joint venture or similar entity which would
constitute an Affiliate Transaction solely because the Company or a Restricted
Subsidiary owns an equity interest in or otherwise controls such Restricted
Subsidiary, joint venture or similar entity; and


 


(6) the issuance or
sale of any Capital Stock (other than Disqualified Stock) of the Company.


 


37

















 


SECTION 4.08.
Limitation on Line of Business. The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any business other than a Related Business.


 


SECTION 4.09.
Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries.
The Company


 


(1) shall not, and
shall not permit any Restricted Subsidiary to, sell, lease, transfer or
otherwise dispose of any Capital Stock of any Restricted Subsidiary to any
Person (other than the Company or a Wholly Owned Subsidiary), and


 


(2) shall not permit
any Restricted Subsidiary to issue any of its Capital Stock (other than, if
necessary, shares of its Capital Stock constituting directors’ or other legally
required qualifying shares) to any Person (other than to the Company or a
Wholly Owned Subsidiary), unless


 


(A) immediately after giving effect to
such issuance, sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary; or


 


(B) immediately after giving effect to
such issuance, sale or other disposition, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect thereto is treated as a new Investment by the
Company and such Investment would be permitted to be made under Section 4.04
if made on the date of such issuance, sale or other disposition.


 


For
purposes of this Section 4.09, the creation of a Lien on any Capital Stock
of a Restricted Subsidiary to secure Indebtedness of the Company or any of its
Restricted Subsidiaries shall not be deemed to be a violation of this Section 4.09;
provided, however, that any sale or other disposition by the secured party of
such Capital Stock following foreclosure of its Lien will be subject to this Section 4.09.


 


SECTION 4.10.
Change of Control. (a) Upon the occurrence of a Change of Control, each
Holder shall have the right to require that the Company purchase such Holder’s
Securities at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest on the relevant interest payment date), in accordance with the
terms contemplated in Section 4.10(b). In the event that at the time of
such Change of Control the terms of any Senior Indebtedness of the Company
(including the Credit Agreement) restrict or prohibit the repurchase of
Securities pursuant to this Section, then prior to the mailing of the notice to
Holders provided for in Section 4.10(b) below but in any event within
30 days following any Change of Control, the Company shall (1) repay
in full all such Senior Indebtedness or (2) obtain the requisite consents
under the agreements governing such Senior Indebtedness to permit the
repurchase of the Securities as provided for in Section 4.10(b).


 


(b) Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
with a copy to the Trustee (the “Change of Control Offer”) stating:


 


(1) that a Change of
Control has occurred and that such Holder has the right to require the Company
to purchase such Holder’s Securities at a purchase price in cash equal to 101%
of the principal amount thereof on the date of purchase, plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest on the
relevant interest payment date);


 


38

















 


(2) the circumstances
and relevant facts regarding such Change of Control (including information with
respect to pro forma historical income, cash flow and capitalization, in each
case after giving effect to such Change of Control);


 


(3) the purchase date
(which shall be no earlier than 30 days nor later than 60 days from
the date such notice is mailed); and


 


(4) the instructions,
as determined by the Company, consistent with this Section 4.10, that a
Holder must follow in order to have its Securities purchased.


 


(c) Holders electing to
have a Security purchased shall be required to surrender the Security, with an
appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the purchase date. Holders shall
be entitled to withdraw their election if the Trustee or the Company receives
not later than one Business Day prior to the purchase date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing his election to have such
Security purchased.


 


(d) On the purchase
date, all Securities purchased by the Company under this Section shall be
delivered by the Company to the Trustee for cancellation, and the Company shall
pay the purchase price plus accrued and unpaid interest, if any, to the Holders
entitled thereto.


 


(e) Notwithstanding the
foregoing provisions of this Section 4.10, the Company shall not be
required to make a Change of Control Offer following a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.10
applicable to a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.


 


(f) The Company shall
comply, to the extent applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or regulations in connection
with the repurchase of Securities pursuant to this Section 4.10. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Section 4.10, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.10 by virtue of its
compliance with such securities laws or regulations.


 


SECTION 4.11.
Future Guarantors. The Company shall cause each domestic Restricted Subsidiary
that Incurs or Guarantees any Bank Indebtedness to, and each Foreign Subsidiary
that enters into a Guarantee of any Senior Indebtedness (other than a Foreign
Subsidiary that Guarantees Senior Indebtedness Incurred by another Foreign
Subsidiary) to, in each case, at the same time, execute and deliver to the
Trustee a Guaranty Agreement pursuant to which such Restricted Subsidiary shall
Guarantee payment of the Securities on the same terms and conditions as those
set forth in Article 11 of this Indenture.


 


SECTION 4.12.
Compliance Certificate. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company an Officers’
Certificate stating that in the course of the performance by the signers of
their duties as Officers of the Company they would normally have knowledge of
any Default and whether or not the signers know of any Default that occurred
during such period. If they do, the certificate shall describe the Default, its


 


39

















 


status and what action the
Company is taking or proposes to take with respect thereto. The Company also
shall comply with TIA § 314(a)(4).


 


SECTION 4.13.
Further Instruments and Acts. Upon request of the Trustee, the Company shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.


 


Article 5


 


Successor Company


 


SECTION 5.01.
When Company May Merge or Transfer Assets. (a) The Company shall not
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, directly or indirectly, all or
substantially all its assets to, any Person, unless:


 


(1) the resulting,
surviving or transferee Person (the “Successor Company”) shall be a Person
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the
Company) shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all the obligations of the Company under the Securities and this Indenture;


 


(2) immediately after
giving pro forma effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Company or any Subsidiary as a
result of such transaction as having been Incurred by such Successor Company or
such Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;


 


(3) immediately after
giving pro forma effect to such transaction, the Successor Company would be
able to Incur an additional $1.00 of Indebtedness pursuant to Section 4.03(a);


 


(4) the Company shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture; and


 


(5) the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of such transaction and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such transaction had not occurred.


 


provided, however, that
clause (3) shall not be applicable to (A) a Restricted Subsidiary
consolidating with, merging into or transferring all or part of its properties
and assets to the Company or (B) the Company merging with an Affiliate of
the Company solely for the purpose and with the sole effect of reincorporating
the Company in another jurisdiction.


 


For
purposes of this Section 5.01, the sale, lease, conveyance, assignment,
transfer or other disposition of all or substantially all of the properties and
assets of one or more Subsidiaries of the Company, which properties and assets,
if held by the Company instead of such Subsidiaries, would constitute all or
substantially all of the properties and


 


40

















 


assets of the Company on a
consolidated basis, shall be deemed to be the transfer of all or substantially
all of the properties and assets of the Company.


 


The
Successor Company shall be the successor to the Company and shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture, and the predecessor Company, except in the case of a
lease, shall be released from the obligation to pay the principal of and
interest on the Securities.


 


(b) The Company shall
not permit any Subsidiary Guarantor to consolidate with or merge with or into,
or convey, transfer or lease, in one transaction or a series of transactions,
all or substantially all of its assets to any Person (other than the Company or
another Subsidiary Guarantor) unless:


 


(1) except in the case
of a Subsidiary Guarantor (x) that has been disposed of in its entirety to
another Person (other than to the Company or an Affiliate of the Company),
whether through a merger, consolidation or sale of Capital Stock or assets or (y) that,
as a result of the disposition of all or a portion of its Capital Stock, ceases
to be a Subsidiary, in both cases, if in connection therewith the Company
provides an Officers’ Certificate to the Trustee to the effect that the Company
shall comply with its obligations under Section 4.06 in respect of such
disposition, the resulting, surviving or transferee Person (if not such
Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction
under which such Subsidiary was organized or under the laws of the United
States of America, or any State thereof or the District of Columbia, and such
Person shall expressly assume, by a Guaranty Agreement, in a form satisfactory
to the Trustee, all the obligations of such Subsidiary, if any, under its
Subsidiary Guaranty;


 


(2) immediately after
giving effect to such transaction or transactions on a pro forma basis (and
treating any Indebtedness which becomes an obligation of the resulting, surviving
or transferee Person as a result of such transaction as having been issued by
such Person at the time of such transaction), no Default shall have occurred
and be continuing; and


 


(3) the Company
delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such Guaranty
Agreement, if any, complies with this Indenture.


 


Article 6


 


Defaults and Remedies


 


SECTION 6.01.
Events of Default. An “Event of Default” occurs if:


 


(1) the Company
defaults in any payment of interest on any Security when the same becomes due
and payable, whether or not such payment shall be prohibited by Article 10,
and such default continues for a period of 30 days;


 


(2) the Company (A) defaults
in the payment of the principal of any Security when the same becomes due and
payable at its Stated Maturity, upon optional redemption, upon declaration of
acceleration or otherwise, whether or not such payment shall be prohibited by Article 10
or (B) fails to purchase Securities when required pursuant to this
Indenture or the Securities, whether or not such purchase shall be prohibited
by Article 10;


 


(3) the Company fails
to comply with Section 5.01;


 


41

















 


(4) the Company fails
to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09,
4.10 or 4.11 (other than a failure to purchase Securities when required under Section 4.06
or 4.10) and such failure continues for 30 days after the notice specified
below;


 


(5) the Company or any
Subsidiary Guarantor fails to comply with any of its agreements contained in
the Securities or this Indenture (other than those referred to in clause (1),
(2), (3) or (4) above) and such failure continues for 60 days
after the notice specified below;


 


(6) Indebtedness of the
Company, any Subsidiary Guarantor or any Significant Subsidiary is not paid
within any applicable grace period after final maturity or is accelerated by
the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $10.0 million, or its foreign
currency equivalent at the time;


 


(7) the Company, any
Subsidiary Guarantor or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:


 


(A) commences a voluntary case;


 


(B) consents to the entry of an order
for relief against it in an involuntary case;


 


(C) consents to the appointment of a
Custodian of it or for any substantial part of its property; or


 


(D) makes a general assignment for the
benefit of its creditors;


 


or takes any comparable
action under any foreign laws relating to insolvency;


 


(8) a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(A) is for relief against the Company,
any Subsidiary Guarantor or any Significant Subsidiary in an involuntary case;


 


(B) appoints a Custodian of the Company,
any Subsidiary Guarantor or any Significant Subsidiary or for any substantial
part of its property; or


 


(C) orders the winding up or liquidation
of the Company, any Subsidiary Guarantor or any Significant Subsidiary;


 


or any similar relief is
granted under any foreign laws and the order or decree remains unstayed and in
effect for 60 days; or


 


(9) any judgment or
decree for the payment of money in an amount (net of the amount of any surety
bonds in respect of such judgment or decree and any insurance proceeds
available to the obligor in respect of such judgment or decree from insurance
carriers who in the reasonable judgment of the Board of Directors are creditworthy
and who have not disclaimed their liability with respect thereto) in excess of
$10.0 million or its foreign currency equivalent at the time is entered against
the Company, a Subsidiary Guarantor or any Significant Subsidiary, remains
outstanding for a period of 60 consecutive days following the entry of such
judgment or decree and is not discharged, waived or the execution thereof
stayed; or


 


42

















 


(10) any Subsidiary
Guaranty ceases to be in full force and effect (other than in accordance with
the terms of such Subsidiary Guaranty) or any Subsidiary Guarantor denies or
disaffirms its obligations under its Subsidiary Guaranty.


 


The
foregoing shall constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.


 


The
term “Bankruptcy Law” means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. The term “Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar official under
any Bankruptcy Law.


 


A
Default under clause (4) or (5) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities notify the Company of the Default and the Company does not cure such
Default within the time specified after receipt of such notice. Such notice
must specify the Default, demand that it be remedied and state that such notice
is a “Notice of Default”.


 


The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any Event of
Default under clause (3), (6) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Company is taking
or proposes to take with respect thereto.


 


SECTION 6.02.
Acceleration. If an Event of Default (other than an Event of Default specified
in Section 6.01(7) or (8) with respect to the Company) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in principal amount of the Securities by notice to the Company and
the Trustee, may declare the principal of and accrued but unpaid interest on
all the Securities to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7) or (8) with respect to the
Company occurs, the principal of and interest on all the Securities shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholders. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


SECTION 6.03.
Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of or
interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.


 


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. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.


 


SECTION 6.04.
Waiver of Past Defaults. The Holders of a majority in principal amount of the
Securities by notice to the Trustee may waive an existing Default and its
consequences


 


43

















 


except (a) a Default in
the payment of the principal of or interest on a Security, (b) a Default
arising from the failure to redeem or purchase any Security when required
pursuant to this Indenture or (c) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each
Securityholder affected. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right.


 


SECTION 6.05.
Control by Majority. The Holders of a majority in principal amount of the
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to taking any
action under this Section, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.


 


SECTION 6.06.
Limitation on Suits. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Securityholder may pursue
any remedy with respect to this Indenture or the Securities unless:


 


(1) the Holder gives to
the Trustee written notice stating that an Event of Default is continuing;


 


(2) the Holders of at
least 25% in principal amount of the Securities make a written request to the
Trustee to pursue the remedy;


 


(3) such Holder or
Holders offer to the Trustee reasonable security or indemnity against any loss,
liability or expense;


 


(4) the Trustee does
not comply with the request within 60 days after receipt of the request
and the offer of security or indemnity; and


 


(5) the Holders of a
majority in principal amount of the Securities do not give the Trustee a
direction inconsistent with the request during such 60-day period.


 


A
Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder. In the event that the Definitive Securities are not issued to
any beneficial owner promptly after the Registrar has received a request from
the Holder of a Global Security to issue such Definitive Securities to such
beneficial owner or its nominee, the Company expressly agrees and acknowledges,
with respect to the right of any Holder to pursue a remedy pursuant to this
Indenture, the right of such beneficial holder of Securities to pursue such
remedy with respect to the portion of the Global Security that represents such
beneficial holder’s Securities is as if such Definitive Securities had been
issued.


 


SECTION 6.07.
Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of principal of and
interest on the Securities held by such Holder, on or after the respective due
dates expressed in the Securities, 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.


 


44














 


SECTION 6.08.
Collection Suit by Trustee. If an Event of Default specified in Section 6.01(1) or
(2) 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 then due and owing (together with interest on any unpaid interest to the
extent lawful) and the amounts provided for in 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 and the Securityholders allowed in any
judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.


 


SECTION 6.10.
Priorities. If the Trustee collects any money or property pursuant to this Article 6,
it shall pay out the money or property in the following order:


 


FIRST: to the Trustee for
amounts due under Section 7.07;


 


SECOND: to holders of Senior
Indebtedness of the Company and, if such money or property has been collected
from a Subsidiary Guarantor, to holders of Senior Indebtedness of such
Subsidiary Guarantor, in each case to the extent required by Articles 10 and
12;


 


THIRD: to Securityholders
for amounts due and unpaid on the Securities for principal and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest, respectively; and


 


FOURTH: to the Company.


 


The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.


 


SECTION 6.11.
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, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
aggregate principal amount of the Securities.


 


SECTION 6.12.
Waiver of Stay or Extension Laws. The Company (to the extent it may lawfully do
so) shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and shall not hinder, delay or impede the execution of any power


 


45

















 


herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.


 


Article 7


 


Trustee


 


SECTION 7.01.
Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person’s own affairs.


 


(b) Except during the
continuance of an Event of Default:


 


(1) the Trustee
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and


 


(2) in the absence of
bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


(c) The Trustee may not
be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:


 


(1) this paragraph does
not limit the effect of paragraph (b) of this Section;


 


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


 


(3) the Trustee shall
not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to Section 6.05.


 


(d) Every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.


 


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


 


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


 


(g) No provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


46

















 


(h) 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 Section and
to the provisions of the TIA.


 


SECTION 7.02.
Rights of Trustee. (a) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.


 


(b) Before the Trustee
acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers’ Certificate
or Opinion of Counsel or both.


 


(c) The Trustee may act
through agents and shall not be responsible for the misconduct or negligence of
any agent appointed with due care.


 


(d) The Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers; provided, however,
that the Trustee’s conduct does not constitute wilful misconduct or negligence.


 


(e) The Trustee may
consult with counsel, and the advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.


 


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 have if it
were not Trustee. However, in the event that the Trustee acquires any
conflicting interest, it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as Trustee (if this Indenture has
been qualified under the TIA) or resign. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.


 


SECTION 7.04.
Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or in any document issued in connection with the sale
of the Securities or in the Securities other than the Trustee’s certificate of
authentication.


 


SECTION 7.05.
Notice of Defaults. If a Default occurs, is continuing and is known to the
Trustee, the Trustee shall mail to each Securityholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in the
payment of principal of or interest on any Security (including payments
pursuant to the mandatory redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is not opposed to
the interests of the Securityholders.


 


SECTION 7.06.
Reports by Trustee to Holders. As promptly as practicable after each April 1
beginning with the April 1 following the date of this Indenture, and in
any event prior to June 1 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of April 1 that complies with TIA §
313(a). The Trustee also shall comply with TIA § 313(b).


 


47

















 


A
copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange (if any) on which the Securities are
listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.


 


SECTION 7.07.
Compensation and Indemnity. The Company shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the compensation and
expenses, disbursements and advances of the Trustee’s agents, counsel,
accountants and experts. The Company shall indemnify the Trustee against any
and all loss, liability or expense (including agents’ and attorneys’ fees)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee’s own willful
misconduct, negligence or bad faith.


 


To
secure the Company’s payment obligations in this Section, the Trustee shall
have a lien prior to the Securities on all money or property held or collected
by the Trustee other than money or property held in trust to pay principal of
and interest on particular Securities.


 


The
Company’s payment obligations pursuant to this Section shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.


 


SECTION 7.08.
Replacement of Trustee. The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:


 


(1) the Trustee fails
to comply with Section 7.10;


 


(2) the Trustee is
adjudged bankrupt or insolvent;


 


(3) a receiver or other
public officer takes charge of the Trustee or its property; or


 


(4) the Trustee
otherwise becomes incapable of acting.


 


If
the Trustee resigns, is removed by the Company or by the Holders of a majority
in principal amount of the Securities and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the


 


48

















 


Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.


 


If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in
principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.


 


If
the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.


 


SECTION 7.09.
Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.


 


In
case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.


 


SECTION 7.10.
Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA § 310(a). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA § 310(b);
provided, however, that there shall be excluded from the operation of TIA §
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA §
310(b)(1) are met.


 


SECTION 7.11.
Preferential Collection of Claims Against Company. The Trustee shall comply
with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b).
A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to
the extent indicated.


 


Article 8


 


Discharge of Indenture;
Defeasance


 


SECTION 8.01.
Discharge of Liability on Securities; Defeasance. (a) When (1) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (2) all
outstanding Securities have become due and payable, whether at maturity or on a
redemption date as a result of the mailing of a notice of redemption pursuant
to Article 3 hereof and the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding
Securities, including


 


49

















 


interest thereon to maturity
or such redemption date (other than Securities replaced pursuant to Section 2.07),
and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to
be of further effect. The Trustee shall acknowledge satisfaction and discharge
of this Indenture on demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.


 


(b) Subject to
Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all
its obligations under the Securities and this Indenture (“legal defeasance
option”) or (2) its obligations under Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 and the operation of Sections
6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries
and Subsidiary Guarantors) and the limitations contained in Section 5.01(a)(3) (“covenant
defeasance option”). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.


 


If
the Company exercises its legal defeasance option, payment of the Securities
may not be accelerated because of an Event of Default with respect thereto. If
the Company exercises its covenant defeasance option, payment of the Securities
may not be accelerated because of an Event of Default specified in Sections 6.01(4),
6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries and Subsidiary Guarantors) or because of the failure of the
Company to comply with Section 5.01(a)(3). If the Company exercises its
legal defeasance option or its covenant defeasance option, each Subsidiary
Guarantor, if any, shall be released from all its obligations with respect to
its Subsidiary Guaranty.


 


Upon
satisfaction of the conditions set forth herein and upon request of the
Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.


 


(c) Notwithstanding
clauses (a) and (b) above, the Company’s obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article 8
shall survive until the Securities have been paid in full. Thereafter, the
Company’s obligations in Sections 7.07, 8.04 and 8.05 shall survive.


 


SECTION 8.02.
Conditions to Defeasance. The Company may exercise its legal defeasance option
or its covenant defeasance option only if:


 


(1) the Company
irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations for the payment of principal of and interest on the Securities to
maturity or redemption, as the case may be;


 


(2) the Company
delivers to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay principal and
interest when due on all the Securities to maturity or redemption, as the case
may be;


 


(3) 123 days pass
after the deposit is made and during the 123-day period no Default specified in
Sections 6.01(7) or (8) with respect to the Company occurs which
is continuing at the end of the period;


 


50

















 


(4) the deposit does
not constitute a default under any other agreement binding on the Company and
is not prohibited by Article 10 or 12;


 


(5) the Company
delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;


 


(6) in the case of the
legal defeasance option, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (B) since
the date of this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred;


 


(7) in the case of the
covenant defeasance option, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Securityholders will not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and


 


(8) the Company
delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and discharge of
the Securities as contemplated by this Article 8 have been complied with.


 


Before
or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date in accordance with Article 3.


 


SECTION 8.03.
Application of Trust Money. The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to this Article 8. It
shall apply the deposited money and the money from U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the payment
of principal of and interest on the Securities. Money and securities so held in
trust are not subject to Article 10.


 


SECTION 8.04.
Repayment to Company. The Trustee and the Paying Agent shall promptly turn over
to the Company upon request any excess money or securities held by them at any
time.


 


Subject
to any applicable abandoned property law, the Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years, and, thereafter,
Securityholders entitled to the money must look to the Company for payment as
general creditors.


 


SECTION 8.05.
Indemnity for Government Obligations. The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.


 


SECTION 8.06.
Reinstatement. If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Article 8 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority


 


51

















 


enjoining, restraining or
otherwise prohibiting such application, the Company’s and each Subsidiary
Guarantor’s obligations under this Indenture, each Subsidiary Guaranty and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 8; provided, however, that, if the Company
has made any payment of interest on or principal of any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent.


 


Article 9


 


Amendments


 


SECTION 9.01.
Without Consent of Holders. The Company, the Subsidiary Guarantors and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:


 


(1) to cure any
ambiguity, omission, defect or inconsistency;


 


(2) to comply with Article 5;


 


(3) to provide for
uncertificated Securities in addition to or in place of certificated
Securities; provided, however, that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of
the Code;


 


(4) to make any change
in Article 10 or 12 that would limit or terminate the benefits available
to any holder of Senior Indebtedness of the Company or of a Subsidiary Guarantor
(or Representatives therefor) under Article 10 or 12;


 


(5) to add Guarantees
with respect to the Securities, including any Subsidiary Guaranties, or to
secure the Securities;


 


(6) to add to the
covenants of the Company or any Subsidiary Guarantor for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company or
any Subsidiary Guarantor;


 


(7) to comply with any
requirements of the SEC in connection with qualifying, or maintaining the
qualification of, this Indenture under the TIA;


 


(8) to make any change
that does not adversely affect the rights of any Securityholder; or


 


(9) to make any
amendment to the provisions of this Indenture relating to the transfer and
legending of Securities; provided, however, that (a) compliance with this
Indenture as so amended would not result in Securities being transferred in
violation of the Securities Act or any other applicable securities law and (b) such
amendment does not materially and adversely affect the rights of Holders to
transfer Securities.


 


An
amendment under this Section may not make any change that adversely
affects the rights under Article 10 or 12 of any holder of Senior
Indebtedness of the Company or of a


 


52

















 


Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or their
Representative) consent to such change.


 


After
an amendment under this Section becomes effective, the Company shall mail
to Securityholders a notice briefly describing such amendment. The failure to
give such notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.


 


SECTION 9.02.
With Consent of Holders. The Company, the Subsidiary Guarantors and the Trustee
may amend this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Securities) and any past default or compliance with any
provisions may also be waived with the consent of the Holders of at least a
majority in principal amount of the Securities then outstanding. However,
without the consent of each Securityholder affected thereby, an amendment or
waiver may not:


 


(1) reduce the amount
of Securities whose Holders must consent to an amendment;


 


(2) reduce the rate of
or extend the time for payment of interest on any Security;


 


(3) reduce the
principal of or change the Stated Maturity of any Security;


 


(4) change the
provisions applicable to the redemption of any Security contained in Article 3
hereof or paragraph 5 of the Securities;


 


(5) make any Security
payable in money other than that stated in the Security;


 


(6) make any change in Section 6.04
or 6.07 or the second sentence of this Section; or


 


(7) make any changes in
the ranking or priority of any Security that would adversely affect the
Securityholders;


 


(8) make any change in,
or release other than in accordance with this Indenture, any Subsidiary
Guaranty that would adversely affect the Securityholders.


 


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


 


An
amendment under this Section may not make any change that adversely
affects the rights under Article 10 or 12 of any holder of Senior
Indebtedness of the Company or of a Subsidiary Guarantor then outstanding unless
the holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.


 


After
an amendment under this Section becomes effective, the Company shall mail
to Securityholders a notice briefly describing such amendment. The failure to
give such notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.


 


SECTION 9.03.
Compliance with Trust Indenture Act. Every amendment to this Indenture or the
Securities shall comply with the TIA as then in effect.


 


53

















 


SECTION 9.04.
Revocation and Effect of Consents and Waivers. A consent to an amendment or a
waiver by a Holder of a Security shall bind the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same debt
as the consenting Holder’s Security, even if notation of the consent or waiver
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or waiver becomes effective,
it shall bind every Securityholder. An amendment or waiver becomes effective
upon the execution of such amendment or waiver by the Trustee.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Securityholders entitled to give their consent or take any
other action described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Securityholders at such record date
(or their duly designated proxies), and only those Persons, shall be entitled
to give such consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than
120 days after such record date.


 


SECTION 9.05.
Notation on or Exchange of Securities. If an amendment changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
regarding the changed terms and return it to the Holder. 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 that reflects the
changed terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment.


 


SECTION 9.06.
Trustee To Sign Amendments. The Trustee shall sign any amendment authorized
pursuant to this Article 9 if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment the Trustee shall
be entitled to receive indemnity reasonably satisfactory to it and to receive,
and (subject to Section 7.01) shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.


 


SECTION 9.07.
Payment for Consent. Neither the Company nor any Affiliate of the Company
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to all Holders and is paid to all Holders that so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating
to such consent, waiver or agreement.


 


Article 10


 


Subordination


 


SECTION 10.01.
Agreement To Subordinate. The Company agrees, and each Securityholder by
accepting a Security agrees, that the Indebtedness evidenced by the Securities
is subordinated in right of payment, to the extent and in the manner provided
in this Article 10, to the prior payment of all Senior Indebtedness of the
Company and that the subordination is for the benefit of and enforceable by the
holders of such Senior Indebtedness.


 


54














 


The Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Company and only Indebtedness of the Company which is Senior Indebtedness of
the Company shall rank senior to the Securities in accordance with the
provisions set forth herein. All provisions of this Article 10 shall be
subject to Section 10.12.


 


SECTION 10.02.
Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of the
assets of the Company to creditors upon a total or partial liquidation or a
total or partial dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property:


 


(1) holders
of Senior Indebtedness of the Company shall be entitled to receive payment in
full in cash of such Senior Indebtedness before Securityholders shall be
entitled to receive any payment of principal of or interest on the Securities;
and


 


(2) until
such Senior Indebtedness is paid in full in cash, any payment or distribution
to which Securityholders would be entitled but for this Article 10 shall
be made to holders of such Senior Indebtedness as their interests may appear,
except that Securityholders may receive shares of stock and any debt securities
that are subordinated to such Senior Indebtedness to at least the same extent
as the Securities.


 


SECTION 10.03.
Default on Senior Indebtedness of the Company. The Company shall not pay the
principal of or interest on the Securities or make any deposit pursuant to
Section 8.01 and may not purchase, redeem or otherwise retire any
Securities (collectively, “pay the Securities”) if either of the following (a
“Payment Default”) occurs (1) any Designated Senior Indebtedness of the
Company is not paid in full in cash when due; or (2) any other default on
Designated Senior Indebtedness of the Company occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, the Payment Default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness has
been paid in full in cash; provided, however, that the Company shall be
entitled to pay the Securities without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representatives of all Designated Senior Indebtedness with respect to which the
Payment Default has occurred and is continuing.


 


During
the continuance of any default (other than a Payment Default) with respect to any
Designated Senior Indebtedness of the Company pursuant to which the maturity
thereof may be accelerated without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company shall not pay the Securities for a period (a “Payment
Blockage Period”) commencing upon the receipt by the Trustee of (with a copy to
the Company) written notice (a “Blockage Notice”) of such default from the
Representative of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter. The
Payment Blockage Period shall end earlier if such Payment Blockage Period is
terminated: (1) by written notice to the Trustee and the Company from the
Person or Persons who gave such Blockage Notice; (2) because the default
giving rise to such Blockage Notice is cured, waived or otherwise no longer
continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full.


 


Notwithstanding
the provisions described in the immediately preceding two sentences (but
subject to the provisions contained in the first sentence of this Section),
unless the holders of such Designated Senior Indebtedness or the Representative
of such Designated Senior Indebtedness shall have accelerated the maturity of
such Designated Senior Indebtedness, the Company shall be entitled to resume
payments on the Securities after termination of such


 


55

















 


Payment Blockage Period. The
Securities shall not be subject to more than one Payment Blockage Period in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of the Company during such period. For
purposes of this Section, no default or 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 of the Company initiating such
Payment Blockage Period shall be, or be made, the basis of the commencement of
a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive days.


 


SECTION 10.04.
Acceleration of Payment of Securities. If payment of the Securities is
accelerated because of an Event of Default, the Company or the Trustee shall
promptly notify the holders of the Designated Senior Indebtedness of the
Company (or their Representatives) of the acceleration.


 


SECTION 10.05.
When Distribution Must Be Paid Over. If a distribution is made to
Securityholders that because of this Article 10 should not have been made
to them, the Securityholders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company and pay it over to them
as their interests may appear.


 


SECTION 10.06.
Subrogation. After all Senior Indebtedness of the Company is paid in full and
until the Securities are paid in full, Securityholders shall be subrogated to
the rights of holders of such Senior Indebtedness to receive distributions
applicable to such Senior Indebtedness. A distribution made under this
Article 10 to holders of such Senior Indebtedness which otherwise would
have been made to Securityholders is not, as between the Company and
Securityholders, a payment by the Company on such Senior Indebtedness.


 


SECTION 10.07.
Relative Rights. This Article 10 defines the relative rights of Securityholders
and holders of Senior Indebtedness of the Company. Nothing in this Indenture
shall:


 


(1) impair, as between
the Company and Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on the Securities
in accordance with their terms; or


 


(2) prevent the Trustee
or any Securityholder from exercising its available remedies upon a Default,
subject to the rights of holders of Senior Indebtedness of the Company to
receive distributions otherwise payable to Securityholders.


 


SECTION 10.08.
Subordination May Not Be Impaired by Company. No right of any holder of
Senior Indebtedness of the Company to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.


 


SECTION 10.09.
Rights of Trustee and Paying Agent. Notwithstanding Section 10.03, the
Trustee or Paying Agent shall continue to make payments on the Securities and
shall not be charged with knowledge of the existence of facts that under this
Article 10 would prohibit the making of any such payments unless, not less
than two Business Days prior to the date of such payment, a Trust Officer of
the Trustee receives notice satisfactory to it that such payments are
prohibited by this Article 10. The Company, the Registrar or co-registrar,
the Paying Agent, a Representative or a holder of Senior Indebtedness of the
Company shall be entitled to give the


 


56

















 


notice; provided, however,
that, if an issue of Senior Indebtedness of the Company has a Representative,
only the Representative shall be entitled to give the notice.


 


The
Trustee in its individual or any other capacity shall be entitled to hold
Senior Indebtedness of the Company with the same rights it would have if it
were not Trustee. The Registrar and co-registrar and the Paying Agent shall be
entitled to do the same with like rights. The Trustee shall be entitled to all
the rights set forth in this Article 10 with respect to any Senior
Indebtedness of the Company which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.


 


SECTION 10.10.
Distribution or Notice to Representative. Whenever any Person is to make a
distribution or give a notice to holders of Senior Indebtedness of the Company,
such Person shall be entitled to make such distribution or give such notice to
their Representative (if any).


 


SECTION 10.11.
Article 10 Not To Prevent Events of Default or Limit Right To Accelerate.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article 10 shall not be construed as preventing the
occurrence of a Default. Nothing in this Article 10 shall have any effect
on the right of the Securityholders or the Trustee to accelerate the maturity
of the Securities.


 


SECTION 10.12.
Trust Moneys Not Subordinated. Notwithstanding anything contained herein to the
contrary, payments from money or the proceeds of U.S. Government Obligations
held in trust under Article 8 by the Trustee for the payment of principal
of and interest on the Securities shall not be subordinated to the prior
payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this Article 10, and none of the Securityholders
shall be obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness of the Company or any other creditor of the Company.


 


SECTION 10.13.
Trustee Entitled To Rely. Upon any payment or distribution pursuant to this
Article 10, the Trustee and the Securityholders shall be entitled to rely
(a) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 10.02 are pending,
(b) upon a certificate of the liquidating trustee or agent or other Person
making such payment or distribution to the Trustee or to the Securityholders or
(c) upon the Representatives of Senior Indebtedness of the Company for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such 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 10.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article 10, the Trustee shall be entitled to request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and
other facts pertinent to the rights of such Person under this Article 10,
and, if such evidence is not furnished, the Trustee shall be entitled to defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment. The provisions of Sections 7.01 and
7.02 shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article 10.


 


57

















 


SECTION 10.14.
Trustee To Effectuate Subordination. Each Securityholder by accepting a
Security authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of Senior
Indebtedness of the Company as provided in this Article 10 and appoints
the Trustee as attorney-in-fact for any and all such purposes.


 


SECTION 10.15.
Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Securityholders or the Company or
any other Person, money or assets to which any holders of Senior Indebtedness
of the Company shall be entitled by virtue of this Article 10 or
otherwise.


 


SECTION 10.16.
Reliance by Holders of Senior Indebtedness of the Company on Subordination
Provisions. Each Securityholder by accepting a Security acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness of the
Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.


 


Article 11


 


Subsidiary Guaranties


 


SECTION 11.01.
Guaranties. Each Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees, jointly and severally, to each Holder and to the Trustee and its
successors and assigns (a) the full and punctual payment of principal of
and interest on the Securities when due, whether at maturity, by acceleration,
by redemption or otherwise, and all other monetary obligations of the Company
under this Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary
Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such
Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under
this Article 11 notwithstanding any extension or renewal of any Guaranteed
Obligation.


 


Each
Subsidiary Guarantor waives presentation to, demand of, payment from and
protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of
any default under the Securities or the Guaranteed Obligations. The obligations
of each Subsidiary Guarantor hereunder shall not be affected by (1) the
failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person (including
any Subsidiary Guarantor) under this Indenture, the Securities or any other
agreement or otherwise; (2) any extension or renewal of any thereof;
(3) any rescission, waiver, amendment or modification of any of the terms
or provisions of this Indenture, the Securities or any other agreement;
(4) the release of any security held by any Holder or the Trustee for the
Guaranteed Obligations or any of them; (5) the failure of any Holder or
the Trustee to exercise any right or remedy against any


 


58

















 


other guarantor of the
Guaranteed Obligations; or (6) except as set forth in Section 11.06,
any change in the ownership of such Subsidiary Guarantor.


 


Each
Subsidiary Guarantor further agrees that its Subsidiary Guaranty herein
constitutes a guarantee of payment, performance and compliance when due (and
not a guarantee of collection) and waives any right to require that any resort
be had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.


 


Each
Subsidiary Guaranty is, to the extent and in the manner set forth in
Article 12, subordinated and subject in right of payment to the prior
payment in full of the principal of and premium, if any, and interest on all
Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary Guaranty
and each Subsidiary Guaranty is made subject to such provisions of this Indenture.


 


Except
as expressly set forth in Sections 8.01(b), 11.02 and 11.06, the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of
the Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of such Subsidiary Guarantor or would otherwise operate as
a discharge of such Subsidiary Guarantor as a matter of law or equity.


 


Each
Subsidiary Guarantor further agrees that its Guarantee herein shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.


 


In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against any Subsidiary Guarantor
by virtue hereof, upon the failure of the Company to pay the principal of or
interest on any Guaranteed Obligation when and as the same shall become due,
whether at maturity, by acceleration, by redemption or otherwise, or to perform
or comply with any other Guaranteed Obligation, each Subsidiary Guarantor
hereby promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (A) the unpaid amount of such Guaranteed
Obligations, (B) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (C) all
other monetary Guaranteed Obligations of the Company to the Holders and the
Trustee.


 


Each
Subsidiary Guarantor agrees that it shall not be entitled to any right of
subrogation in respect of any Obligations guaranteed hereby until payment in
full of all Obligations and all obligations to which the Obligations are
subordinated as provided in Article 12. Each Subsidiary Guarantor further
agrees that, as between it, on the one hand, and the Holders and the Trustee,
on the other hand, (i) the maturity of the Guaranteed Obligations may be
accelerated as provided in Article 6 for the purposes of such Subsidiary
Guarantor’s Subsidiary Guaranty


 


59

















 


herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the Guaranteed Obligations, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Subsidiary Guarantor for the purposes of this Section.


 


Each
Subsidiary Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section.


 


SECTION 11.02.
Limitation on Liability. Any term or provision of this Indenture to the
contrary notwithstanding, the maximum aggregate amount of the Guaranteed
Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that can be hereby Guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.


 


SECTION 11.03.
Successors and Assigns. This Article 11 shall be binding upon each
Subsidiary Guarantor and its successors and assigns and shall enure to the
benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in
the Securities shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions of this Indenture.


 


SECTION 11.04.
No Waiver. Neither a failure nor a delay on the part of either the Trustee or
the Holders in exercising any right, power or privilege under this
Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this
Article 11 at law, in equity, by statute or otherwise.


 


SECTION 11.05.
Modification. No modification, amendment or waiver of any provision of this
Article 11, nor the consent to any departure by any Subsidiary Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Trustee, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice to
or demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary
Guarantor to any other or further notice or demand in the same, similar or
other circumstances.


 


SECTION 11.06.
Release of Subsidiary Guarantor. A Subsidiary Guarantor will be released from
its obligations under this Article 11 (other than any obligation that may
have arisen under Section 11.07)


 


(1) upon the sale
(including any sale pursuant to any exercise of remedies by a holder of
Indebtedness of the Company or of such Subsidiary Guarantor) or other
disposition (including by way of consolidation or merger) of a Subsidiary
Guarantor,


 


(2) upon the sale or
disposition of all or substantially all the assets of such Subsidiary
Guarantor,


 


60

















 


(3) upon the
designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture,


 


(4) at such time as
such Subsidiary Guarantor does not have any Indebtedness outstanding that would
have required such Subsidiary Guarantor to enter into a Guaranty Agreement
pursuant to Section 4.11 and the Company provides an Officers’ Certificate
to the Trustee certifying that no such Indebtedness is outstanding and that the
Company elects to have such Subsidiary Guarantor released from this
Article 11, or


 


(5) upon defeasance of
the Securities pursuant to Article 8, or


 


(6) upon the discharge
of the Company’s obligations in accordance with this Indenture;


 


provided, however, that in
the case of clauses (1) and (2) above, (i) such sale or other
disposition is made to a Person other than the Company or a Subsidiary of the
Company, (ii) such sale or disposition is otherwise permitted by this
Indenture and (iii) the Company provides an Officers’ Certificate to the
Trustee to the effect that the Company will comply with its obligations under
Section 4.06.


 


At the request of the
Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.


 


SECTION 11.07.
Contribution. Each Subsidiary Guarantor that makes a payment under its
Subsidiary Guaranty shall be entitled upon payment in full of all Guaranteed
Obligations under this Indenture to a contribution from each other Subsidiary
Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata
portion of such payment based on the respective net assets of all the Subsidiary
Guarantors at the time of such payment determined in accordance with GAAP.


 


Article 12


 


Subordination of Subsidiary
Guaranties


 


SECTION 12.01.
Agreement To Subordinate. Each Subsidiary Guarantor agrees, and each
Securityholder by accepting a Security agrees, that the Indebtedness evidenced
by such Subsidiary Guarantor’s Subsidiary Guaranty is subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to
the prior payment of all Senior Indebtedness of such Subsidiary Guarantor and
that the subordination is for the benefit of and enforceable by the holders of
such Senior Indebtedness. The Obligations of a Subsidiary Guarantor shall in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
such Subsidiary Guarantor and only Senior Indebtedness of such Subsidiary
Guarantor (including such Subsidiary Guarantor’s Guaranty of Senior
Indebtedness of the Company) shall rank senior to the Obligations of such
Subsidiary Guarantor in accordance with the provisions set forth herein.


 


SECTION 12.02.
Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of the
assets of any Subsidiary Guarantor to creditors upon a total or partial
liquidation or a total or partial dissolution of such Subsidiary Guarantor or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Subsidiary Guarantor or its property:


 


(1) holders of Senior
Indebtedness of such Subsidiary Guarantor shall be entitled to receive payment
in full in cash of such Senior Indebtedness before Securityholders shall be 


 


61

















 


entitled
to receive any payment pursuant to the Subsidiary Guaranty of such Subsidiary
Guarantor; and


 


(2) until the Senior Indebtedness
of any Subsidiary Guarantor is paid in full in cash, any payment or
distribution to which Securityholders would be entitled but for this
Article 12 shall be made to holders of such Senior Indebtedness as their
interests may appear, except that Securityholders may receive shares of stock
and any debt securities of such Subsidiary Guarantor that are subordinated to
such Senior Indebtedness to at least the same extent as Subsidiary Guaranty.


 


SECTION 12.03.
Default on Senior Indebtedness of Subsidiary Guarantor. No Subsidiary Guarantor
shall make payments on its Subsidiary Guaranty or purchase, redeem or otherwise
retire or defease any Securities or other Obligations (collectively, “pay its
Subsidiary Guaranty”) if either of the following (a “Payment Default”) occurs
(1) any Designated Senior Indebtedness of such Subsidiary Guarantor is not
paid in full in cash when due; or (2) any other default on Designated
Senior Indebtedness of such Subsidiary Guarantor occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its
terms; unless, in either case, the Payment Default has been cured or waived and
any such acceleration has been rescinded or such Designated Senior Indebtedness
has been paid in full in cash; provided, however, that any Subsidiary Guarantor
shall be entitled to pay its Subsidiary Guaranty without regard to the
foregoing if such Subsidiary Guarantor and the Trustee receive written notice
approving such payment from the Representatives of all Designated Senior
Indebtedness with respect to which the Payment Default has occurred and is
continuing.


 


During
the continuance of any default (other than a Payment Default) with respect to
any Designated Senior Indebtedness of such Subsidiary Guarantor pursuant to
which the maturity thereof may be accelerated without further notice (except
such notice as may be required to effect such acceleration) or the expiration
of any applicable grace periods, such Subsidiary Guarantor shall not pay its
Subsidiary Guaranty for a period (a “Payment Blockage Period”) commencing upon
the receipt by the Trustee of (with a copy to such Subsidiary Guarantor)
written notice (a “Blockage Notice”) of such default from the Representative of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter. The Payment Blockage
Period shall end earlier if such Payment Blockage Period is terminated
(1) by written notice to the Trustee and such Subsidiary Guarantor from the
Person or Persons who gave such Blockage Notice; (2) because the default
giving rise to such Blockage Notice is cured, waived or otherwise no longer
continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full.


 


Notwithstanding
the provisions described in the immediately preceding two sentences (but
subject to the provisions contained in the first sentence of this Section),
unless the holders of such Designated Senior Indebtedness giving such Payment
Notice or the Representative of such Designated Senior Indebtedness shall have
accelerated the maturity of such Designated Senior Indebtedness, any Subsidiary
Guarantor shall be entitled to resume payments pursuant to its Subsidiary
Guaranty after termination of such Payment Blockage Period. No Subsidiary
Guarantor shall be subject to more than one Blockage Period in any consecutive
360-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness of such Subsidiary Guarantor during such period.
For purposes of this Section, no default or 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 of such Subsidiary Guarantor
initiating such Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Payment Blockage Period by the Representative of
such


 


62

















 


Designated Senior
Indebtedness unless such default or event of default shall have been cured or
waived for a period of not less than 90 consecutive days.


 


SECTION 12.04.
Demand for Payment. If a demand for payment is made on a Subsidiary Guarantor
pursuant to Article 11, the Trustee shall promptly notify the holders of
the Designated Senior Indebtedness of such Subsidiary Guarantor (or their
Representatives) of such demand.


 


SECTION 12.05.
When Distribution Must Be Paid Over. If a distribution is made to
Securityholders that because of this Article 12 should not have been made
to them, the Securityholders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the applicable Subsidiary Guarantor
and pay it over to them or their Representatives as their interests may appear.


 


SECTION 12.06.
Subrogation. After all Senior Indebtedness of a Subsidiary Guarantor is paid in
full and until the Securities are paid in full, Securityholders shall be
subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to Senior Indebtedness of such Subsidiary Guarantor. A
distribution made under this Article 12 to holders of such Senior
Indebtedness which otherwise would have been made to Securityholders is not, as
between the relevant Subsidiary Guarantor and Securityholders, a payment by
such Subsidiary Guarantor on such Senior Indebtedness.


 


SECTION 12.07.
Relative Rights. This Article 12 defines the relative rights of
Securityholders and holders of Senior Indebtedness of a Subsidiary Guarantor.
Nothing in this Indenture shall:


 


(1) impair, as between
a Subsidiary Guarantor and Securityholders, the obligation of such Subsidiary
Guarantor, which is absolute and unconditional, to pay its Subsidiary Guaranty
to the extent set forth in Article 11; or


 


(2) prevent the Trustee
or any Securityholder from exercising its available remedies upon a default by
such Subsidiary Guarantor under its Subsidiary Guaranty, subject to the rights
of holders of Senior Indebtedness of such Subsidiary Guarantor to receive
distributions otherwise payable to Securityholders.


 


SECTION 12.08.
Subordination May Not Be Impaired by Company. No right of any holder of
Senior Indebtedness of any Subsidiary Guarantor to enforce the subordination of
the Subsidiary Guaranty of such Subsidiary Guarantor shall be impaired by any
act or failure to act by such Subsidiary Guarantor or by its failure to comply
with this Indenture.


 


SECTION 12.09.
Rights of Trustee and Paying Agent. Notwithstanding Section 12.03, the
Trustee or Paying Agent shall continue to make payments on any Subsidiary
Guaranty and shall not be charged with knowledge of the existence of facts that
would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives written notice satisfactory to it that such payments are prohibited by
this Article 12. The Company, the relevant Subsidiary Guarantor, the
Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Senior Indebtedness of such Subsidiary Guarantor shall be entitled to give the
notice; provided, however, that, if an issue of Senior Indebtedness of any
Subsidiary Guarantor has a Representative, only the Representative shall be
entitled to give the notice.


 


The
Trustee in its individual or any other capacity shall be entitled to hold
Senior Indebtedness of any Subsidiary Guarantor with the same rights it would
have if it were not the


 


63

















 


Trustee. The Registrar and
co-registrar and the Paying Agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article 12 with
respect to any Senior Indebtedness of any Subsidiary Guarantor which may at any
time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article 12 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.


 


SECTION 12.10.
Distribution or Notice to Representative. Whenever any Person is to make a
distribution or give a notice to holders of Senior Indebtedness of any
Subsidiary Guarantor, such Person shall be entitled to make such distribution
or give such notice to their Representative (if any).


 


SECTION 12.11.
Article 12 Not To Prevent Events of Default or Limit Right To Demand
Payment. The failure to make a payment pursuant to a Subsidiary Guaranty by
reason of any provision in this Article 12 shall not be construed as
preventing the occurrence of a Default. Nothing in this Article 12 shall
have any effect on the right of the Securityholders or the Trustee to make a
demand for payment on any Subsidiary Guarantor pursuant to its Subsidiary
Guaranty.


 


SECTION 12.12.
Trustee Entitled To Rely. Upon any payment or distribution pursuant to this
Article 12, the Trustee and the Securityholders shall be entitled to rely
(a) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 12.02 are pending,
(b) upon a certificate of the liquidating trustee or agent or other Person
making such payment or distribution to the Trustee or to the Securityholders or
(c) upon the Representatives for the holders of Senior Indebtedness of any
Subsidiary Guarantor for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior
Indebtedness and other indebtedness of such Subsidiary Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 12. In the event
that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of any
Subsidiary Guarantor to participate in any payment or distribution pursuant to
this Article 12, the Trustee shall be entitled to request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness of such Subsidiary Guarantor held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee shall be
entitled to defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of
Sections 7.01 and 7.02 shall be applicable to all actions or omissions of
actions by the Trustee pursuant to this Article 12.


 


SECTION 12.13.
Trustee To Effectuate Subordination. Each Securityholder by accepting a
Security authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of Senior
Indebtedness of any Subsidiary Guarantor as provided in this Article 12
and appoints the Trustee as attorney-in-fact for any and all such purposes.


 


SECTION 12.14.
Trustee Not Fiduciary for Holders of Senior Indebtedness of Subsidiary
Guarantor. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of any Subsidiary Guarantor and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to
Securityholders or the Company or any other Person, money


 


64














 


or assets to which any
holders of such Senior Indebtedness shall be entitled by virtue of this Article 12
or otherwise.


 


SECTION 12.15.
Reliance by Holders of Senior Indebtedness of Subsidiary Guarantors on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness of any Subsidiary Guarantor, whether such Senior Indebtedness
was created or acquired before or after the issuance of the Securities, to
acquire and continue to hold, or to continue to hold, such Senior Indebtedness
and such holder of Senior Indebtedness shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Senior Indebtedness.


 


Article 13


 


Miscellaneous


 


SECTION 13.01.
Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.


 


SECTION 13.02.
Notices. Any notice or communication shall be in writing and delivered in
person or mailed by first-class mail addressed as follows:


 


if
to the Company or any Subsidiary Guarantor:


 


Valmont Industries, Inc.

One Valmont Plaza

Omaha, Nebraska 68154

Attention: Terry McClain


 


with a copy to:


 


McGrath
North Mullin & Kratz, PC LLO

Suite 3700 First National Tower

1601 Dodge Street

Omaha, NE 68102

Attention: Dave Hefflinger


 


if to the Trustee:


 


Wells
Fargo Bank, N.A.

Sixth & Marquette; N9303-120

Minneapolis, MN 55479 

Attention: Corporate Trust Services


 


The
Company, any Subsidiary Guarantor or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.


 


Any
notice or communication mailed to a Securityholder shall be mailed to the
Securityholder at the Securityholder’s address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.


 


65

















 


Failure
to mail a notice or communication to a Securityholder or any defect in it shall
not affect its sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.


 


SECTION 13.03.
Communication by Holders with Other Holders. Securityholders may communicate pursuant
to TIA § 312(b) with other Securityholders with respect to their rights
under this Indenture or the Securities. The Company, any Subsidiary Guarantor,
the Trustee, the Registrar and anyone else shall have the protection of TIA §
312(c).


 


SECTION 13.04.
Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or refrain from taking any
action under this Indenture, the Company shall furnish to the Trustee:


 


(1) an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee
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


 


(2) an Opinion of Counsel
in form and substance reasonably satisfactory to the Trustee stating that, in
the opinion of such counsel, all such conditions precedent have been complied
with.


 


SECTION 13.05.
Statements Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a covenant or condition provided for in this
Indenture shall include:


 


(1) a statement that
the individual making such certificate or opinion has read such covenant or
condition;


 


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


 


(3) a statement that,
in the opinion of such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


 


(4) a statement as to
whether or not, in the opinion of such individual, such covenant or condition
has been complied with.


 


SECTION 13.06.
When Securities Disregarded. In determining whether the Holders of the required
principal amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded. Also, subject to
the foregoing, only Securities outstanding at the time shall be considered in
any such determination.


 


SECTION 13.07.
Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their
functions.


 


66

















 


SECTION 13.08.
Legal Holidays. If a payment date is a Legal Holiday, payment shall be made on
the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.


 


SECTION 13.09.
Governing Law. This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


SECTION 13.10.
No Recourse Against Others. A director, officer, employee or stockholder, as
such, of the Company or any Subsidiary Guarantor shall not have any liability
for any obligations of the Company under the Securities or this Indenture or of
such Subsidiary Guarantor under its Subsidiary Guaranty or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.


 


SECTION 13.11.
Successors. All agreements of the Company or any Subsidiary Guarantor in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.


 


SECTION 13.12.
Multiple 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. One signed copy is enough to prove this
Indenture.


 


SECTION 13.13.
Table of Contents; Headings. The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.


 


67

















 


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


 


	
   

  	
  VALMONT
  INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President and 

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer 

  
	
   

  	
   

  	
   

  
	
   

  	
  NEWMARK
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President and 

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer 

  
	
   

  	
   

  	
   

  
	
   

  	
  PIROD,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President and 

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer 

  
	
   

  	
   

  	
   

  
	
   

  	
  VALMONT
  COATINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President and 

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer 

  



 


68

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Timothy
  P. Mowdy

  
	
   

  	
   

  	
  Name:

  	
  Timothy
  P. Mowdy

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  



 


69

















 


RULE 144A / REGULATION S /
IAI APPENDIX


 


PROVISIONS RELATING TO
INITIAL SECURITIES, PRIVATE


EXCHANGE SECURITIES


 


AND EXCHANGE SECURITIES


 


1. Definitions


 


1.1
Definitions


 


For
the purposes of this Appendix the following terms shall have the meanings
indicated below:


 


“Applicable
Procedures” means, with respect to any transfer or transaction involving a
Regulation S Global Security or beneficial interest therein, the rules and
procedures of the Depository for such a Regulation S Global Security, to
the extent applicable to such transaction and as in effect from time to time.


 


“Definitive
Security” means a certificated Initial Security or Exchange Security or Private
Exchange Security bearing, if required, the appropriate restricted securities
legend set forth in Section 2.3(e).


 


“Depository”
means The Depository Trust Company, its nominees and their respective
successors.


 


“Distribution
Compliance Period”, with respect to any Securities, means the period of 40
consecutive days beginning on and including the later of (i) the day on
which such Securities are first offered to Persons other than distributors (as
defined in Regulation S under the Securities Act) in reliance on
Regulation S and (ii) the issue date with respect to such Securities.


 


“Exchange
Securities” means (1) the 6 7/8% Senior Subordinated Notes due 2014 issued
pursuant to the Indenture in connection with a Registered Exchange Offer
pursuant to a Registration Rights Agreement and (2) Additional Securities,
if any, offered and sold by the Company pursuant to a registration statement
filed with the SEC under the Securities Act.


 


“IAI”
means an institutional “accredited investor”, as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act.


 


“Initial
Purchasers” means (1) with respect to the Initial Securities issued on the
Issue Date, Credit Suisse First Boston LLC, BNY Capital Markets, Inc.,
Wachovia Capital Markets LLC and Banc of America Securities LLC and (2) with
respect to each issuance of Additional Securities, the Persons purchasing such
Additional Securities under the related Purchase Agreement.


 


“Initial
Securities” means (1) $150,000,000 aggregate principal amount of 6 7/8%
Senior Subordinated Notes due 2014 issued on the Issue Date and (2) Additional
Securities, if any, offered and sold by the Company in a transaction exempt
from the registration requirements of the Securities Act.


 


“Private
Exchange” means the offer by the Company, pursuant to a Registration Rights
Agreement, to the Initial Purchasers to issue and deliver to each Initial
Purchaser, in exchange


 

















 


for the Initial Securities
held by the Initial Purchaser as part of its initial distribution, a like
aggregate principal amount of Private Exchange Securities.


 


“Private
Exchange Securities” means any 6 7/8% Senior Subordinated Notes due 2014 issued
in connection with a Private Exchange.


 


“Purchase
Agreement” means (1) with respect to the Initial Securities issued on the
Issue Date, the Purchase Agreement dated April 29, 2004, among the
Company, the Subsidiary Guarantors named therein and the Initial Purchasers,
and (2) with respect to each issuance of Additional Securities, the
purchase agreement or underwriting agreement among the Company and the Persons
purchasing such Additional Securities.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Registered
Exchange Offer” means the offer by the Company, pursuant to a Registration
Rights Agreement, to certain Holders of Initial Securities, to issue and
deliver to such Holders, in exchange for the Initial Securities, a like
aggregate principal amount of Exchange Securities registered under the
Securities Act.


 


“Registration
Rights Agreement” means (1) with respect to the Initial Securities issued
on the Issue Date, the Registration Rights Agreement dated April 29, 2004,
among the Company, the Subsidiary Guarantors named therein and the Initial
Purchasers and (2) with respect to each issuance of Additional Securities
issued in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company and the
Persons purchasing such Additional Securities under the related Purchase
Agreement.


 


“Rule 144A
Securities” means all Securities offered and sold to QIBs in reliance on Rule 144A.


 


“Securities”
means the Initial Securities, the Exchange Securities and the Private Exchange
Securities, treated as a single class.


 


“Securities
Act” means the Securities Act of 1933.


 


“Securities
Custodian” means the custodian with respect to a Global Security (as appointed
by the Depository), or any successor Person thereto, and shall initially be the
Trustee.


 


“Shelf
Registration Statement” means the registration statement issued by the Company
in connection with the offer and sale of Initial Securities or Private Exchange
Securities pursuant to a Registration Rights Agreement.


 


“Transfer
Restricted Securities” means Securities that bear or are required to bear the
legend relating to restrictions on transfer relating to the Securities Act set
forth in Section 2.3(e) hereto.


 

















 


1.2
Other Definitions


 


	
  Term

  	
   

  	
  Defined in Section:

  
	
   

  	
   

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  2.1(b)

  
	
  “Global
  Securities”

  	
   

  	
  2.1(a)

  
	
  “IAI
  Global Security”

  	
   

  	
  2.1(a)

  
	
  “Regulation S”

  	
   

  	
  2.1(a)

  
	
  “Regulation S
  Global Security”

  	
   

  	
  2.1(a)

  
	
  “Rule 144A”

  	
   

  	
  2.1(a)

  
	
  “Rule 144A
  Global Security”

  	
   

  	
  2.1(a)

  



 


2. The
Securities.


 


2.1
(a) Form and Dating. The Initial Securities will be offered and sold
by the Company pursuant to a Purchase Agreement. The Initial Securities will be
resold initially only to (i) QIBs in reliance on Rule 144A under the
Securities Act (“Rule 144A”) and (ii) Persons other than U.S. Persons
(as defined in Regulation S) in reliance on Regulation S under the
Securities Act (“Regulation S”). Initial Securities may thereafter be
transferred to, among others, QIBs, IAIs and purchasers in reliance on
Regulation S, subject to the restrictions on transfer set forth herein.
Initial Securities initially resold pursuant to Rule 144A shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the “Rule 144A Global Security”);
Initial Securities initially resold pursuant to Regulation S shall be
issued initially in the form of one or more permanent global Securities in
definitive, fully registered form (collectively, the “Regulation S Global
Security”); and Initial Securities to be resold to IAIs shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the “IAI Global Security”), in each case
without interest coupons and with the global securities legend and the
applicable restricted securities legend set forth in Exhibit 1 hereto,
which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Securities Custodian and registered in the name of
the Depository or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. Beneficial
ownership interests in the Regulation S Global Security will be
exchangeable for interests in a Rule 144A Global Security, an IAI Global
Security or a Definitive Security only after the expiration of the Distribution
Compliance Period.


 


Beneficial
interests in Regulation S Global Securities or IAI Global Securities may
be exchanged for interests in Rule 144A Global Securities if (1) such
exchange occurs in connection with a transfer of Securities in compliance with Rule 144A
and (2) the transferor of the beneficial interest in the Regulation S
Global Security or the IAI Global Security, as applicable, first delivers to
the Trustee a written certificate (in a form satisfactory to the Trustee) to
the effect that the beneficial interest in the Regulation S Global
Security or the IAI Global Security, as applicable, is being transferred to a
Person (a) who the transferor reasonably believes to be a QIB, (b) purchasing
for its own account or the account of a QIB in a transaction meeting the
requirements of Rule 144A, and (c) in accordance with all applicable
securities laws of the States of the United States and other jurisdictions.


 


Beneficial
interests in Regulation S Global Securities and Rule 144A Global
Securities may be exchanged for an interest in IAI Global Securities if (1) such
exchange occurs in connection with a transfer of the Securities in compliance
with an exemption under the Securities Act and (2) the transferor of the
Regulation S Global Security or Rule 144A Global Security, as
applicable, first delivers to the Trustee on behalf of the transferee a written
certificate (substantially in the form of Exhibit 2) to the effect that
the Regulation S Global Security or Rule 144A Global Security, as
applicable, is being transferred (x) to an “accredited investor” within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is an institutional investor acquiring the Securities for
its own account or for the account of such an institutional accredited
investor, for investment purposes and not with a view to or for offer or sale
in connection with any distribution in violation of the Securities Act, (y) in
accordance with all applicable securities laws of the States of the United
States and other jurisdictions and (z), in


 

















 


an aggregate principal
amount of Securities of no less than $250,000 or, if such transfer is in an
aggregate principal amount of Securities of less than $250,000, such transferor
shall also deliver to the Trustee an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act.


 


Beneficial
interests in a Rule 144A Global Security or an IAI Global Security may be
transferred to a Person who takes delivery in the form of an interest in a
Regulation S Global Security, whether before or after the expiration of
the Distribution Compliance Period, only if the transferor first delivers to
the Trustee a written certificate (in the form provided in the Indenture) to
the effect that such transfer is being made in accordance with Rule 903 or
904 of Regulation S or Rule 144 (if applicable).


 


The
Rule 144A Global Security, the IAI Global Security and the
Regulation S Global Security are collectively referred to herein as
“Global Securities”. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as hereinafter
provided.


 


(b) Book-Entry
Provisions. This Section 2.1(b) shall apply only to a Global Security
deposited with or on behalf of the Depository.


 


The
Company shall execute and the Trustee shall, in accordance with this Section 2.1(b),
authenticate and deliver initially one or more Global Securities that (a) shall
be registered in the name of the Depository for such Global Security or Global
Securities or the nominee of such Depository and (b) shall be delivered by
the Trustee to such Depository or pursuant to such Depository’s instructions or
held by the Trustee as custodian for the Depository.


 


Members
of, or participants in, the Depository (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf
by the Depository or by the Trustee as the custodian of the Depository or under
such Global Security, and the Company, the Trustee and any agent of the Company
or the Trustee shall be entitled to treat the Depository as the absolute owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices of
such Depository governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.


 


(c) Definitive
Securities. Except as provided in this Section 2.1 or Section 2.3 or
2.4, owners of beneficial interests in Global Securities shall not be entitled
to receive physical delivery of Definitive Securities.


 


2.2
Authentication. The Trustee shall authenticate and deliver: (1) on the
Issue Date, an aggregate principal amount of $150.0 million 6 7/8% Senior
Subordinated Notes due 2014, (2) any Additional Securities for an original
issue in an aggregate principal amount specified in the written order of the
Company pursuant to this Section 2.2 and (3) Exchange Securities or
Private Exchange Securities for issue only in a Registered Exchange Offer or a
Private Exchange, respectively, pursuant to a Registration Rights Agreement,
for a like principal amount of Initial Securities, in each case upon a written
order of the Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company. Such order shall
specify the amount of the Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated and, in the case of any
issuance of Additional


 

















 


Securities pursuant to Section 2.13
of the Indenture, shall certify that such issuance is in compliance with Section 4.03
of the Indenture.


 


2.3
Transfer and Exchange.


 


(a) Transfer
and Exchange of Definitive Securities. When Definitive Securities are presented
to the Registrar with a request:


 


(x)    to register the transfer of such Definitive
Securities; or


 


(y)         to exchange such Definitive
Securities for an equal principal amount of Definitive Securities of other
authorized denominations,


 


the Registrar shall register
the transfer or make the exchange as requested if its reasonable requirements
for such transaction are met; provided, however, that the Definitive Securities
surrendered for transfer or exchange:


 


(i) shall
be duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or its attorney duly authorized in writing; and


 


(ii) if
such Definitive Securities are required to bear a restricted securities legend,
they are being transferred or exchanged pursuant to an effective registration
statement under the Securities Act, pursuant to Section 2.3(b) or
pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:


 


(A) if
such Definitive Securities are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification from
such Holder to that effect; or


 


(B) if
such Definitive Securities are being transferred to the Company, a
certification to that effect; or


 


(C) if
such Definitive Securities are being transferred (x) pursuant to an
exemption from registration in accordance with Rule 144A,
Regulation S or Rule 144 under the Securities Act; or (y) in
reliance upon another exemption from the requirements of the Securities Act: (i) a
certification to that effect (in the form set forth on the reverse of the
Security) and (ii) if the Company so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section 2.3(e)(i).


 


(b) Restrictions
on Transfer of a Definitive Security for a Beneficial Interest in a Global
Security. A Definitive Security may not be exchanged for a beneficial interest
in a Rule 144A Global Security, an IAI Global Security or a
Regulation S Global Security except upon satisfaction of the requirements
set forth below. Upon receipt by the Trustee of a Definitive Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:


 














 


(i) certification,
in the form set forth on the reverse of the Security, that such Definitive
Security is either (A) being transferred to a QIB in accordance with Rule 144A,
(B) being transferred to an IAI or (C) being transferred after
expiration of the Distribution Compliance Period by a Person who initially
purchased such Security in reliance on Regulation S to a buyer who elects
to hold its interest in such Security in the form of a beneficial interest in
the Regulation S Global Security; and


 


(ii) written
instructions directing the Trustee to make, or to direct the Securities
Custodian to make, an adjustment on its books and records with respect to such Rule 144A
Global Security (in the case of a transfer pursuant to clause (b)(i)(A)), IAI
Global Security (in the case of a transfer pursuant to clause (b)(i)(B)) or
Regulation S Global Security (in the case of a transfer pursuant to clause
(b)(i)(C)) to reflect an increase in the aggregate principal amount of the
Securities represented by the Rule 144A Global Security, IAI Global
Security or Regulation S Global Security, as applicable, such instructions
to contain information regarding the Depository account to be credited with
such increase,


 


then the Trustee shall
cancel such Definitive Security and cause, or direct the Securities Custodian
to cause, in accordance with the standing instructions and procedures existing
between the Depository and the Securities Custodian, the aggregate principal
amount of Securities represented by the Rule 144A Global Security, IAI
Global Security or Regulation S Global Security, as applicable, to be
increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A
Global Security, IAI Global Security or Regulation S Global Security, as
applicable, equal to the principal amount of the Definitive Security so
canceled. If no Rule 144A Global Securities, IAI Global Securities or
Regulation S Global Securities, as applicable, are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers’ Certificate of the Company, a new Rule 144A
Global Security, IAI Global Security or Regulation S Global Security, as
applicable, in the appropriate principal amount.


 


(c) Transfer
and Exchange of Global Securities.


 


(i) The
transfer and exchange of Global Securities or beneficial interests therein
shall be effected through the Depository, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if any) and
the procedures of the Depository therefor. A transferor of a beneficial
interest in a Global Security shall deliver to the Registrar a written order
given in accordance with the Depository’s procedures containing information
regarding the participant account of the Depository to be credited with a
beneficial interest in the Global Security. The Registrar shall, in accordance
with such instructions, instruct the Depository to credit to the account of the
Person specified in such instructions a beneficial interest in the Global
Security and to debit the account of the Person making the transfer the
beneficial interest in the Global Security being transferred.


 


(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global
Security to a beneficial interest in another Global Security, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount of the Global Security to which such interest is being
transferred in an amount equal to the principal amount of the interest to be so
transferred, and the Registrar shall reflect on its books and records the date
and a corresponding decrease in the principal amount of the Global Security
from which such interest is being transferred.


 


(iii) Notwithstanding
any other provisions of this Appendix (other than the provisions set forth in Section 2.4),
a Global Security may not be transferred as a whole except by the Depository to


 

















 


a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository.


 


(iv) In
the event that a Global Security is exchanged for Definitive Securities
pursuant to Section 2.4 of this Appendix, prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration Statement
with respect to such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of this Section 2.3 (including the certification requirements
set forth on the reverse of the Initial Securities intended to ensure that such
transfers comply with Rule 144A, Regulation S or another applicable
exemption under the Securities Act, as the case may be) and such other
procedures as may from time to time be adopted by the Company.


 


(d) Restrictions
on Transfer of Regulation S Global Securities. During the Distribution
Compliance Period, beneficial ownership interests in Regulation S Global
Securities may only be sold, pledged or transferred in accordance with the
Applicable Procedures and only (i) to the Company, (ii) in an
offshore transaction in accordance with Regulation S or (iii) pursuant
to an effective registration statement under the Securities Act, in each case
in accordance with any applicable securities laws of any State of the United
States.


 


(e) Legend.


 


(i) Except
as permitted by the following paragraphs (ii), (iii) and (iv), each
Security certificate evidencing the Global Securities (and all Securities
issued in exchange therefor or in substitution thereof), in the case of Securities
offered otherwise than in reliance on Regulation S, shall bear a legend in
substantially the following form:


 


THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THE HOLDER OF THIS SECURITY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (IV) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT 


 

















 


PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V), IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.


 


Each
certificate evidencing a Security offered in reliance on Regulation S
shall bear a legend in substantially the following form:


 


THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS
GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.


 


Each
Definitive Security shall also bear the following additional legend:


 


IN CONNECTION WITH ANY
TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


(ii) Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Security) pursuant to Rule 144
under the Securities Act, the Registrar shall permit the transferee thereof to
exchange such Transfer Restricted Security for a certificated Security that
does not bear the legend set forth above and rescind any restriction on the
transfer of such Transfer Restricted Security, if the transferor thereof
certifies in writing to the Registrar that such sale or transfer was made in
reliance on Rule 144 (such certification to be in the form set forth on
the reverse of the Security).


 


(iii) After
a transfer of any Initial Securities or Private Exchange Securities pursuant to
and during the period of the effectiveness of a Shelf Registration Statement
with respect to such Initial Securities or Private Exchange Securities, as the
case may be, all requirements pertaining to legends on such Initial Security or
such Private Exchange Security will cease to apply, the requirements requiring
any such Initial Security or such Private Exchange Security issued to certain
Holders be issued in global form will cease to apply, and a certificated
Initial Security or Private Exchange Security or an Initial Security or Private
Exchange Security in global form, in each case without restrictive transfer
legends, will be available to the transferee of the Holder of such Initial
Securities or Private Exchange Securities upon exchange of such transferring
Holder’s certificated Initial Security or Private Exchange Security or
directions to transfer such Holder’s interest in the Global Security, as
applicable.


 


(iv) Upon
the consummation of a Registered Exchange Offer with respect to the Initial
Securities, all requirements pertaining to such Initial Securities that Initial
Securities issued to certain Holders be issued in global form will still apply
with respect to Holders of such Initial Securities that do not exchange their
Initial Securities, and Exchange Securities in certificated or global form, in
each case without the restricted securities legend set forth in Exhibit 1
hereto will be available to Holders that exchange such Initial Securities in
such Registered Exchange Offer.


 

















 


(v) Upon
the consummation of a Private Exchange with respect to the Initial Securities,
all requirements pertaining to such Initial Securities that Initial Securities
issued to certain Holders be issued in global form will still apply with
respect to Holders of such Initial Securities that do not exchange their
Initial Securities, and Private Exchange Securities in global form with the
global securities legend and the applicable restricted securities legend set
forth in Exhibit 1 hereto will be available to Holders that exchange such
Initial Securities in such Private Exchange.


 


(f) Cancellation
or Adjustment of Global Security. At such time as all beneficial interests in a
Global Security have either been exchanged for Definitive Securities, redeemed,
purchased or canceled, such Global Security shall be returned to the Depository
for cancellation or retained and canceled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Security is exchanged
for Definitive Securities, redeemed, purchased or canceled, the principal
amount of Securities represented by such Global Security shall be reduced and
an adjustment shall be made on the books and records of the Trustee (if it is
then the Securities Custodian for such Global Security) with respect to such
Global Security, by the Trustee or the Securities Custodian, to reflect such
reduction.


 


(g) No
Obligation of the Trustee.


 


(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a
Global Security, a member of, or a participant in the Depository or other
Person with respect to the accuracy of the records of the Depository or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of any
notice (including any notice of redemption) or the payment of any amount, under
or with respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under the Securities
shall be given or made only to or upon the order of the registered Holders
(which shall be the Depository or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security shall be
exercised only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
members, participants and any beneficial owners.


 


(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depository participants,
members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.


 


2.4
Definitive Securities.


 


(a) A
Global Security deposited with the Depository or with the Trustee as Securities
Custodian for the Depository pursuant to Section 2.1 shall be transferred
to the beneficial owners thereof in the form of Definitive Securities in an
aggregate principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such transfer complies
with Section 2.3 hereof and (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security and the Depository fails to appoint a successor depository or if at
any time such Depository ceases to be a “clearing


 

















 


agency” registered under the
Exchange Act and, in either case, a successor depository is not appointed by
the Company within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Securities under this Indenture.


 


(b) Any
Global Security that is transferable to the beneficial owners thereof pursuant
to this Section 2.4 shall be surrendered by the Depository to the Trustee
located at its principal corporate trust office in the Borough of Manhattan,
The City of New York, to be so transferred, in whole or from time to time in
part, without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section 2.4 shall be
executed, authenticated and delivered only in denominations of $1,000 principal
amount and any integral multiple thereof and registered in such names as the
Depository shall direct. Any Definitive Security delivered in exchange for an
interest in the Transfer Restricted Security shall, except as otherwise provided
by Section 2.3(e) hereof, bear the applicable restricted securities
legend and definitive securities legend set forth in Exhibit 1 hereto.


 


(c) Subject
to the provisions of Section 2.4(b) hereof, the registered Holder of
a Global Security shall be entitled to grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.


 


(d) In
the event of the occurrence of one of the events specified in Section 2.4(a) hereof,
the Company shall promptly make available to the Trustee a reasonable supply of
Definitive Securities in definitive, fully registered form without interest
coupons. In the event that such Definitive Securities are not issued, the
Company expressly acknowledges, with respect to the right of any Holder to
pursue a remedy pursuant to Section 6.06 of this Indenture, the right of
any beneficial owner of Securities to pursue such remedy with respect to the
portion of the Global Security that represents such beneficial owner’s
Securities as if such Definitive Securities had been issued.


 

















 


EXHIBIT 1 

to

RULE 144A / REGULATION S / IAI APPENDIX 

[FORM OF FACE OF INITIAL SECURITY]


 


[Global Securities Legend]


 


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


 


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF.


 


[[FOR
REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER OF
COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES
WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS
MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]


 


[Restricted
Securities Legend for Securities offered otherwise than in

Reliance on Regulation S]


 


THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.


 


THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (III) TO AN INSTITUTIONAL


 

















 


“ACCREDITED INVESTOR” (AS
DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (V), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.


 


[Restricted Securities
Legend for Securities Offered in Reliance on Regulation S.]


 


THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT
TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE
MEANINGS GIVEN TO THEM IN REGULATIONS UNDER THE SECURITIES ACT.


 


[Definitive Securities
Legend]


 


IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 

















 


	
  No.

  	
   

  	
  $

  	
   

  



 


6 7/8% Senior Subordinated
Note due 2014


 


Valmont
Industries, Inc., a Delaware corporation, promises to pay to                                    
, or registered assigns, the principal sum of                                                                     
Dollars on May 1, 2014.


 


Interest
Payment Dates: May 1 and November 1.


 


Record
Dates: April 15 and October 15.


 


Additional
provisions of this Security are set forth on the other side of this Security.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VALMONT
  INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  TRUSTEE’S
  CERTIFICATE OF AUTHENTICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WELLS
  FARGO BANK, N.A. as

  	
   

  	
   

  
	
  Trustee, certifies that this is one of the Securities
  referred to in the Indenture.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  
						



 

















 


[FORM OF REVERSE SIDE
OF INITIAL SECURITY]


 


6 7/8% Senior Subordinated
Note Due 2014


 


1. Interest


 


Valmont
Industries, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the “Company”), promises to pay interest on the principal amount
of this Security at the rate per annum shown above; provided, however, that if
a Registration Default (as defined in the Registration Rights Agreement)
occurs, additional interest will accrue on this Security at a rate of 0.25% per
annum (increasing by an additional 0.25% per annum after each consecutive
90-day period that occurs after the date on which such Registration Default
occurs up to a maximum additional interest rate of 1.00%) from and including
the date on which any such Registration Default shall occur to but excluding
the date on which all Registration Defaults have been cured. The Company will
pay interest semiannually on May 1 and November 1 of each year,
commencing November 1, 2004. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from May 4, 2004. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay interest on overdue
principal at the rate borne by this Security plus 1.0% per annum, and it will
pay interest on overdue installments of interest at the same rate to the extent
lawful.


 


2. Method of Payment


 


The
Company will pay interest on the Securities (except defaulted interest) to the
Persons who are registered holders of Securities at the close of business on the
April 15 or October 15 next preceding the interest payment date even
if Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of the Securities represented by a
Global Security (including principal, premium and interest) will be made by
wire transfer of immediately available funds to the accounts specified by the
Depository. The Company will make all payments in respect of a certificated
Security (including principal, premium and interest) by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on
a certificated Security will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).


 


3. Paying Agent and
Registrar


 


Initially,
Wells Fargo Bank, N.A., a national banking association (the “Trustee”), will
act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice. The Company or any of
its domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent, Registrar or co-registrar.


 


4. Indenture


 


The
Company issued the Securities under an Indenture dated as of May 4, 2004
(the “Indenture”), among the Company, the Subsidiary Guarantors and the
Trustee. The terms of the


 

















 


Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “Act”). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.


 


The
Securities are general unsecured obligations of the Company. The Company shall
be entitled, subject to its compliance with Section 4.03 of the Indenture,
to issue Additional Securities pursuant to Section 2.13 of the Indenture.
The Initial Securities issued on the Issue Date, any Additional Securities and
all Exchange Securities or Private Exchange Securities issued in exchange
therefor will be treated as a single class for all purposes under the
Indenture. The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to, among other things, incur additional
indebtedness; pay dividends or distributions on, or redeem or repurchase,
capital stock; make investments; issue or sell capital stock of subsidiaries;
engage in transactions with affiliates; transfer or sell assets; guarantee
indebtedness; restrict dividends or other payments of subsidiaries; and
consolidate, merge or transfer all or substantially all of its assets and the
assets of its subsidiaries. These covenants are subject to important exceptions
and qualifications.


 


5. Optional Redemption


 


Except
as set forth below, the Company shall not be entitled to redeem the Securities.


 


On
and after May 1, 2009, the Company shall be entitled at its option to
redeem all or a portion of the Securities upon not less than 30 nor more than
60 days’ notice, at the redemption prices (expressed in percentages of
principal amount on the redemption date), plus accrued interest to the
redemption date (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on May 1 of the years set
forth below:


 


	
  Period

  	
   

  	
  Redemption Price

  	
   

  
	
  2009

  	
   

  	
  103.438

  	
  %

  
	
  2010

  	
   

  	
  102.292

  	
  %

  
	
  2011

  	
   

  	
  101.146

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition, prior to May 1, 2007, the Company shall be entitled at its
option on one or more occasions to redeem Securities (which includes Additional
Securities, if any) in an aggregate principal amount not to exceed 35% of the
aggregate principal amount of the Securities (which includes Additional
Securities, if any) originally issued at a redemption price (expressed as a
percentage of principal amount) of 106.875%, plus accrued and unpaid interest
to the redemption date, with the net cash proceeds from one or more Public
Equity Offerings; provided, however, that (1) at least 65% of such
aggregate principal amount of Securities (which includes Additional Securities,
if any) remains outstanding immediately after the occurrence of each such redemption
(other than Securities held, directly or indirectly, by the Company or its
Affiliates); and (2) each such redemption occurs within 60 days after
the date of the related Public Equity Offering.


 














 


6. Notice of Redemption


 


Notice
of redemption will be mailed at least 30 days but not more than 60 days
before the redemption date to each Holder of Securities to be redeemed at his
registered address. Securities in denominations larger than $1,000 principal
amount may be redeemed in part but only in whole multiples of $1,000.
Securities in denominations of $1,000 or less in principal amount will be
redeemed in whole and not in part. If money sufficient to pay the redemption
price of and accrued interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.


 


7. Put Provisions


 


Upon
a Change of Control, any Holder of Securities will have the right to cause the
Company to repurchase all or any part of the Securities of such Holder at a
repurchase price in cash equal to 101% of the principal amount of the
Securities to be repurchased plus accrued interest to the date of repurchase
(subject to the right of holders of record on the relevant record date to
receive interest due on the related interest payment date) as provided in, and
subject to the terms of, the Indenture.


 


8. Guaranty


 


The
payment by the Company of the principal of, and premium and interest on, the
Securities is fully and unconditionally guaranteed on a joint and several
senior subordinated basis by each of the Subsidiary Guarantors to the extent
set forth in the Indenture.


 


9. Subordination


 


The
Securities are subordinated to Senior Indebtedness of the Company and the
Subsidiary Guarantors on the terms and subject to the conditions set forth in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Securities may be paid. Each Securityholder by
accepting a Security agrees to the subordination provisions contained in the
Indenture and authorizes the Trustee to give them effect and appoints the
Trustee as attorney-in-fact for such purpose.


 


10. Denominations; Transfer;
Exchange


 


The
Securities are in registered form without coupons in denominations of $1,000
principal amount and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or any Securities for a
period of 15 days before a selection of Securities to be redeemed or
15 days before an interest payment date.


 


11. Persons Deemed Owners


 


The
registered Holder of this Security may be treated as the owner of it for all
purposes.


 

















 


12. Unclaimed Money


 


If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the Company at its
request unless an abandoned property law designates another Person. After any
such payment, Holders entitled to the money must look only to the Company and
not to the Trustee for payment.


 


13. Discharge and Defeasance


 


Subject
to certain conditions, the Company at any time shall be entitled to terminate
some or all of its and the Subsidiary Guarantors’ obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.


 


14. Amendment; Waiver


 


Subject
to certain exceptions set forth in the Indenture, (a) the Indenture and
the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount outstanding of the Securities and (b) any
default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount outstanding of the
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Securityholder, the Company, the Subsidiary Guarantors and
the Trustee shall be entitled to amend the Indenture or the Securities to cure
any ambiguity, omission, defect or inconsistency, or to comply with Article 5
of the Indenture, or to provide for uncertificated Securities in addition to or
in place of certificated Securities, to limit or terminate the benefits
available to any holder of Senior Indebtedness of the Company or of a
Subsidiary Guarantor, or to add guarantees with respect to the Securities,
including Subsidiary Guaranties, or to secure the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company or
the Subsidiary Guarantors, or to comply with any requirement of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to make
amendments to provisions of the Indenture relating to the transfer and
legending of the Securities.


 


15. Defaults and Remedies


 


Under
the Indenture, Events of Default include (a) default for 30 days in
payment of interest on the Securities; (b) default in payment of principal
on the Securities at maturity, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise, or failure by the Company to redeem
or purchase Securities when required; (c) failure by the Company or any
Subsidiary Guarantor to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (d) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company, any Subsidiary Guarantor or any
Significant Subsidiary if the amount accelerated (or so unpaid) exceeds $10.0
million; (e) certain events of bankruptcy or insolvency with respect to
the Company, the Subsidiary Guarantors and the Significant Subsidiaries; (f) certain
judgments or decrees for the payment of money in excess of $10.0 million; and (g) certain
defaults with respect to Subsidiary Guaranties. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Securities being due and payable immediately upon the
occurrence of such Events of Default.


 


Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities
unless it receives


 

















 


indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.


 


16. Trustee Dealings with
the Company


 


Subject
to certain limitations imposed by the Act, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.


 


17. No Recourse Against
Others


 


A
director, officer, employee or stockholder, as such, of the Company or any
Subsidiary Guarantor or the Trustee shall not have any liability for any
obligations of the Company under the Securities or the Indenture or of such
Subsidiary Guarantor under its Subsidiary Guaranty or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.


 


18. Authentication


 


This
Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Security.


 


19. Abbreviations


 


Customary
abbreviations may be used in the name of a Securityholder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).


 


20. CUSIP Numbers


 


Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures the Company has caused CUSIP numbers to be printed on
the Securities and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Securityholders. No representation is made as to
the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.


 


21. Holders’ Compliance with
Registration Rights Agreement


 


Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, including the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.


 

















 


22. Governing Law


 


THIS
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


The
Company will furnish to any Securityholder upon written request and without
charge to the Security holder a copy of the Indenture which has in it the text
of this Security in larger type. Requests may be made to:


 


Valmont Industries, Inc.

One Valmont Plaza

Omaha, Nebraska 68154

Attention: Terry McClain


 

















 


ASSIGNMENT FORM


 


To assign this Security,
fill in the form below:


 


I or we assign and transfer
this Security to


 


(Print
or type assignee’s name, address and zip code)


 


(Insert
assignee’s soc. sec. or tax I.D. No.)


 


and irrevocably appoint agent
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.


 


	
  Date:

  	
  Your Signature:

  



 


Sign exactly as your name
appears on the other side of this Security.


 


In connection with any
transfer of any of the Securities evidenced by this certificate occurring prior
to the expiration of the period referred to in Rule 144(k) under the
Securities Act after the later of the date of original issuance of such
Securities and the last date, if any, on which such Securities were owned by
the Company or any Affiliate of the Company, the undersigned confirms that such
Securities are being transferred in accordance with its terms:


 


CHECK ONE BOX BELOW


 


to the Company; or


 


(1)                                  pursuant to an
effective registration statement under the Securities Act of 1933; or


 


(2)                                  inside the
United States to a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the Securities Act of 1933; or


 


(3)                                  outside the
United States in an offshore transaction within the meaning of
Regulation S under the Securities Act of 1933 in compliance with Rule 904
under the Securities Act of 1933; or


 


(4)                                  pursuant to the
exemption from registration provided by Rule 144 under the Securities Act
of 1933; or


 


(5)                                  to an
institutional “accredited investor” (as defined in Rule 501(a)(l), (2), (3) or
(7) under the Securities Act of 1933) that has furnished to the Trustee a
signed letter containing certain representations and agreements and, if
applicable, an opinion of counsel satisfactory to the Company that such
transfer is in compliance with the Securities Act of 1933.


 

















 


Unless one of the boxes is
checked, the Trustee will refuse to register any of the Securities evidenced by
this certificate in the name of any person other than the registered holder
thereof; provided, however, that if box (4) is checked, the Trustee shall
be entitled to require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature must be
  guaranteed

  	
   

  	
   

  	
  Signature

  



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 

















 


TO BE COMPLETED BY PURCHASER
IF (2) ABOVE IS CHECKED.


 


The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities Act of 1933,
and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company
and the Subsidiary Guarantors as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by Rule 144A.


 


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice:
  To be executed by an executive officer

  



 

















 


[TO BE ATTACHED TO GLOBAL
SECURITIES]


 


SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY


 


The following increases or
decreases in this Global Security have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal amount

  of this Global

  Security

  	
   

  	
  Amount of

  increase in

  Principal

  amount of this

  Global Security

  	
   

  	
  Principal

  amount of this

  Global Security

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized officer

  of Trustee or

  Securities

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If
you want to elect to have this Security purchased by the Company pursuant to Section 4.06
or 4.10 of the Indenture, check the box:


 


If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 or 4.10 of the Indenture, state the amount in
principal amount: $                    


 


	
  Dated:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name

  appears
  on the other side

  of
  this Security.)

  



 


	
  Signature

  Guarantee:

  	
   

  



 


(Signature must be
guaranteed)


 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 

















 


EXHIBIT A TO THE

RULE 144A / REGULATION S / IAI APPENDIX


 


FORM OF FACE OF
EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY


 


*/**/


 






*/ If the Security is to be
issued in global form add the Global Securities Legend from Exhibit 1 to
Appendix A and the attachment from such Exhibit 1 captioned “[TO BE
ATTACHED TO GLOBAL SECURITIES] — SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY”.


 


**/If the Security is a
Private Exchange Security issued in a Private Exchange to an Initial Purchaser
holding an unsold portion of its initial allotment, add the Restricted Securities
Legend from Exhibit 1 to Appendix A and replace the Assignment Form included
in this Exhibit A with the Assignment Form included in such Exhibit 1.


 














 


	
  No.

  	
  $

  



 


6 7/8% Senior Subordinated
Notes due 2014


 


Valmont
Industries, Inc. a Delaware corporation, promises to pay to   
                    
                    
                    
       , or registered assigns, the principal sum of 
                    
                    
                    
            Dollars on May 1, 2014.


 


Interest
Payment Dates: May 1 and November 1.


 


Record
Dates: April 15 and October 15.


 


Additional
provisions of this Security are set forth on the other side of this Security.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  VALMONT
  INDUSTRIES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  TRUSTEE’S CERTIFICATE OF

  AUTHENTICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WELLS
  FARGO BANK, N.A. as

  	
   

  	
   

  
	
  Trustee, certifies that

  	
   

  	
   

  
	
  this is one of the

  	
   

  	
   

  
	
  Securities referred to in

  	
   

  	
   

  
	
  the Indenture.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  
						



 

















 


FORM OF REVERSE SIDE OF
EXCHANGE

SECURITY OR PRIVATE EXCHANGE SECURITY


 


6 7/8% Senior Subordinated
Note Due 2014


 


1. Interest


 


Valmont
Industries, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the “Company”), promises to pay interest on the principal amount
of this Security at the rate per annum shown above [; provided, however, that
if a Registration Default (as defined in the Registration Rights Agreement)
occurs, additional interest will accrue on this Security at a rate of 0.25% per
annum (increasing by an additional 0.25% per annum after each consecutive
90-day period that occurs after the date on which such Registration Default
occurs up to a maximum additional interest rate of 1.00%) from and including
the date on which any such Registration Default shall occur to but excluding
the date on which all Registration Defaults have been cured.](1) The Company
will pay interest semiannually on May 1 and November 1 of each year,
commencing November 1, 2004. Interest on the Securities will accrue from
the most recent date to which interest has been paid or, if no interest has
been paid, from May 4, 2004. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay interest on overdue
principal at the rate borne by this Security plus 1.0% per annum, and it will
pay interest on overdue installments of interest at the same rate to the extent
lawful.


 


2. Method of Payment


 


The
Company will pay interest on the Securities (except defaulted interest) to the
Persons who are registered holders of Securities at the close of business on
the April 15 or October 15 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest) by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on a certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than


 






(1) Insert if at the
date of issuance of the Exchange Security or Private Exchange Security (as the
case may be) any Registration Default has occurred with respect to the related
Initial Securities during the interest period in which such date of issuance
occurs.


 

















 


30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).


 


3. Paying Agent and
Registrar


 


Initially,
Wells Fargo Bank, N.A., a national banking association (the “Trustee”), will
act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.


 


4. Indenture


 


The
Company issued the Securities under an Indenture dated as of May 4, 2004
(the “Indenture”), among the Company, the Subsidiary Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “Act”). Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.


 


The
Securities are general unsecured obligations of the Company. The Company shall
be entitled, subject to its compliance with Section 4.03 of the Indenture,
to issue Additional Securities pursuant to Section 2.13 of the Indenture.
The Initial Securities issued on the Issue Date, any Additional Securities and
all Exchange Securities or Private Exchange Securities issued in exchange
therefor will be treated as a single class for all purposes under the
Indenture. The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to, among other things, incur additional
indebtedness; pay dividends or distributions on, or redeem or repurchase,
capital stock; make investments; issue or sell capital stock of subsidiaries;
engage in transactions with affiliates; transfer or sell assets; guarantee
indebtedness; restrict dividends or other payments of subsidiaries; and
consolidate, merge or transfer all or substantially all of its assets and the
assets of its subsidiaries. These covenants are subject to important exceptions
and qualifications.


 


5. Optional Redemption


 


Except
as set forth below, the Company shall not be entitled to redeem the Securities.


 


On
and after May 1, 2009, the Company shall be entitled at its option to
redeem all or a portion of the Securities upon not less than 30 nor more than
60 days’ notice, at the redemption prices (expressed in percentages of
principal amount on the redemption date), plus accrued interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on May 1 of the years set
forth below:


 


	
  Period

  	
   

  	
  Redemption Price

  	
   

  
	
  2009

  	
   

  	
  103.438

  	
  %

  
	
  2010

  	
   

  	
  102.292

  	
  %

  
	
  2011

  	
   

  	
  101.146

  	
  %

  
	
  2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 

















 


In
addition, prior to May 1, 2007, the Company shall be entitled at its
option on one or more occasions to redeem Securities (which includes Additional
Securities, if any) in an aggregate principal amount not to exceed 35% of the
aggregate principal amount of the Securities (which includes Additional
Securities, if any) originally issued at a redemption price (expressed as a
percentage of principal amount) of 106.875%, plus accrued and unpaid interest
to the redemption date, with the net cash proceeds from one or more Public
Equity Offerings; provided, however, that (1) at least 65% of such
aggregate principal amount of Securities (which includes Additional Securities,
if any) remains outstanding immediately after the occurrence of each such
redemption (other than Securities held, directly or indirectly, by the Company
or its Affiliates); and (2) each such redemption occurs within
60 days after the date of the related Public Equity Offering.


 


6. Notice of Redemption


 


Notice
of redemption will be mailed at least 30 days but not more than 60 days
before the redemption date to each Holder of Securities to be redeemed at his
registered address. Securities in denominations larger than $1,000 principal
amount may be redeemed in part but only in whole multiples of $1,000.
Securities in denominations of $ 1,000 or less in principal amount will be
redeemed in whole and not in part. If money sufficient to pay the redemption
price of and accrued interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.


 


7. Put Provisions


 


Upon
a Change of Control, any Holder of Securities will have the right to cause the
Company to repurchase all or any part of the Securities of such Holder at a
repurchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued interest to the date of repurchase (subject to the
right of holders of record on the relevant record date to receive interest due
on the related interest payment date) as provided in, and subject to the terms
of, the Indenture.


 


8. Guaranty


 


The
payment by the Company of the principal of, and premium and interest on, the
Securities is fully and unconditionally guaranteed on a joint and several
senior subordinated basis by each of the Subsidiary Guarantors to the extent
set forth in the Indenture.


 


9. Subordination


 


The
Securities are subordinated to Senior Indebtedness of the Company and the
Subsidiary Guarantors on the terms and subject to the conditions set forth in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Securities may be paid. Each Securityholder by
accepting a Security agrees to the subordination provisions contained in the
Indenture and authorizes the Trustee to give them effect and appoints the
Trustee as attorney-in-fact for such purpose.


 


10. Denominations;
Transfer; Exchange


 


The
Securities are in registered form without coupons in denominations of $ 1,000
principal amount and whole multiples of $ 1,000. A Holder may transfer or
exchange Securities in


 

















 


accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be
redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment date.


 


11. Persons Deemed Owners


 


The
registered Holder of this Security may be treated as the owner of it for all
purposes.


 


12. Unclaimed Money


 


If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the Company at its
request unless an abandoned property law designates another Person. After any
such payment, Holders entitled to the money must look only to the Company and
not to the Trustee for payment.


 


13. Discharge and Defeasance


 


Subject
to certain conditions, the Company at any time shall be entitled to terminate
some or all of its and the Subsidiary Guarantors’ obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.


 


14. Amendment; Waiver


 


Subject
to certain exceptions set forth in the Indenture, (a) the Indenture and
the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount outstanding of the Securities and (b) any
default or noncornpliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount outstanding of the
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Securityholder, the Company, the Subsidiary Guarantors and
the Trustee shall be entitled to amend the Indenture or the Securities to cure
any ambiguity, omission, defect or inconsistency, or to comply with Article 5
of the Indenture, or to provide for uncertificated Securities in addition to or
in place of certificated Securities, to limit or terminate the benefits available
to any holder of Senior Indebtedness of the Company or any Subsidiary
Guarantor, or to add guarantees with respect to the Securities, including
Subsidiary Guaranties, or to secure the Securities, or to add additional
covenants or surrender rights and powers conferred on the Company or the
Subsidiary Guarantors, or to comply with any requirement of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to make
amendments to provisions of the Indenture relating to the form, authentication,
transfer and legending of the Securities.


 


15. Defaults and Remedies


 


Under
the Indenture, Events of Default include (a) default for 30 days in
payment of interest on the Securities; (b) default in payment of principal
on the Securities at maturity, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise, or failure by the Company to redeem
or purchase Securities when required; (c) failure by the Company or any
Subsidiary Guarantor to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (d) certain
accelerations (including failure to


 

















 


pay within any grace period
after final maturity) of other Indebtedness of the Company, any Subsidiary
Guarantor or any Significant Subsidiary if the amount accelerated (or so
unpaid) exceeds $10.0 million; (e) certain events of bankruptcy or
insolvency with respect to the Company, the Subsidiary Guarantors and the
Significant Subsidiaries; (f) certain judgments or decrees for the payment
of money in excess of $10.0 million; and (g) certain defaults with
respect to Subsidiary Guaranties. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Securities may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Securities being due and payable immediately upon the
occurrence of such Events of Default.


 


Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities
unless it receives indemnity or security satisfactory to it. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in the interest of the Holders.


 


16. Trustee Dealings with
the Company


 


Subject
to certain limitations imposed by the Act, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.


 


17. No Recourse Against
Others


 


A
director, officer, employee or stockholder, as such, of the Company or any
Subsidiary Guarantor or the Trustee shall not have any liability for any
obligations of the Company under the Securities or the Indenture or of such
Subsidiary Guarantor under its Subsidiary Guaranty or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.


 


18. Authentication


 


This
Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the
other side of this Security.


 


19. Abbreviations


 


Customary
abbreviations may be used in the name of a Securityholder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).


 

















 


20. CUSIP Numbers


 


Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures the Company has caused CUSIP numbers to be printed on
the Securities and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Securityholders. No representation is made as to
the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.


 


[21. Holders’ Compliance
with Registration Rights Agreement


 


Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, including the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.](2)


 


22. Governing Law


 


THIS
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


The
Company will furnish to any Securityholder upon written request and without
charge to the Security holder a copy of the Indenture which has in it the text
of this Security in larger type. Requests may be made to:


 


Valmont Industries, Inc.

One Valmont Plaza

Omaha, Nebraska 68154

Attention: Terry McClain


 






(2)          Delete if this Security is
not being issued in exchange for an Initial Security.


 

















 


ASSIGNMENT FORM


 


To assign this Security,
fill in the form below:


 


I or we assign and transfer
this Security to


 


(Print or type assignee’s
name, address and zip code)


 


(Insert assignee’s soc. sec.
or tax I.D. No.)


 


and
irrevocably appoint agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.


 


	
  Date:

  	
  Your
  Signature:

  



 


Sign exactly as your name
appears on the other side of this Security.


 

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If
you want to elect to have this Security purchased by the Company pursuant to Section 4.06
or 4.10 of the Indenture, check the box:


 


If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 or 4.10 of the Indenture, state the amount in
principal amount: $


 


	
  Dated:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name

  appears
  on the other side

  of
  this Security.)

  



 


	
  Signature

  Guarantee:

  	
   

  



 


(Signature must be
guaranteed)


 


Signatures must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.


 

















 


EXHIBIT 2 TO THE

RULE 144A / REGULATIONS / IAI APPENDIX


 


Form of

Transferee Letter of Representation


 


Valmont Industries, Inc.

One Valmont Plaza

Omaha, Nebraska 68154

Attention: Terry McClain


 


In care of

[     ]


 


Ladies and Gentlemen:


 


This
certificate is delivered to request a transfer of
$[     ] principal amount of the 6 7/8% Senior
Subordinated Notes due 2014 (the “Securities”) of Valmont Industries, Inc.
(the “Company”).


 


Upon
transfer, the Securities would be registered in the name of the new beneficial
owner as follows:


 


Name:


 


Address:


 


Taxpayer
ID Number:


 


The
undersigned represents and warrants to you that:


 


1.
We are an institutional “accredited investor” (as defined in Rule 501(a)(l),
(2), (3) or (7) under the Securities Act of 1933, as amended (the
“Securities Act”)), purchasing for our own account or for the account of such
an institutional “accredited investor”, and we are acquiring the Securities not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We are purchasing at least $250,000 principal
amount of the Securities or, if less, are furnishing herewith an opinion of
counsel as described in clause (iii) of paragraph 2 below. We have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities, and we
invest in or purchase securities similar to the Securities in the normal course
of our business. We, and any accounts for which we are acting, are each able to
bear the economic risk of our or its investment.


 


2. We
understand that the Securities have not been registered under the Securities
Act and, unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company or any
affiliate of the


 

















 


Company was the owner of
such Securities (or any predecessor thereto) (the “Resale Restriction
Termination Date”) only (i) to the Company, (ii) in the United States
to a person whom the seller reasonably believes is a qualified institutional
buyer in a transaction meeting the requirements of Rule 144A, (iii) to
an institutional “accredited investor” within the meaning of Rule 501(a)(l),
(2), (3) or (7) under the Securities Act that is an institutional
accredited investor purchasing for its own account or for the account of an
institutional accredited investor, in each case in a minimum principal amount
of the Securities of $250,000, or if such transfer is in respect of an
aggregate principal amount of Securities of less than $250,000, only if such
institutional accredited investor furnishes to the Trustee an opinion of
counsel acceptable to the Company that such transfer is in compliance with the
Securities Act, (iv) outside the United States in a transaction complying
with the provisions of Rule 904 under the Securities Act, (v) pursuant
to an exemption from registration under the Securities Act provided by Rule 144
(if available) or (vi) pursuant to an effective registration statement
under the Securities Act, in each of cases (i) through (vi) subject
to any requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or their
control and in compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (iii) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Trustee, which shall
provide, among other things, that the transferee is an institutional
“accredited investor” within the meaning of Rule 501(a)(l), (2), (3) or
(7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities
Act. Each purchaser acknowledges that the Company and the Trustee reserve the
right prior to the offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause (iii), (iv) or
(v) above to require the delivery of an opinion of counsel, certifications
or other information satisfactory to the Company and the Trustee.


 


	
   

  	
  TRANSFEREE:

  	
   

  	
                                                                           

  	
  ,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by: