Exhibit 4.1


 


SUPPLEMENTAL INDENTURE


 


THIS SUPPLEMENTAL INDENTURE, dated as of March 3,
2010 (this “Guaranty Agreement”), is being entered into by and between
PiRod, Inc., Valmont Coatings, Inc., Valmont Newmark, Inc., Valmont
Group Pty Ltd, Valmont Queensland  Pty
Ltd (each a “Guarantor” and collectively the “Guarantors”),
Valmont Industries, Inc. (the “Company”), and Wells Fargo Bank,
National Association (the “Trustee”), in connection with the Indenture
dated as of May 4, 2004 (the “Indenture”), among the Company, each
of the Company’s subsidiaries that are signatories thereto, and the Trustee, as
trustee under the Indenture.  All
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Indenture.


 


RECITALS:


 


A.            The Guarantors are foreign
subsidiaries of the Company, both organized and existing under the laws of
Australia.


 


B.            Pursuant to a Senior Unsecured
Bridge Credit Agreement by and among the Company, Bank of America, N.A., as
Administrative Agent, and the other lenders party thereto (the “Credit
Agreement”) and a Revolving Credit Agreement by and among the Company,
certain Subsidiaries of the Company, Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, and certain other lenders from time to
time party thereto (the “Revolving Credit Agreement”), the Guarantors
have guaranteed Senior Indebtedness of the Company.


 


The
Guarantors agree as follows:


 


SECTION 1.01. Guaranties. Each 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 the Indenture and the Securities and (b) the
full and punctual performance within applicable grace periods of all other
obligations of the Company under the Indenture and the Securities (all the foregoing
being hereinafter collectively called the “Guaranteed Obligations”).
Each Guarantor further agrees that the Guaranteed Obligations may be extended
or renewed, in whole or in part, without notice or further assent from such
Guarantor and that such Guarantor will remain bound under this Guaranty
Agreement notwithstanding any extension or renewal of any Guaranteed
Obligation.


 


Each 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 Guarantor waives notice of
any default under the Securities or the Guaranteed Obligations. The obligations
of each 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 or Guarantor) under the 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 the 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 other guarantor of the Guaranteed Obligations;
or (6) except as set forth in Section 1.06 of this Guaranty Agreement,
any change in the ownership of such Guarantor.


 


Each
Guarantor further agrees that its 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.


 


This
Guaranty Agreement is, to the extent and in the manner set forth in Article 12
of the Indenture, 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 Guarantor giving such Guaranty Agreement and such
Guaranty Agreement is made subject to such provisions of the Indenture.


 


Except
as expressly set forth in Sections 8.01(b) of the Indenture, and
Sections 1.02 and 1.06 of this Guaranty Agreement, the obligations of each
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 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 the 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 Guarantor or would otherwise operate as a discharge of such Guarantor as a
matter of law or equity.


 


Each
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 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 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


 


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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
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 of the Indenture.  Each 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
of the Indenture for the purposes of such Guarantor’s Guarantee 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 of the Indenture, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purposes of this Section.


 


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


 


SECTION 1.03. Successors and Assigns. This Guaranty
Agreement shall be binding upon each 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
the 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 the
Indenture.


 


SECTION 1.04. 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 Guaranty Agreement 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 Guaranty Agreement at law, in equity, by statute or
otherwise.


 


SECTION 1.05. Modification. No modification, amendment
or waiver of any provision of this Guaranty Agreement, nor the consent to any
departure by any 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 Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in the same,
similar or other circumstances.


 


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SECTION 1.06.  Release
of Guarantor. A Guarantor will be released from its obligations
under this Guaranty Agreement (other than any obligation that may have arisen
under Section 1.07 of this Guaranty Agreement)


 


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


 


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


 


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


 


(4) at
such time as such Guarantor does not have any Indebtedness outstanding that
would have required such Guarantor to enter into a Guaranty Agreement pursuant
to Section 4.11 of the Indenture 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 Guarantor released from this Guaranty
Agreement, or


 


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


 


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


 


At the request of the
Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.  The Company will
deliver to the Trustee with such request an Officers’ Certificate and an
Opinion of Counsel, each stating that, as required by Section 13.04 of the
Indenture, all conditions precedent under the Indenture have been complied with
and that such release is authorized and permitted hereunder.


 


SECTION 1.07. Contribution. Each Guarantor that makes a
payment under the Guaranty Agreement shall be entitled upon payment in full of
all Guaranteed Obligations under the Indenture to a contribution from each other
guarantor of the Guaranteed Obligations in an amount equal to such other
Guarantor’s or Subsidiary Guarantor’s pro rata portion of such payment based on
the respective net assets of all the Guarantors and Subsidiary Guarantors at
the time of such payment determined in accordance with GAAP.


 


 


[Signature page follows]


 


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IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Guaranty Agreement as of the day and year
first written above.


 


 


	
   

  	
  GUARANTORS:

  



 


Signed
sealed and delivered by Valmont Group Pty Ltd ACN 142 189 295 in accordance
with s127 of the Corporations Act 2001 (Cth) in
the presence of:


 


	
   

  	
  VALMONT
  GROUP PTY LTD

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  E. Robert Meaney

  
	
   

  	
  Name:

  	
  E.
  Robert Meaney

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roger Andrew Massey

  
	
   

  	
  Name:

  	
  Roger
  Andrew Massey

  
	
   

  	
  Title:

  	
  Director

  



 


 


Signed
sealed and delivered by Valmont Queensland Pty Ltd ACN 142 183 800 in
accordance with s127 of the Corporations Act 2001
(Cth) in the presence of:


 


	
   

  	
  VALMONT
  QUEENSLAND PTY LTD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  E. Robert Meaney

  
	
   

  	
  Name:

  	
  E.
  Robert Meaney

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roger Andrew Massey

  
	
   

  	
  Name:

  	
  Roger
  Andrew Massey

  
	
   

  	
  Title:

  	
  Director

  



 


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  PIROD,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Terry J. McClain

  
	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VALMONT
  COATINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Terry J. McClain

  
	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VALMONT
  NEWMARK, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Terry J. McClain

  
	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
  Title:

  	
  Executive
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALMONT
  INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Terry J. McClain

  
	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
  Title:

  	
  Senior
  Vice President & Chief Financial Officer

  



 


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  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory S. Clarke

  
	
   

  	
  Name:

  	
  Gregory
  S. Clarke

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


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