exv4w9






EXHIBIT
4.9




 





BASIC ENERGY SERVICES, INC.




AND




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.



Trustee




 






INDENTURE




DATED AS OF                      ___, 20___




 






SUBORDINATED DEBT SECURITIES




 






 









 








BASIC ENERGY SERVICES, INC.

RECONCILIATION AND TIE BETWEEN TRUST

INDENTURE ACT OF 1939, AS AMENDED,

AND INDENTURE, DATED AS OF                      __, 20__




	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION
	Section 310(a)(1)

	 	6.9 
	     (a)(2)

	 	6.9 
	     (a)(3)

	 	Not Applicable 
	     (a)(4)

	 	Not Applicable 
	     (a)(5)

	 	6.9 
	     (b)

	 	6.8 
	 
	 	 
	Section 311

	 	6.13 
	 
	 	 
	Section 312(a)

	 	7.1, 7.2(a) 
	     (b)

	 	7.2(b) 
	     (c)

	 	7.2(c) 
	 
	 	 
	Section 313(a)

	 	7.3 
	     (b)

	 	* 
	     (c)

	 	* 
	     (d)

	 	7.3 
	 
	 	 
	Section 314(a)

	 	7.4 
	     (a)(4)

	 	10.5 
	     (b)

	 	Not Applicable 
	     (c)(1)

	 	1.3 
	     (c)(2)

	 	1.3 
	     (c)(3)

	 	Not Applicable 
	     (d)

	 	Not Applicable 
	     (e)

	 	1.3 
	 
	 	 
	Section 315(a) 
	 	6.1(a)
	     (b)

	 	6.2 
	     (c)

	 	6.1(b) 
	     (d)

	 	6.1(c) 
	     (d)(1)

	 	6.1(a)(1) 
	     (d)(2)

	 	6.1(c)(2) 
	     (d)(3)

	 	6.1(c)(3) 
	     (e) 5.14
	 	 
	 
	 	 
	Section 316(a)

	 	1.1, 1.2 
	     (a)(1)(A)

	 	5.2, 5.12 
	     (a)(1)(B)

	 	5.13 
	     (a)(2)

	 	Not Applicable 
	     (b)

	 	5.8 
	     (c)

	 	1.5(f) 






 









 






	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION
	Section 317(a)(1)

	 	5.3 
	     (a)(2)

	 	5.4 
	     (b)

	 	10.3 
	 
	 	 
	Section 318(a)

	 	1.8 






     NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.





 




			
	*	 	Deemed included pursuant to Section 318(c) of the Trust Indenture Act






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	Section 1.3. Compliance Certificates and Opinions
	 	 	9	 
	Section 1.4. Form of Documents Delivered to Trustee
	 	 	9	 
	Section 1.5. Acts of Holders; Record Dates
	 	 	10	 
	Section 1.6. Notices, Etc., to Trustee, Company and Guarantors
	 	 	11	 
	Section 1.7. Notice to Holders; Waiver
	 	 	12	 
	Section 1.8. Conflict with Trust Indenture Act
	 	 	12	 
	Section 1.9. Effect of Headings and Table of Contents
	 	 	12	 
	Section 1.10. Successors and Assigns
	 	 	12	 
	Section 1.11. Separability Clause
	 	 	13	 
	Section 1.12. Benefits of Indenture
	 	 	13	 
	Section 1.13. Force Majeure
	 	 	13	 
	Section 1.14. Waiver of Jury Trial
	 	 	13	 
	Section 1.15. Governing Law
	 	 	13	 
	Section 1.16. Legal Holidays
	 	 	13	 
	Section 1.17. Securities in a Composite Currency, Currency Unit or Foreign Currency
	 	 	14	 
	Section 1.18. Payment in Required Currency; Judgment Currency
	 	 	14	 
	Section 1.19. Language of Notices, Etc.
	 	 	15	 
	Section 1.20. Incorporators, Shareholders, Officers and Directors of the Company and the
Guarantors Exempt from Individual Liability
	 	 	15	 
	 
	 	 	 	 
	ARTICLE TWO SECURITY FORMS
	 	 	15	 
	Section 2.1. Forms Generally
	 	 	15	 
	Section 2.2. Form of Face of Security
	 	 	15	 
	Section 2.3. Form of Reverse of Security
	 	 	17	 
	Section 2.4. Global Securities
	 	 	22	 
	Section 2.5. Form of Trustee’s Certificate of Authentication
	 	 	23	 
	 
	 	 	 	 
	ARTICLE THREE THE SECURITIES
	 	 	23	 
	Section 3.1. Amount Unlimited; Issuable in Series
	 	 	23	 
	Section 3.2. Denominations
	 	 	26	 
	Section 3.3. Execution, Authentication, Delivery and Dating
	 	 	26	 
	Section 3.4. Temporary Securities
	 	 	27	 
	Section 3.5. Registration, Registration of Transfer and Exchange
	 	 	28	 
	Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	30	 
	Section 3.7. Payment of Interest; Interest Rights Preserved
	 	 	31	 
	Section 3.8. Persons Deemed Owners
	 	 	32	 
	Section 3.9. Cancellation
	 	 	32	 
	Section 3.10. Computation of Interest
	 	 	33	 
	Section 3.11. CUSIP or CINS Numbers
	 	 	33	 
	 
	 	 	 	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE
	 	 	33	 
	Section 4.1. Satisfaction and Discharge of Indenture
	 	 	33	 
	Section 4.2. Application of Trust Money
	 	 	34	 






i 









 






	 	 	 	 	 
	ARTICLE FIVE REMEDIES
	 	 	34	 
	Section 5.1. Events of Default
	 	 	34	 
	Section 5.2. Acceleration of Maturity; Rescission and Annulment
	 	 	35	 
	Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	36	 
	Section 5.4. Trustee May File Proofs of Claim
	 	 	37	 
	Section 5.5. Trustee May Enforce Claims Without Possession of Securities
	 	 	37	 
	Section 5.6. Application of Money Collected
	 	 	38	 
	Section 5.7. Limitation on Suits
	 	 	38	 
	Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	38	 
	Section 5.9. Restoration of Rights and Remedies
	 	 	39	 
	Section 5.10. Rights and Remedies Cumulative
	 	 	39	 
	Section 5.11. Delay or Omission Not Waiver
	 	 	39	 
	Section 5.12. Control by Holders
	 	 	39	 
	Section 5.13. Waiver of Past Defaults
	 	 	40	 
	Section 5.14. Undertaking for Costs
	 	 	40	 
	Section 5.15. Waiver of Stay or Extension Laws
	 	 	40	 
	 
	 	 	 	 
	ARTICLE SIX THE TRUSTEE
	 	 	41	 
	Section 6.1. Certain Duties and Responsibilities
	 	 	41	 
	Section 6.2. Notice of Defaults
	 	 	42	 
	Section 6.3. Certain Rights of Trustee
	 	 	42	 
	Section 6.4. Not Responsible for Recitals or Issuance of Securities
	 	 	43	 
	Section 6.5. May Hold Securities
	 	 	43	 
	Section 6.6. Money Held in Trust
	 	 	43	 
	Section 6.7. Compensation and Reimbursement
	 	 	44	 
	Section 6.8. Disqualification; Conflicting Interests
	 	 	44	 
	Section 6.9. Corporate Trustee Required; Eligibility
	 	 	44	 
	Section 6.10. Resignation and Removal; Appointment of Successor
	 	 	45	 
	Section 6.11. Acceptance of Appointment by Successor
	 	 	46	 
	Section 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	47	 
	Section 6.13. Preferential Collection of Claims Against Company
	 	 	47	 
	Section 6.14. Appointment of Authenticating Agent
	 	 	48	 
	 
	 	 	 	 
	ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	49	 
	Section 7.1. Company to Furnish Trustee Names and Addresses of Holders
	 	 	49	 
	Section 7.2. Preservation of Information; Communications to Holders
	 	 	49	 
	Section 7.3. Reports by Trustee
	 	 	50	 
	Section 7.4. Reports by Company
	 	 	51	 
	 
	 	 	 	 
	ARTICLE EIGHT CONSOLIDATION, AMALGAMATION, MERGER AND SALE
	 	 	51	 
	Section 8.1. Company May Consolidate, Etc., Only on Certain Terms
	 	 	51	 
	Section 8.2. Successor Substituted
	 	 	52	 
	 
	 	 	 	 
	ARTICLE NINE AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	52	 
	Section 9.1. Without Consent of Holders
	 	 	52	 
	Section 9.2. With Consent of Holders
	 	 	54	 
	Section 9.3. Execution of Amendments and Supplemental Indentures
	 	 	55	 
	Section 9.4. Effect of Amendments and Supplemental Indentures
	 	 	55	 
	Section 9.5. Conformity with Trust Indenture Act
	 	 	56	 
	Section 9.6. Reference in Securities to Amendments or Supplemental Indentures
	 	 	56	 






ii 









 






	 	 	 	 	 
	ARTICLE TEN COVENANTS
	 	 	56	 
	Section 10.1. Payment of Principal, Premium and Interest
	 	 	56	 
	Section 10.2. Maintenance of Office or Agency
	 	 	56	 
	Section 10.3. Money for Securities Payments to Be Held in Trust
	 	 	56	 
	Section 10.4. Existence
	 	 	58	 
	Section 10.5. Statement by Officers as to Default
	 	 	58	 
	 
	 	 	 	 
	ARTICLE ELEVEN REDEMPTION OF SECURITIES
	 	 	58	 
	Section 11.1. Applicability of Article
	 	 	58	 
	Section 11.2. Election to Redeem; Notice to Trustee
	 	 	58	 
	Section 11.3. Selection by Trustee of Securities to Be Redeemed
	 	 	58	 
	Section 11.4. Notice of Redemption
	 	 	59	 
	Section 11.5. Deposit of Redemption Price
	 	 	60	 
	Section 11.6. Securities Payable on Redemption Date
	 	 	60	 
	Section 11.7. Securities Redeemed in Part
	 	 	60	 
	 
	 	 	 	 
	ARTICLE TWELVE SINKING FUNDS
	 	 	60	 
	Section 12.1. Applicability of Article
	 	 	60	 
	Section 12.2. Satisfaction of Sinking Fund Payments with Securities
	 	 	61	 
	Section 12.3. Redemption of Securities for Sinking Fund
	 	 	61	 
	 
	 	 	 	 
	ARTICLE THIRTEEN DEFEASANCE
	 	 	61	 
	Section 13.1. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	61	 
	Section 13.2. Legal Defeasance and Discharge
	 	 	61	 
	Section 13.3. Covenant Defeasance
	 	 	62	 
	Section 13.4. Conditions to Legal or Covenant Defeasance
	 	 	62	 
	Section 13.5. Deposited Money and U.S. Government Obligations to be Held in Trust, Other
Miscellaneous Provisions
	 	 	64	 
	Section 13.6. Repayment
	 	 	64	 
	Section 13.7. Reinstatement
	 	 	64	 
	 
	 	 	 	 
	ARTICLE FOURTEEN GUARANTEE OF SECURITIES
	 	 	65	 
	Section 14.1. Securities Guarantee
	 	 	65	 
	Section 14.2. Limitation on Guarantor Liability
	 	 	66	 
	Section 14.3. Execution and Delivery of Securities Guarantee Notation
	 	 	66	 
	 
	 	 	 	 
	ARTICLE FIFTEEN SUBORDINATION OF SECURITIES
	 	 	67	 
	Section 15.1. Securities Subordinated to Senior Debt
	 	 	67	 
	Section 15.2. No Payment on Securities in Certain Circumstances
	 	 	67	 
	Section 15.3. Payment over of Proceeds upon Dissolution, Etc
	 	 	68	 
	Section 15.4. Subrogation
	 	 	69	 
	Section 15.5. Obligations of Company Unconditional
	 	 	70	 
	Section 15.6. Notice to Trustee
	 	 	70	 
	Section 15.7. Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	71	 
	Section 15.8. Trustee’s Relation to Senior Debt
	 	 	71	 
	Section 15.9. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Debt
	 	 	71	 
	Section 15.10. Holders Authorize Trustee to Effectuate Subordination of Securities
	 	 	72	 
	Section 15.11. Not to Prevent Events of Default
	 	 	72	 
	Section 15.12. Trustee’s Compensation Not Prejudiced
	 	 	72	 
	Section 15.13. No Waiver of Subordination Provisions
	 	 	72	 






iii 









 






	 	 	 	 	 
	Section 15.14. Payments May Be Paid Prior to Dissolution
	 	 	72	 
	Section 15.15. Trust Moneys Not Subordinated
	 	 	73	 
	 
	 	 	 	 
	ARTICLE SIXTEEN SUBORDINATION OF SECURITIES GUARANTEES
	 	 	73	 
	Section 16.1. Securities Guarantees Subordinated to Guarantor Senior Debt
	 	 	73	 
	Section 16.2. No Payment on Securities Guarantees in Certain Circumstances
	 	 	73	 
	Section 16.3. Payment over of Proceeds upon Dissolution, Etc
	 	 	74	 
	Section 16.4. Subrogation
	 	 	76	 
	Section 16.5. Obligations of Guarantor Unconditional
	 	 	76	 
	Section 16.6. Notice to Trustee
	 	 	76	 
	Section 16.7. Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	77	 
	Section 16.8. Trustee’s Relation to Guarantor Senior Debt
	 	 	77	 
	Section 16.9. Subordination Rights Not Impaired by Acts or Omissions of a Guarantor or
Holders of Guarantor Senior Debt
	 	 	78	 
	Section 16.10. Holders Authorize Trustee to Effectuate Subordination of Securities Guarantees
	 	 	78	 
	Section 16.11. Not to Prevent Events of Default
	 	 	78	 
	Section 16.12. Trustee’s Compensation Not Prejudiced
	 	 	78	 
	Section 16.13. No Waiver of Subordination Provisions
	 	 	78	 
	Section 16.14. Payments May Be Paid Prior to Dissolution
	 	 	79	 






     NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.




iv 









 








PARTIES




     INDENTURE, dated as of                      ___, 20___, among BASIC ENERGY SERVICES, INC., a corporation
duly organized and existing under the laws of the State of Delaware (herein called the “Company”),
the GUARANTORS (as defined hereinafter) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, as trustee (the “Trustee”).



RECITALS OF THE COMPANY:




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured subordinated debentures, notes or other evidences
of indebtedness (herein called the “Securities”), which may but are not required to be guaranteed
by the Guarantors, to be issued in one or more series as provided in this Indenture.



     All things necessary to make this Indenture a valid agreement of the Company and of the
Guarantors, in accordance with its terms, have been done.



     This Indenture is subject to the provisions of the Trust Indenture Act that are required to be
a part of this Indenture and, to the extent applicable, shall be governed by such provisions.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:



ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




Section 1.1. Definitions.




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




     (a) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;




     (b) all terms used in this Indenture that are defined in the Trust Indenture Act,
defined by a Trust Indenture Act reference to another statute or defined by an SEC rule
under the Trust Indenture Act have the meanings so assigned to them;




     (c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;




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




     (e) the words “Article” and “Section” refer to an Article and Section, respectively, of
this Indenture; and



     (f) the word “includes” and its derivatives means “includes, but is not limited to” and
corresponding derivative definitions.



 









 






     Certain terms, used principally in Article Six, are defined in that Article.



     “Act”, when used with respect to any Holder, has the meaning specified in Section 1.5.



     “Additional Defeasible Provision” means a covenant or other provision that is (a) made part of
this Indenture pursuant to an indenture supplemental hereto, a Board Resolution or an Officer’s
Certificate delivered pursuant to Section 3.1, and (b) pursuant to the terms set forth in such
supplemental indenture, Board Resolution or Officer’s Certificate, made subject to the provisions
of Article Thirteen.



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



     “Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the
Trustee to authenticate Securities.



     “Banking Day” means, in respect of any city, any date on which commercial banks are open for
business in that city.



     “Bankruptcy Law” means any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law.



     “Board of Directors” means:



     (a) with respect to a corporation, the board of directors of the corporation or any committee
thereof duly authorized to act on behalf of such board;



     (b) with respect to a partnership, the Board of Directors of the general partner of the
partnership;



     (c) with respect to a limited liability company, the managing member or members or any
controlling committee of managers or members thereof or any board or committee serving a similar
management function; and



     (d) with respect to any other Person, the individual or board or committee of such Person
serving a management function similar to those described in clauses (a), (b) or (c) of this
definition.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or a Guarantor, the principal financial officer of the Company or a
Guarantor, any other authorized officer of the Company or a Guarantor, or a person duly authorized
by any of them, in each case as applicable, to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered to the Trustee.
Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution
(including the establishment of any series of the Securities and the forms and terms thereof), such
action may be taken by any committee, officer or employee of the Company or a Guarantor, as
applicable, authorized to take such action by the Board of Directors, as evidenced by a Board
Resolution.



     “Business Day”, when used with respect to any Place of Payment or other location, means,
except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, each



2









 







Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized or obligated by law,
executive order or regulation to close.



     “CINS” means CUSIP International Numbering System.



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



     “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor or resulting Person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor or resulting Person.



     “Company Request” or “Company Order” means, in the case of the Company, a written request or
order signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer,
its Chief Financial Officer, its President, any of its Vice Presidents or any other duly authorized
officer of the Company or any person duly authorized by any of them, and delivered to the Trustee
and, in the case of a Guarantor, a written request or order signed in the name of such Guarantor by
its Chairman of the Board, its Chief Executive Officer, its President, any of its Vice Presidents
or any other duly authorized officer of such Guarantor or any person duly authorized by any of
them, and delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which at any time its corporate
trust business shall be administered, which office at the date hereof is located at The Bank of New
York Mellon Trust Company, N.A., 601 Travis Street, 18th Floor, Houston, Texas 77002, Attention:
Corporate Trust Officer, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the principal corporate
trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).



     “corporation”, when used in reference to the Trustee or any prospective Trustee, shall include
any corporation, company, association, partnership, limited partnership, limited liability company,
joint-stock company and trust, in each case, satisfying the requirements of Section 310(a)(1) of
the Trust Indenture Act.



     “Covenant Defeasance” has the meaning specified in Section 13.3.



     “CUSIP” means the Committee on Uniform Securities Identification Procedures.



     “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.



     “Debt” means any obligation created or assumed by any Person for the repayment of money
borrowed and any purchase money obligation created or assumed by such Person and any guarantee of
the foregoing.



     “Default” means, with respect to a series of Securities, any event that is, or after notice or
lapse of time or both would be, an Event of Default.



     “Defaulted Interest” has the meaning specified in Section 3.7.



     “Definitive Security” means a security other than a Global Security or a temporary Security.



3









 





     “Depositary” means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section
3.1, until a successor Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter shall mean or include each Person which is a Depositary hereunder,
and if at any time there is more than one such Person, shall be a collective reference to such
Persons.



     “Designated Guarantor Senior Debt” shall have the meaning given to such term in a Board
Resolution, Officer’s Certificate or indenture supplemental hereto delivered pursuant to Section
3.1.



     “Designated Senior Debt” shall have the meaning given to such term in a Board Resolution,
Officer’s Certificate or indenture supplemental hereto delivered pursuant to Section 3.1.



     “Dollar” or “$” means the coin or currency of the United States of America, which at the time
of payment is legal tender for the payment of public and private debts.



     “Event of Default” has the meaning specified in Section 5.1.



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



     “Foreign Currency” means a currency used by the government of a country other than the United
States of America.



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, including those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in the Indenture will be computed in conformity
with GAAP.



     “Global Security” means a Security in global form that evidences all or part of a series of
Securities and is authenticated and delivered to, and registered in the name of, the Depositary for
the Securities of such series or its nominee.



     “Guaranteed Securities” has the meaning specified in Section 14.1.



     “Guarantor” means each Person that becomes a guarantor of any Securities pursuant to the
applicable provisions of this Indenture.



     “Guarantor Senior Debt” means, unless otherwise provided with respect to the Securities of a
series as contemplated by Section 3.1, (a) all Debt of a Guarantor, whether currently outstanding
or hereafter issued, unless, by the terms of the instrument creating or evidencing such Debt, it is
provided that such Debt is not superior in right of payment to the Securities Guarantee or to other
Debt which is pari passu with or subordinated to the Securities Guarantee, and (b) any
modifications, refunding, deferrals, renewals or extensions of any such Debt or securities, notes
or other evidence of Debt issued in exchange for such Debt; provided that in no event shall
“Guarantor Senior Debt” include (i) Debt of a Guarantor owed or owing to any Subsidiary of such
Guarantor or any officer, director or employee of such Guarantor or any Subsidiary of such
Guarantor, (ii) Debt to trade creditors or (iii) any liability for taxes owed or owing by a
Guarantor.



     “Holder” means a Person in whose name a Security is registered in the Security Register.



4









 





     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more amendments or indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and
any such amendment or supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be part of and govern this instrument and any such amendment or supplemental indenture,
respectively. The term “Indenture” also shall include the terms of particular series of Securities
established as contemplated by Section 3.1.



     “interest”, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.



     “Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.



     “Judgment Currency” has the meaning specified in Section 1.18.



     “Legal Defeasance” has the meaning specified in Section 13.2.



     “mandatory sinking fund payment” has the meaning specified in Section 12.1.



     “Market Exchange Rate” has the meaning specified in Section 1.17.



     “Maturity”, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.



     “Notice of Default” means a written notice of the kind specified in Section 5.1(c) or Section
5.1(d).



     “Officer’s Certificate” means, in the case of the Company, a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice President or any other duly authorized officer of the Company, or a person duly authorized by
any of them, and delivered to the Trustee and, in the case of a Guarantor, a certificate signed by
the Chairman of the Board, the Chief Executive Officer, the President, any Vice President or any
other duly authorized officer of such Guarantor, or a person duly authorized by any of them, and
delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company or a Guarantor, as the case may be, and who shall be reasonably acceptable to the
Trustee.



     “optional sinking fund payment” has the meaning specified in Section 12.1.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.



     “Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




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



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     (b) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however, that, if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;




     (c) Securities which have been paid pursuant to Section 3.6 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company; and




     (d) Securities, except to the extent provided in Section 13.2 and Section 13.3, with
respect to which the Company has effected Legal Defeasance or Covenant Defeasance as
provided in Article Thirteen, which Legal Defeasance or Covenant Defeasance then continues
in effect;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable
as of the date of such determination upon acceleration of the Maturity thereof on such date
pursuant to Section 5.2, (ii) the principal amount of a Security denominated in one or more
currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent of such
currencies or currency units, determined in the manner provided as contemplated by Section 3.1 on
the date of original issuance of such Security or by Section 1.17, if not otherwise so provided
pursuant to Section 3.1, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent (as so determined) on the date of original issuance of such
Security of the amount determined as provided in clause (i) above) of such Security, and (iii)
Securities owned by the Company, any Guarantor or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned as described in
clause (iii) of the immediately preceding sentence which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right to act with respect to such Securities and that the pledgee is not the Company, a Guarantor
or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.




     “Paying Agent” means any Person authorized by the Company to pay the principal of and any
premium or interest on any Securities on behalf of the Company.



     “Payment Blockage Period” has the meaning specified in Section 15.2.



     “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest or
formula for determining the rate or rates of interest thereon, if any, the Stated Maturity or
Stated Maturities thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any
other terms specified as contemplated by Section 3.1 with respect thereto, are to be
determined by the Company upon the issuance of such Securities.



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



     “Place of Payment”, when used with respect to the Securities of any series, means, unless
otherwise specifically provided for with respect to such series as contemplated by Section 3.1, the
office or agency of the Company and such other place or places where, subject to the provisions of
Section 10.2, the principal of and any premium and interest on the Securities of that series are
payable as contemplated by Section 3.1.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



     “Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.



     “Redemption Price”, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.1.



     “Required Currency” has the meaning specified in Section 1.18.



     “Responsible Officer”, when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.



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



     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.



     “Securities Guarantee” means each guarantee of the obligations of the Company under this
Indenture and the Securities by a Guarantor in accordance with the provisions hereof.



     “Securities Guarantee Payment Blockage Period” has the meaning specified in Section 16.2.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.5.



     “Senior Debt” means, unless otherwise provided with respect to the Securities of a series as
contemplated by Section 3.1, (a) all Debt of the Company, whether currently outstanding or
hereafter



7









 







issued, unless, by the terms of the instrument creating or evidencing such Debt, it is
provided that such Debt is not superior in right of payment to the Securities or to other Debt
which is pari passu with or subordinated to the Securities, and (b) any modifications, refunding,
deferrals, renewals or extensions of any such Debt or securities, notes or other evidence of Debt
issued in exchange for such Debt; provided that in no event shall “Senior Debt” include (i) Debt of
the Company owed or owing to any Subsidiary of the Company or any officer, director or employee of
the Company or any Subsidiary of the Company, (ii) Debt to trade creditors or (iii) any liability
for taxes owned or owing by the Company.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.



     “Stated Maturity”, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.



     “Subsidiary” means (a) a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries or (b) any partnership or other business organization
more than 50% of the ownership interests having ordinary voting power of which is so owned. For
the purposes of this definition, “voting stock” means capital stock or equity interests which
ordinarily have voting power for the election of directors, whether at all times or only so long as
no senior class of stock has such voting power by reason of any contingency.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the
date as of which this instrument was executed, except as provided in Section 9.5; provided,
however, that if the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act”
means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.



     “U.S. Person” shall have the meaning assigned to such term in Section 7701(a)(30) of the Code.



     “U.S. Government Obligations” means securities which are (a) direct obligations of the United
States for the payment of which its full faith and credit is pledged, or (b) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States, and which are not callable or redeemable at the option of the issuer thereof.



     “Vice President”, when used with respect to the Company, the Guarantor or the Trustee, means
any vice president, regardless of whether designated by a number or a word or words added before or
after the title “vice president.”



Section 1.2. Incorporation by Reference of Trust Indenture Act.




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



8









 






“commission” means the SEC.




“indenture securities” means the Securities.




“indenture security holder” means a Holder.




“indenture to be qualified” means this Indenture.




“indenture trustee” or “institutional trustee” means the Trustee.




“obligor” on the indenture securities means the Company, the Guarantor (if
applicable) or any other obligor on the indenture securities.



     All terms used in this Indenture that are defined by the Trust Indenture Act, defined by a
Trust Indenture Act reference to another statute or defined by an SEC rule under the Trust
Indenture Act have the meanings so assigned to them.



Section 1.3. Compliance Certificates and Opinions.




     Upon any application or request by the Company or a Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or such Guarantor, as the case may be,
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished except as required under Section 314(c) of the Trust Indenture Act.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 10.5) shall include:




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




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




     (c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether such covenant or condition has been complied with; and




     (d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



Section 1.4. Form of Documents Delivered to Trustee.




     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to



9









 







other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company or a Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows or, in the exercise of reasonable care, should know that the certificate
or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the Guarantor, as the case
may be, unless such counsel knows that the certificate or opinion or representations with respect
to such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



Section 1.5. Acts of Holders; Record Dates.





     (a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided that such
electronic transmission is transmitted through the facilities of a Depositary) by such
Holders in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the Company or
the Guarantors. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject
to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the Company
and, if applicable, the Guarantors, if made in the manner provided in this Section.




     (b) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute sufficient proof of
his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems
sufficient.




     (c) The ownership, principal amount and serial numbers of Securities held by any
Person, and the date of commencement of such Person’s holding of same, shall be proved by
the Security Register.




     (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, the



10









 







Company or, if applicable, the Guarantors in reliance thereon, regardless
of whether notation of such action is made upon such Security.




     (e) Without limiting the foregoing, a Holder entitled to give or take any action
hereunder with regard to any particular Security may do so with regard to all or any part of
the principal amount of such Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any different part of such
principal amount.




     (f) The Company may set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided or permitted
by this Indenture to be given or taken by Holders of Securities of such series, but the
Company shall have no obligation to do so. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on such record
date (or their duly appointed agents), and only such Persons, shall be entitled to give or
take the relevant action, regardless of whether such Holders remain Holders after such
record date.



Section 1.6. Notices, Etc., to Trustee, Company and Guarantors.




     (a) Any notice or communication by the Company, any of the Guarantors or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others’ address:


If to the Company and/or any Guarantor:



Basic Energy Services, Inc.

500 W. Illinois, Suite 100

Midland, Texas 79701

Telephone: (432) 620-5500

Facsimile: (432) 620-5501

Attention: Chief Financial Officer



with a copy to:



Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002



Telephone: (713) 220-4200

Facsimile: (713) 220-4285

Attention: David C. Buck, Esq.



If to the Trustee:



The Bank of New York Mellon Trust Company, N.A.

601 Travis Street, 18th Floor

Houston, Texas 77002

Telephone: (713) 483-6535

Facsimile: (713) 483-7038

Attention: Brian Echausse




11









 








     (b) The Company, the Guarantors or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.



     (c) All notices and communications (other than those sent to Holders) shall be deemed
to have been duly given: at the time delivered by hand, if personally delivered; three
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.



Section 1.7. Notice to Holders; Waiver.




     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, regardless of whether such Holder actually receives such notice.



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



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



Section 1.8. Conflict with Trust Indenture Act.




     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the provision of the
Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any
provision of the
Trust Indenture Act that may be so modified or excluded, the provision of the Trust Indenture
Act shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.



Section 1.9. Effect of Headings and Table of Contents.




     The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



Section 1.10. Successors and Assigns.




     All covenants and agreements in this Indenture by each of the Company and the Guarantors shall
bind their respective successors and assigns, whether so expressed or not.



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Section 1.11. Separability Clause.




     In case any provision in this Indenture or in the Securities or, if applicable, the Securities
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



Section 1.12. Benefits of Indenture.




     Nothing in this Indenture or in the Securities or, if applicable, the Securities Guarantee,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders any benefit or any legal or equitable right,
remedy or claim under this Indenture.



Section 1.13. Force Majeure.




     In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the
circumstances.



Section 1.14. Waiver of Jury Trial.




     EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.



Section 1.15. Governing Law.




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



Section 1.16. Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities or, if applicable, the Securities Guarantee (other
than a provision of the Securities of any series or, if applicable, the Securities Guarantee that
specifically states that such provision shall apply in lieu of this Section 1.16)) payment of
interest or principal and any premium need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and
if payment is so made, no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.



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Section 1.17. Securities in a Composite Currency, Currency Unit or Foreign Currency.




     Unless otherwise specified in a Board Resolution, Officer’s Certificate or indenture
supplemental hereto delivered pursuant to Section 3.1 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all series or
all series affected by a particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any affected series which are denominated in a coin, currency or
currencies other than Dollars (including, but not limited to, any composite currency, currency
units or Foreign Currency), then the principal amount of Securities of such series which shall be
deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that
could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 1.17,
the term “Market Exchange Rate” shall mean the noon Dollar buying rate in The City of New York for
cable transfers of such currency or currencies as published by the Federal Reserve Bank of New
York, as of the most recent available date. If such Market Exchange Rate is not so available for
any reason with respect to such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations or rates of exchange from one or more major banks in The City of New
York or in the country of issue of the currency in question, which for purposes of Euros shall be
Brussels, Belgium, or such other quotations or rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.



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



Section 1.18. Payment in Required Currency; Judgment Currency.




     Each of the Company and the Guarantors agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of or interest on the Securities of
any series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the day on which final unappealable judgment is entered, unless such
day is not a Banking Day, then, to the extent permitted by applicable law, the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the Banking
Day next preceding the day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (regardless of whether entered in
accordance with subclause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the payee, of the full
amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.



14









 





Section 1.19. Language of Notices, Etc.




     Any request, demand, authorization, direction, notice, consent, waiver or Act required or
permitted under this Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.


Section 1.20. Incorporators, Shareholders, Officers and Directors of the Company and the
Guarantors Exempt from Individual Liability.




     No recourse under or upon any obligation, covenant or agreement of or contained in this
Indenture or of or contained in any Security or, if applicable, the Securities Guarantee, or for
any claim based thereon or otherwise in respect thereof, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, shareholder, member,
officer, manager, employee, partner or director, as such, past, present or future, of the Company, any Guarantor or
any successor Person, either directly or through the Company, any Guarantor or any successor
Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a part of the consideration for, the
execution of this Indenture and the issue of the Securities.



ARTICLE TWO

SECURITY FORMS




Section 2.1. Forms Generally.




     The Securities of each series and, if applicable, the notation thereon relating to the
Securities Guarantee, shall be in substantially the form set forth in this Article Two, or in such
other form or forms as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities and, if applicable,
the Securities Guarantee, as evidenced by their execution thereof.



     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution thereof. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person on behalf of the
Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated
by Section 3.3 for the authentication and delivery of such Securities.



     The forms of Global Securities of any series shall have such provisions and legends as are
customary for Securities of such series in global form, including without limitation any legend
required by the Depositary for the Securities of such series.



Section 2.2. Form of Face of Security.




     [If the Security is an Original Issue Discount Security, insert—FOR PURPOSES OF SECTION 1275 OF THE
UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT
IS . . . . . . . ., THE ISSUE DATE IS . . . . . ., 20. . .
[AND] [,] THE YIELD TO MATURITY IS . . . . . . . . [,] [AND THE ORIGINAL ISSUE DISCOUNT FOR THE



15









 







SHORT ACCRUAL PERIOD IS . . . . . . . . AND
THE METHOD USED TO DETERMINE THE YIELD THEREFOR IS . . . . .]]


[Insert any other legend required by the Code or the regulations thereunder.]



[If a Global Security,—insert legend required by Section 2.4 of the Indenture] [If applicable,
insert —UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]




BASIC ENERGY SERVICES, INC.





[TITLE OF SECURITY]





			
	 	 	 
	No. . . . . . . .
	 	U.S. $. . . . . .






[CUSIP No. ]



BASIC ENERGY SERVICES, INC., a company duly incorporated under the laws of the State of Delaware
(herein called the “Company”, which term includes any successor or resulting Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to ..........., or registered assigns, the principal sum of ........................
United States Dollars on ................... [If the Security is to bear interest prior to Maturity,
insert—, and to pay interest thereon from . . . . . . . . . . or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on . . . . . . and . . . . . . in each year, commencing . . . . . ., at the rate of . . . . % per annum, until the
principal hereof is paid or made available for payment [if applicable, insert—, and at the rate of
___% per annum on any overdue principal and premium and on any installment of interest (to the
extent that the payment of such interest shall be legally enforceable)]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the . . . . or . . . . (regardless of whether a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].



[If the Security is not to bear interest prior to Maturity, insert—The principal of this Security
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of


16









 






. . . .% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of . . . . % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly provided for, and
such interest shall also be payable on demand.]



[If a Global Security, insert—Payment of the principal of (and premium, if any) and [if applicable,
insert—any such] interest on this Security will be made by transfer of immediately available funds
to a bank account in                      designated by the Holder in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private debts
[state other currency].]



[If a Definitive Security, insert—Payment of the principal of (and premium, if any) and [if
applicable, insert—any such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in                     , in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts] [state other currency] [or subject to any laws or regulations applicable thereto and to the
right of the Company (as provided in the Indenture) to rescind the designation of any such Paying
Agent, at the [main] offices of                      in                     , or at such other offices or
agencies as the Company may designate, by [United States Dollar] [state other currency] check drawn
on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in The
City of New York (so long as the applicable Paying Agency has received proper transfer instructions
in writing at least ___days prior to the payment date)] [if applicable, insert—; provided,
however, that payment of interest may be made at the option of the Company by [United States
Dollar] [state other currency] check mailed to the addresses of the Persons entitled thereto as
such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar]
[state other currency] account maintained by the payee with a bank in The City of New York [state
other Place of Payment] (so long as the applicable Paying Agent has received proper transfer
instructions in writing by the record date prior to the applicable Interest Payment Date)].]



Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.




     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



     Dated:



	 	 	 	 	 
	 	BASIC ENERGY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 



Section 2.3. Form of Reverse of Security.



This Security is one of a duly authorized issue of subordinated securities of the Company (herein
called the “Securities”), issued and to be issued in one or more series under an Indenture, dated
as of ___,


17









 







20     (herein called the “Indenture”), between the Company, the Guarantors, if any,
and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “Trustee”, which
term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Guarantors, if any, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or
more series, which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking, purchase or analogous
funds, if any, may be subject to different covenants and Events of Default and may otherwise vary
as in the Indenture provided or permitted. This Security is one of the series designated on the
face hereof [, limited in aggregate principal amount to $ . . . . . . . . . . ].



This security is the general, unsecured, subordinated obligation of the Company [if applicable,
insert—and is guaranteed pursuant to a guarantee (the “Securities Guarantee”) by [insert name of
each Guarantor] (the “Guarantors”). The Securities Guarantee is the general, unsecured,
subordinated obligation of each Guarantor.]



[If applicable, insert—The Securities of this series are subject to redemption upon not less than.................. days’ notice by mail, [if applicable, insert, —(1) on . . . . . . . . . . . . . . in any year
commencing with the year . . . . and ending with the year . . . . through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal amount, and (2) ] at any
time [on or after . . . . . . . . . ., 20. . . ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before . . . . . . . . . . . . . . . , . . . . . %, and if redeemed] during the
12-month period beginning . . . . . . . . of the years indicated,




	 	 	 	 	 	 	 
	Year
	 	Redemption Price
	 	Year
	 	Redemption Price





and thereafter at a Redemption Price equal to . . . . . % of the principal amount, together in the
case of any such redemption [if applicable, insert—(whether through operation of the sinking fund
or otherwise)] with accrued interest to the Redemption Date, but interest installments the Stated
Maturity of which is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of business on the
relevant record dates referred to on the face hereof, all as provided in the Indenture.]



[If applicable, insert—The Securities of this series are subject to redemption upon not less
than... nor more than ... days’ notice by mail, (1) on . . . . . . . . in any year commencing with
the year . . . . and ending with the year . . . . through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at anytime [on or after
        . . . . . . . . . . ], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning . . . . . . . . . . . . . . of the years indicated,




18









 








	 	 	 	 	 
	 
	 	Redemption Price For 
	 	Redemption Price for 
	 
	 	Redemption Through 
	 	Redemption Otherwise Than 
	Year
	 	Operation of the Sinking Fund
	 	Through Operation of the Sinking Fund





and thereafter at a Redemption Price equal to . . . . % of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments the Stated Maturity of which is
on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.]



[If
applicable, insert—Notwithstanding the foregoing, the
Company may not, prior to . . . . . . . . . . . . . . . . ., redeem any Securities of this series as contemplated by [clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than . . . .% per annum.]



[If
applicable, insert—The sinking fund for this series provides
for the redemption on . . . . . . . . . . . . . . . . . . in each year beginning with the year . . . . and ending with the year . . . . of [not
less than] $ . . . . . . . . . . . . [ (“mandatory
sinking fund”) and not more than $ . . . . . . . . . . . . . . . . . . . . ] aggregate principal amount of Securities of this series. [Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required to be made [If
applicable, insert— in the inverse order in which they become due].]



[If the Securities are subject to redemption in part of any kind, insert—In the event of redemption
of this Security in part only, a new Security or Securities of this series and of like tenor for
the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]



[If applicable, insert—The Securities of this series are not redeemable prior to Stated Maturity.]



[If the Security is not an Original Issue Discount Security,—If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect provided in the
Indenture.]



[If the Security is an Original Issue Discount Security,—If an Event of Default with respect to
Securities of this series shall occur and be continuing, an amount of principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to —insert formula for determining the amount. Upon payment
(i) of the amount of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s


19









 






obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall terminate.]



The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company [If applicable, insert—and the
Guarantors] and the rights of the Holders of the Securities of each series to be affected under the
Indenture at any time by the Company [If applicable, insert—and the Guarantors] and the Trustee
with the consent of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company [If applicable, insert—and the Guarantors] with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, regardless of whether notation of such
consent or waiver is made upon this Security.



No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security at the times, place(s) and rate,
and in the coin or currency, herein prescribed.



[If a Global Security, insert—This Global Security or portion hereof may not be exchanged for
Definitive Securities of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be
considered the Holders thereof for any purpose under the Indenture.]



[If a Definitive Security, insert—As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency of the Company in
[if applicable, insert—any place where the principal of and any premium and interest on this
Security are payable] [if applicable, insert—The City of New York [, or, subject to any laws or
regulations applicable thereto and to the right of the Company (limited as provided in the
Indenture) to rescind the designation of any such transfer agent, at the [main] offices of
                     in                      or at such other offices or agencies as the Company may
designate]], duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.]



The Securities of this series are issuable only in registered form without coupons in denominations
of U.S. $ . . . . . . . . and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.



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




20









 







Prior to due presentment of this Security for registration of transfer, the Company, [If
applicable, insert—any Guarantor,] the Trustee and any agent of the Company [If applicable,
insert—, a Guarantor] or the Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, regardless of whether this Security be overdue, and none of
the Company, [If applicable, insert—the Guarantors,] the Trustee nor any such agent shall be
affected by notice to the contrary.



This Security is subordinated in right of payment to Senior Debt [If applicable, insert-and the
Securities Guarantee is subordinated in right of payment to Guarantor Senior Debt], to the extent
and in the manner provided in the Indenture.



No recourse under or upon any obligation, covenant or agreement of or contained in the Indenture or
of or contained in any Security, [If applicable, insert—, or the Securities Guarantee endorsed
thereon,] or for any claim based thereon or otherwise in respect thereof, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or
director, as such, past, present or future, of the Company [If applicable, insert—or any Guarantor]
or of any successor Person, either directly or through the Company [If applicable, insert—or any
Guarantor] or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Securities and the execution of the
Indenture.



The Indenture provides that the Company [If applicable, insert—and the Guarantors] (a) will be
discharged from any and all obligations in respect of the Securities (except for certain
obligations described in the Indenture), or (b) need not comply with certain restrictive covenants
of the Indenture, in each case if the Company [If applicable, insert—or a Guarantor] deposits, in
trust, with the Trustee money or U.S. Government Obligations (or a combination thereof) which
through the payment of interest thereon and principal thereof in accordance with their terms will
provide money, in an amount sufficient to pay all the principal of and interest on the Securities,
but such money need not be segregated from other funds except to the extent required by law.



Except as otherwise defined herein, all terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.



[If a Definitive Security, insert as a separate page—



FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto




	 	 	 
	 

(Please Print or Type Name and Address of Assignee)

	 	 





the within instrument of BASIC ENERGY SERVICES, INC. and does hereby irrevocably constitute and
appoint                      Attorney to transfer said instrument on the books of the within-named
Company, with full power of substitution in the premises.



Please Insert Social Security or Other Identifying Number of Assignee:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

(Signature)
	 	 






21









 





NOTICE: The signature to this assignment must correspond with the name as written upon the face of
the within instrument in every particular, without alteration or enlargement or any change
whatever.]



[If a Security to which Article Fourteen has been made applicable, insert the following Form of
Notation on such Security relating to the Securities Guarantee—



Each of the Guarantors (which term includes any successor Person in such capacity under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities of this series and all other
amounts due and payable under the Indenture and the Securities of this series by the Company.



The obligations of the Guarantors to the Holders of Securities of this series and to the Trustee
pursuant to the Securities Guarantee and the Indenture are expressly set forth in Article Fourteen
of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Securities Guarantee.




	 	 	 	 	 	 	 
	 	 	Guarantors:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF EACH GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	]	 
	 

	 	 	 	 

	 






Section 2.4. Global Securities.




     Every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:




THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF
AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.




EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.



     If Securities of a series are issuable in whole or in part in the form of one or more Global
Securities, as specified as contemplated by Section 3.1, then, notwithstanding clause (i) of
Section 3.1 and the provisions of Section 3.2, any Global Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities represented thereby may from time to time be
reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any reduction or



22









 







increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions
of Section 3.3, Section 3.4 and Section 3.5, the Trustee shall deliver and redeliver any Global
Security in the manner and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. Any instructions by the Company with respect to endorsement or
delivery or redelivery of a Global Security shall be in a Company Order (which need not comply with
Section 1.3 and need not be accompanied by an Opinion of Counsel).



     The provisions of the last sentence of Section 3.3 shall apply to any Security represented by
a Global Security if such Security was never issued and sold by the Company and the Company
delivers to
the Trustee the Global Security together with a Company Order (which need not comply with
Section 1.3 and need not be accompanied by an Opinion of Counsel) with regard to the reduction or
increase, as the case may be, in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last sentence of Section 3.3.



Section 2.5. Form of Trustee’s Certificate of Authentication.




     The Trustee’s certificate(s) of authentication shall be in substantially the following form:




This is one of the Securities of the series designated [insert title of applicable
series] referred to in the within-mentioned Indenture.



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST 

COMPANY, N.A., as Trustee


 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



ARTICLE THREE

THE SECURITIES




Section 3.1. Amount Unlimited; Issuable in Series.





     The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officer’s
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:




     (a) the title of the Securities of the series (which shall distinguish the Securities
of the series from all other Securities and which may be part of a series of Securities
previously issued);




     (b) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or



23









 







Section 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never
to have been authenticated and delivered hereunder);




     (c) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest;




     (d) the date or dates on which the principal of the Securities of the series is payable
or the method of determination thereof;




     (e) the rate or rates at which the Securities of the series shall bear interest, if
any, or the formula, method or provision pursuant to which such rate or rates are
determined, the date or dates from which such interest shall accrue or the method of
determination thereof, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest Payment Date;




     (f) the place or places where, subject to the provisions of Section 10.2, the principal
of and any premium and interest on Securities of the series shall be payable, Securities of
the series may be surrendered for registration of transfer, Securities of the series may be
surrendered for exchange, and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;




     (g) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;




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




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




     (j) whether payment of principal of and premium, if any, and interest, if any, on the
Securities of the series shall be without deduction for taxes, assessments or governmental
charges paid by Holders of the series;




     (k) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;




     (l) if the amount of payments of principal of and any premium or interest on the
Securities of the series may be determined with reference to an index, the manner in which
such amounts shall be determined;




     (m) if and as applicable, that the Securities of the series shall be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any circumstances other than
those set forth in Section 3.5 in which any such Global Security may be transferred to, and
registered



24









 







and exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such transfer may
be registered;




     (n) any deletions from, modifications of or additions to the Events of Default set
forth in Section 5.1 or the covenants of the Company set forth in Article Ten with respect
to the Securities of such series;




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




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




     (q) if the Securities of the series are to be convertible into or exchangeable for any
other security or property of the Company, including, without limitation, securities of
another Person held by the Company or its Affiliates and, if so, the terms thereof;




     (r) if other than as provided in Section 13.2 and Section 13.3, the means of Legal
Defeasance or Covenant Defeasance as may be specified for the Securities of the series;




     (s) if other than the Trustee, the identity of the initial Security Registrar and any
initial Paying Agent;




     (t) whether the Securities of the series will be guaranteed pursuant to the Securities
Guarantee set forth in Article Fourteen, any modifications to the terms of Article Fourteen
applicable to the Securities of such series and the applicability of any other guarantees;
and




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



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officer’s
Certificate referred to above or in any such indenture supplemental hereto.



     All Securities of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for increases in the
aggregate principal amount of such series of Securities and issuances of additional Securities of
such series or for the establishment of additional terms with respect to the Securities of such
series.



     If any of the terms of the series are established by action taken by or pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by an authorized
officer or other authorized person on behalf of the Company and, if applicable, the Guarantors and
delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth, or
providing the manner for determining, the terms of the series.



25









 





     With respect to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officer’s Certificate may provide general terms for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company and, if applicable, the Guarantors or
one or more agents thereof designated in an Officer’s Certificate, in accordance with a Company
Order.



Section 3.2. Denominations.




     The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 3.1. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.



Section 3.3. Execution, Authentication, Delivery and Dating.




     The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer or any of its Vice Presidents
and need not be attested. The signature of any of these officers on the Securities may be manual
or facsimile. Any Securities Guarantee endorsed on the Securities shall be executed on behalf of
the applicable Guarantor by its Chairman of the Board, its Chief Executive Officer, its President,
its Chief Financial Officer or any of its Vice Presidents and need not be attested. The signature
of any of these officers on any endorsement of the Securities Guarantee may be manual or facsimile.



     Securities and any Securities Guarantee endorsement bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company or a Guarantor, as the case
may be, shall bind the Company or such Guarantor, as the case may be, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such Securities.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities offered in a Periodic Offering,
the Trustee shall authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, thereafter promptly
confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication of Securities of such
series. If the forms or terms of the Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Section 2.1 and Section 3.1, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive such documents as it may reasonably
request. The Trustee shall also be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:




     (a) if the form or forms of such Securities has been established in or pursuant to a
Board Resolution as permitted by Section 2.1, that each such form has been established in
conformity with the provisions of this Indenture;




     (b) if the terms of such Securities have been, or in the case of Securities of a series
offered in a Periodic Offering will be, established in or pursuant to a Board Resolution as



26









 







permitted by Section 3.1, that such terms have been, or in the case of Securities of a
series offered in a Periodic Offering will be, established in conformity with the provisions
of this Indenture,
subject, in the case of Securities of a series offered in a Periodic Offering, to any
conditions specified in such Opinion of Counsel; and




     (c) that such Securities when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions and assumptions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the Company
and, if applicable, the Guarantors, enforceable in accordance with their terms, subject to
the following limitations: (i) bankruptcy, insolvency, moratorium, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws of general
applicability relating to or affecting the enforcement of creditors’ rights, or to general
equity principles, (ii) the availability of equitable remedies being subject to the
discretion of the court to which application therefor is made; and (iii) such other usual
and customary matters as shall be specified in such Opinion of Counsel.


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




     Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officer’s Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security of such series to be issued.



     With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, on the form or forms and terms
thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Section 2.1 and Section 3.1 and this Section,
as applicable, in connection with the first authentication of Securities of such series.



     Each Security shall be dated the date of its authentication.



     No Security, nor any Securities Guarantee endorsed thereon, shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by
the Trustee by manual signature of an authorized officer, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.



Section 3.4. Temporary Securities.




     Pending the preparation of Definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination,




27











 




substantially of the tenor of the Definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such Securities.




     If temporary Securities of any series are issued, the Company will cause Definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of Definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
Definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Securities of the same series and tenor of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities of such series.



Section 3.5. Registration, Registration of Transfer and Exchange.




     The Company shall cause to be kept at the office or agency of the Company in a Place of
Payment required by Section 10.2 a register (the register maintained in such office being herein
sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed as the initial “Security Registrar” for the purpose
of registering Securities and transfers of Securities as herein provided, and its office for such
purpose and at which the Securities Register will be maintained is, at the date hereof, located at
101 Barclay Street, 7 East, New York, New York 10014. For all other purposes, the office of the
Trustee shall be the office at which at any time its corporate trust
business shall be administered, which at the date hereof is located
at 601 Travis Street, 18th Floor, Houston, Texas 77002, Attention:
Corporate Trust Services. The Company may at any time replace such Security
Registrar, change such office or agency or act as its own Security Registrar. The Company will
give prompt written notice to the Trustee of any change of the Security Registrar or of the
location of such office or agency.



     Upon surrender for registration of transfer of any Security of any series at the office or
agency maintained pursuant to Section 10.2 for such purpose, the Company and, if applicable, the
Guarantors shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities, with an endorsement of the
Securities Guarantee, if applicable, executed by the Guarantors, of the same series and tenor, of
any authorized denominations and of a like aggregate principal amount.



     At the option of the Holder, Securities of any series (except a Global Security) may be
exchanged for other Securities of the same series and tenor, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company and, if
applicable, the Guarantors shall execute and the Trustee shall authenticate and deliver, the
Securities, with an endorsement of the Securities Guarantee, if applicable, executed by the
Guarantors, which the Holder making the exchange is entitled to receive.



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



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of



28









 







transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving
any transfer.



     The Company shall not be required (a) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 11.3 and ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.



     Notwithstanding any other provisions of this Indenture and except as otherwise specified with
respect to any particular series of Securities as contemplated by Section 3.1, a Global Security
representing all or a portion of the Securities of a series may not be transferred, except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
Every Security authenticated and delivered upon registration of, transfer of, or in exchange for or
in lieu of, a Global Security shall be a Global Security except as provided in the two paragraphs
immediately following.



     If at any time the Depositary for any Securities of a series represented by one or more Global
Securities notifies the Company that it is unwilling or unable to continue as Depositary for such
Securities or if at any time the Depositary for such Securities shall no longer be eligible to
continue as Depositary under Section 3.1 or ceases to be a clearing agency registered under the
Exchange Act, the Company shall appoint a successor Depositary with respect to such Securities. If
a successor Depositary for such Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company’s election
pursuant to Section 3.1 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Company and, if applicable, the Guarantors will execute and the
Trustee, upon receipt of a Company Order for the authentication and delivery of Definitive
Securities of such series, will authenticate and deliver, Securities, with an endorsement of the
Securities Guarantee, if applicable, executed by the Guarantors, of such series in definitive
registered form without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing such Securities in
exchange for such Global Security or Securities registered in the names of such Persons as the
Depositary shall direct.



     The Company may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event, the Company and, if applicable, the Guarantors will
execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of
Definitive Securities of such series, will authenticate and deliver, Securities, with an
endorsement of the Securities Guarantee, if applicable, executed by the Guarantors, of such series
in definitive registered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or Securities representing
such Securities in exchange for such Global Security or Securities registered in the names of such
Persons as the Depositary shall direct.



29









 





     If specified by the Company pursuant to Section 3.1 with respect to Securities represented by
a Global Security, the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon,
the Company and, if applicable, the Guarantors shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of Securities in definitive registered form,
shall authenticate and deliver, without service charge:




     (i) to the Person specified by such Depositary a new Security or Securities, with an
endorsement of the Securities Guarantee, if applicable, executed by the Guarantors, of the
same series and tenor, of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Person’s beneficial interest in
the Global Security; and




     (ii) to such Depositary a new Global Security, with an endorsement of the Securities
Guarantee, if applicable, executed by the Guarantors, in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and delivered pursuant to clause (i)
above.



     Every Person who takes or holds any beneficial interest in a Global Security agrees that:




     (A) the Company, the Guarantors (if applicable) and the Trustee may deal with the
Depositary as sole owner of the Global Security and as the authorized representative of such
Person;




     (B) such Person’s rights in the Global Security shall be exercised only through the
Depositary and shall be limited to those established by law and agreement between such
Person and the Depositary and/or direct and indirect participants of the Depositary;




     (C) the Depositary and its participants make book-entry transfers of beneficial
ownership among, and receive and transmit distributions of principal and interest on the
Global Securities to, such Persons in accordance with their own procedures; and




     (D) none of the Company, the Guarantors (if applicable), the Trustee, nor any agent of
any of them will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.



Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.




     If any mutilated Security is surrendered to the Trustee, together with, in proper cases, such
security or indemnity as may be required by the Company, the Guarantors (if applicable) or the
Trustee to save each of them and any agent of any of them harmless, the Company and, if applicable,
the Guarantors, shall execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security, with an endorsement of the Securities Guarantee, if applicable, executed by the
Guarantors, of the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.



     If there shall be delivered to the Company, the Guarantors (if applicable) and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such
security or indemnity as may be required by them to save each of them and any agent of any of them
harmless, then,



30









 







in the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company and, if applicable, the Guarantors shall execute and
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security,
a new Security, with an endorsement of the Securities Guarantee, if applicable, executed by the
Guarantors, of the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company and, if applicable, the Guarantors, regardless of whether the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of that series duly
issued hereunder.



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



Section 3.7. Payment of Interest; Interest Rights Preserved.




     Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.



     Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:




     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted



31









 







Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).




     (b) The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.


Subject to the foregoing provisions of this Section, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Security.




Section 3.8. Persons Deemed Owners.




     Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, prior to due presentment of a Security for registration of transfer, the Company, the
Trustee and, if applicable, the Guarantors and any agent thereof may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 3.5 and Section 3.7) any interest on such
Security and for all other purposes whatsoever, regardless of whether such Security be overdue, and
none of the Company, the Trustee nor, if applicable, the Guarantors nor any agent of any of them
shall be affected by notice to the contrary.



     No holder of any beneficial interest in any Global Security held on its behalf by a Depositary
shall have any rights under this Indenture with respect to such Global Security, and such
Depositary may be treated by the Company, the Trustee, and, if applicable, the Guarantors and any
agent of thereof as the owner of such Global Security for all purposes whatsoever.



Section 3.9. Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of in accordance with its customary
practices, and the Trustee shall thereafter deliver to the Company a certificate with respect to
such disposition from time to time upon written request.



32









 





Section 3.10. Computation of Interest.




     Except as otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day
months.



Section 3.11. CUSIP or CINS Numbers.




     The Company in issuing the Securities may use “CUSIP” or “CINS” numbers (if then generally in
use, and in addition to the other identification numbers printed on the Securities), and, if so,
the Trustee shall use “CUSIP” or “CINS” 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 “CUSIP” or “CINS” 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 “CUSIP” or “CINS” numbers.



ARTICLE FOUR

SATISFACTION AND DISCHARGE




Section 4.1. Satisfaction and Discharge of Indenture.




     This Indenture shall cease to be of further effect and will be discharged with respect to the
Securities of any series (except as to any surviving rights of registration of transfer or exchange
of Securities and certain rights of the Trustee, in each case, herein expressly provided for), and
the Trustee, upon Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with respect to such
Securities, when:




     (a) either:




     (i) all such Securities theretofore authenticated and delivered (other than (A)
such Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, and (B) such Securities for the payment
of which money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or




     (ii) all such Securities not theretofore delivered to the Trustee for
cancellation:




     (A) have become due and payable; or




     (B) will become due and payable at their Stated Maturity within one
year; or




     (C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company;




and the Company, in the case of (ii)(A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to



33









 







the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be, together with instructions from the Company irrevocably directing the
Trustee to apply such funds to the payment thereof at maturity or redemption, as the
case may be;




     (b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to such Securities; and




     (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, which, taken together, state that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture with respect to such Securities
have been complied with.


Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of
any series, (x) the obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign
under Section 6.10 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the obligations of the Company and the Trustee under
Section 4.2, Section 6.6, Section 10.2 and the last paragraph of Section 10.3 shall survive.




Section 4.2. Application of Trust Money.




     Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for the payment of
which such money has been deposited with the Trustee.



ARTICLE FIVE

REMEDIES




Section 5.1. Events of Default.




     “Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be 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):




     (a) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days (regardless
of whether such payment is prohibited by the provisions of Article Fifteen hereof); or




     (b) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity (regardless of whether such payment is prohibited by the
provisions of Article Fifteen hereof); or




     (c) default in the performance, or breach, of any covenant set forth in Article Ten in
this Indenture (other than a covenant a default in the performance of which or the breach of
which is elsewhere in this Section specifically dealt with or which has expressly been
included in this



34









 







Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a “Notice of Default” hereunder; or




     (d) default in the performance, or breach, of any covenant in this Indenture (other
than a covenant in Article Ten or any other covenant a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach for a period of 180 days
after there has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
or




     (e) the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of any order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general assignment for the benefit of its
creditors; or




     (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a
Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company; and the order or decree remains unstayed and in effect for
30 consecutive days; or




     (g) default in the deposit of any sinking fund payment when due; or




     (h) any other Event of Default provided with respect to Securities of that series in
accordance with Section 3.1.



Section 5.2. Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities of that series to
be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. Notwithstanding the foregoing, if an Event of Default specified in
clause (e) or (f) of Section 5.1 occurs, the Securities of any series at the time Outstanding shall
be due and payable immediately without further action or notice.



     At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article Five provided, the Holders of a majority in principal amount
of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:



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     (a) the Company or, if applicable, one or more of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay:




     (i) all overdue interest on all Securities of that series;




     (ii) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities;




     (iii) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities; and




     (iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and




     (b) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 5.13.


No such rescission shall affect any subsequent default or impair any right consequent thereon.




Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.




     The Company covenants that if:




     (a) default is made in the payment of any installment of interest on any Security when
such interest becomes due and payable and such default continues for a period of 30 days
(regardless of whether such payment is prohibited by the provisions of Article Fifteen
hereof); or




     (b) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof (regardless of whether such payment is prohibited by the
provisions of Article Fifteen hereof),


the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.




     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or, if applicable, the Guarantors or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or, if applicable, the Guarantors or any other obligor upon
such Securities, wherever situated.



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     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.



Section 5.4. Trustee May File Proofs of Claim.




     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or, if applicable, any Guarantor or any other obligor upon the Securities, their property
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company or, if applicable, the Guarantors for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding; and




     (b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, if the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.7.




     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, compromise,
arrangement, adjustment or composition affecting the Securities or, if applicable, the Securities
Guarantee or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of
the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member
of a creditors’ or other similar committee.



Section 5.5. Trustee May Enforce Claims Without Possession of Securities.




     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



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Section 5.6. Application of Money Collected.




     Any money collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:




     FIRST: To the payment of all amounts due the Trustee under Section 6.7;




     SECOND: Subject to Article Fifteen, to the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities for principal and
any premium and interest, respectively; and




     THIRD: The balance, if any, to the Company.



Section 5.7. Limitation on Suits.




     No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture (including, if applicable, the Securities
Guarantee), or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:




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




     (b) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;




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




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




     (e) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;



it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such Holders.



Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest.




     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional (subject to Section 3.7, Section 9.2, Article
Fifteen and Article Sixteen), to receive payment of the principal of and any premium and interest
on such Security on



38









 







the Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such Holder.



Section 5.9. Restoration of Rights and Remedies.




     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.



Section 5.10. Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.



Section 5.11. Delay or Omission Not Waiver.




     To fullest extent permitted by applicable law, no delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.



Section 5.12. Control by Holders.




     The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series; provided, however, that:




     (a) such direction shall not be in conflict with any rule of law or with this
Indenture;




     (b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and




     (c) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall determine that the
proceeding so directed would involve the Trustee in personal liability.



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Section 5.13. Waiver of Past Defaults.




     By written notice to the Company and the Trustee, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to such series and its
consequences, except:




     (a) a continuing default in the payment of the principal of or any premium or interest
on any Security of such series; or




     (b) a default in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
of such series affected.


Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.




Section 5.14. Undertaking for Costs.




     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant, other than
the Trustee, in such suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).



Section 5.15. Waiver of Stay or Extension Laws.




     Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so)
that it will 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 each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.



40









 





ARTICLE SIX

THE TRUSTEE




Section 6.1. Certain Duties and Responsibilities.





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




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




     (ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether they conform to the
requirements of this Indenture.




     (b) In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of 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 man would exercise or use under the
circumstances in the conduct of his own affairs.




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




     (i) this Subsection shall not be construed to limit the effect of Subsection
(a) of this Section;




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




     (iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
series, given pursuant to Section 5.12, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and




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



41









 






     (d) Regardless of whether therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.



Section 6.2. Notice of Defaults.




     Within 90 days after the occurrence of any Default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such Default hereunder known
to the Trustee, unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of or any premium or interest on
any Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee may withhold from Holders of Securities notice of any
continuing Default or Event of Default if the Trustee in good faith determines that the withholding
of such notice is in the interest of the Holders of Securities of such series; and, provided,
further, that in the case of any Default of the character specified in Section 5.1(c) with respect
to Securities of such series, no such notice to Holders shall be given until at least 90 days after
the occurrence thereof and that in the case of any Default of the character specified in Section
5.1(d) with respect to Securities of such series, no such notice to Holders shall be given
until at least 180 days after the occurrence thereof.



Section 6.3. Certain Rights of Trustee.




     Subject to the provisions of Section 6.1:




     (a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;




     (b) any request or direction of the Company or a Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than delivery of any
Security to the Trustee for authentication and delivery pursuant to Section 3.3, which shall
be sufficiently evidenced as provided therein) and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;




     (c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
shall be entitled to receive and may, in the absence of bad faith on its part, rely upon an
Officer’s Certificate;




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




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



42









 






     (f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;




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




     (h) the Trustee may request that the Company and, if applicable, the Guarantors deliver
an Officer’s Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which
Officer’s Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such certificate
previously delivered and not superseded;




     (i) the Trustee shall be entitled to the rights and protections afforded to the Trustee
pursuant to this Article Six in acting as a Paying Agent or Security Registrar hereunder;




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




     (k) anything in this Indenture notwithstanding, in no event shall the Trustee be liable
for any special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including but not limited to loss of profit), even if the Company has been advised as to
the likelihood of such loss or damage and regardless of the form of action.



Section 6.4. Not Responsible for Recitals or Issuance of Securities.




     The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company or, if applicable, the Guarantors,
and the Trustee or any Authenticating Agent assumes no responsibility for their correctness.
Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or the proceeds thereof.



Section 6.5. May Hold Securities.




     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or, if applicable, any Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act and Section 6.8, Section 6.9 and Section 6.13, may otherwise deal with the Company
or, if applicable, the Guarantors with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.



43









 





Section 6.6. Money Held in Trust.




     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company or, if applicable,
one or more of the Guarantors.



Section 6.7. Compensation and Reimbursement.




     The Company agrees:




     (a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);




     (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and




     (c) to indemnify each of the Trustee and its officers, directors, agents and employees
for, and to hold it and them harmless against, any loss, liability or expense incurred
without negligence or willful misconduct on its or their part, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself or themselves against any claim or liability in
connection with the exercise or performance of any of its or their powers or duties
hereunder.



     As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities.



     Without limiting any rights available to the Trustee under applicable law, when the Trustee
incurs expenses or renders services in connection with an Event of Default specified in Section
5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services of the Trustee are intended to constitute expenses
of administration under any applicable Bankruptcy Law.



     The provisions of this Section 6.7 shall survive the resignation or removal of the Trustee and
the termination or satisfaction and discharge of this Indenture and the Legal Defeasance of the
Securities.



Section 6.8. Disqualification; Conflicting Interests.




     Reference is made to Section 310(b) of the Trust Indenture Act. There shall be excluded from
the operation of Section 310(b)(1) of the Trust Indenture Act this Indenture with respect to the
Securities of more than one series.



44









 





Section 6.9. Corporate Trustee Required; Eligibility.




     There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus required by the Trust Indenture Act, subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. The
Trustee shall not be an obligor upon the Securities or an Affiliate thereof. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article Six.



Section 6.10. Resignation and Removal; Appointment of Successor.





     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 6.11.




     (b) The Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of acceptance of
appointment by a successor Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.




     (c) The Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.




     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture
Act after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months; or




     (ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such Holder; or




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




then, in any such case, (A) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (B) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.



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     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any Holder who
has been a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.




     (f) The Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series to all Holders of Securities of such series in
the manner provided in Section 1.7. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its Corporate Trust
Office.



Section 6.11. Acceptance of Appointment by Successor.





     (a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, the successor Trustee so appointed shall execute, acknowledge and deliver to the
Company, the Guarantors (if applicable) and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company, any Guarantor (if applicable) or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.




     (b) In case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the Guarantors (if applicable),
the retiring Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall



46









 







continue to be vested in the retiring Trustee, and (iii) shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company, any Guarantor
(if applicable) or any successor Trustee, such retiring Trustee, upon payment of its
charges, shall execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee with respect to the Securities of the
series to which the appointment of such successor relates and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities such series.




     (c) Upon request of any such successor Trustee, the Company and, if applicable, the
Guarantors shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.




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



Section 6.12. Merger, Conversion, Consolidation or Succession to Business.




     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



Section 6.13. Preferential Collection of Claims Against Company.




     Reference is made to Section 311 of the Trust Indenture Act. For purposes of Section 311(b)
of the Trust Indenture Act:




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




     (b) the term “self-liquidating paper” means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company or, if applicable,
any Guarantor for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by documents
evidencing



47









 







title to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee simultaneously
with the creation of the creditor relationship with the Company or, if applicable, such
Guarantor arising from the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.



Section 6.14. Appointment of Authenticating Agent.




     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.



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



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



48









 





     Except with respect to an Authenticating Agent appointed at the request of the Company or, if
applicable, the Guarantors, the Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14, and the Trustee shall be
entitled to be reimbursed by the Company or, if applicable, the Guarantors for such payments,
subject to the provisions of Section 6.7.



     If an appointment with respect to one or more series is made pursuant to this Section 6.14,
the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternate certificate of authentication in the following form:



     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	[                                        ], as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	As Authenticating Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.




     The Company will furnish or cause to be furnished to the Trustee:




     (a) semi-annually, not more than 15 days after each Regular Record Date for a series of
Securities, a list for such series of Securities, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of such series as of such
Regular Record Date; and




     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;



     provided, however, that if and so long as the Trustee shall be the Security Registrar, no such
list need be furnished with respect to such series of Securities.



Section 7.2. Preservation of Information; Communications to Holders.





     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.




     (b) If three or more Holders (herein referred to as “applicants”) apply in writing to
the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned
a Security for a period of at least six months preceding the date of such application, and
such



49









 







application states that the applicants desire to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such application, at
its election, either:




     (i) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Section 7.2(a); or




     (ii) inform such applicants as to the approximate number of Holders whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 7.2(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such
application.




     If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants, mail to
each Holder whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.2(a) a copy of the form of proxy or
other communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and file with the
SEC, together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to the
best interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the SEC, after
opportunity for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the SEC shall find,
after notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.




     (c) Every Holder of Securities, by receiving and holding the same, agrees with the
Company, the Guarantors (if applicable) and the Trustee that none of the Company, the
Guarantors (if applicable) nor the Trustee nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 7.2(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.2(b).



Section 7.3. Reports by Trustee.




     Any Trustee’s report required pursuant to Section 313(a) of the Trust Indenture Act shall be
dated as of May 15, and shall be transmitted within 60 days after May 15 of each year (but in all
events at intervals of not more than 12 months), commencing with the year 20___, by mail to all
Holders, as their names and addresses appear in the Security Register. A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the SEC and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock exchange.



50









 





Section 7.4. Reports by Company.




     So long as clauses (1), (2) and (3) of Section 314(a) of the Trust Indenture Act (or any
successor provisions of law) are applicable to this Indenture, the Company shall:




     (a) file with the Trustee, within 15 days after the Company files the same with the
SEC, copies of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from time to time by rules
and regulations prescribe) which the Company may be required to file with the SEC pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the SEC, in accordance with rules and regulations prescribed from
time to time by the SEC, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;




     (b) file with the Trustee and the SEC, in accordance with rules and regulations
prescribed from time to time by the SEC, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and




     (c) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the Company pursuant to
clauses (a) and (b) of this Section as may be required by rules and regulations prescribed
from time to time by the SEC.



ARTICLE EIGHT

CONSOLIDATION, AMALGAMATION, MERGER AND SALE




Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.




     The Company shall not consolidate or merge with or into any other Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of the properties and assets of
the Company and, if applicable, the Guarantors on a consolidated basis to any other Person unless:




     (a) either: (i) the Company is the surviving Person; or (ii) the Person formed by or
surviving any such consolidation, amalgamation or merger or resulting from such conversion
(if other than the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation, limited liability company or limited partnership
organized or existing under the laws of the United States, any State thereof or the District
of Columbia;




     (b) the Person formed by or surviving any such conversion, consolidation, amalgamation
or merger (if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the
Company under the Securities and this Indenture pursuant to agreements reasonably
satisfactory to the Trustee, which may include an indenture supplemental hereto;



51









 






     (c) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing; and




     (d) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, amalgamation, merger, conveyance, sale,
transfer or lease and such supplemental indenture, if any, comply with this Article Eight
and that all conditions precedent herein provided for relating to such transaction have been
complied with.



Section 8.2. Successor Substituted.




     Upon any consolidation or merger of the Company with or into any other Person or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of the properties and
assets of the Company and, if applicable, the Guarantors on a consolidated basis in accordance with
Section 8.1, the successor or resulting Person formed by or resulting upon such consolidation or
merger (if other than the Company) or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Company and each of the Guarantors shall be relieved of all obligations and covenants under this
Indenture and the Securities.



ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.1. Without Consent of Holders.




     The Company, the Guarantors and the Trustee may amend or supplement this Indenture, the
Securities Guarantees or the Securities without the consent of any holder of a Security:




     (a) to cure any ambiguity or defect or to correct or supplement any provision herein
that may be inconsistent with any other provision herein; or




     (b) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and, to the
extent applicable, of
the Securities; or




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




     (d) to add a Securities Guarantee and cause any Person to become a Guarantor, and/or to
evidence the succession of another Person to a Guarantor and the assumption by any such
successor of the Securities Guarantee of such Guarantor herein and, to the extent
applicable, endorsed upon any Securities of any series; or




     (e) to secure the Securities of any series; or




     (f) to add to the covenants of the Company such further covenants, restrictions,
conditions or provisions as the Company shall consider to be appropriate for the benefit of
the Holders of all or any series of Securities (and if such covenants, restrictions,
conditions or



52









 







provisions are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company and to make the
occurrence, or the occurrence and continuance, of a Default in any such additional
covenants, restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant, restriction, condition or
provision such amendment or supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default; or




     (g) to make any change to any provision of this Indenture that does not adversely
affect the rights or interests of any Holder of Securities; or




     (h) to provide for the issuance of additional Securities in accordance with the
provisions set forth in this Indenture on the date of this Indenture; or




     (i) to add any additional Defaults or Events of Default in respect of all or any series
of Securities; or




     (j) to add to, change or eliminate any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without interest coupons;
or




     (k) to change or eliminate any of the provisions of this Indenture; provided that any
such change or elimination shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such amendment or supplemental indenture
that is entitled to the benefit of such provision; or




     (l) to establish the form or terms of Securities of any series as permitted by Section
2.1 and Section 3.1, including to reopen any series of any Securities as permitted under
Section 3.1; or




     (m) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or




     (n) to conform the text of the Indenture (and/or any supplemental indenture) or any
debt securities issued thereunder to any provision of a description of such debt securities
appearing in a prospectus or prospectus supplement or an offering memorandum or offering
circular to the extent that such provision was intended to be a verbatim recreation of a
provision of the Indenture (and/or any supplemental indenture) or any debt securities issued
thereunder; or




     (o) to modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualification of this Indenture under the Trust Indenture
Act or under any similar federal statute subsequently enacted, and to add to this Indenture
such other provisions as may be expressly required under the Trust Indenture Act.



53









 





     Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amendment or supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 6.3 hereof, the Trustee is hereby authorized to join with the Company and any
Guarantor in the execution of any such amendment or supplemental indenture, to make any further
appropriate agreements and stipulations that may be therein contained and to accept the conveyance,
transfer, assignment, mortgage, charge or pledge of any property thereunder, but the Trustee shall
not be obligated to enter into any such amendment or supplemental indenture that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



Section 9.2. With Consent of Holders.




     The Company and the Trustee may amend or supplement this Indenture, the Securities Guarantees
and the Securities with the consent of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of each series of Securities affected by such amendment or supplemental
indenture, with each such series voting as a separate class (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange offer for,
Securities) and, subject to Section 5.8 and Section 5.13 hereof, any existing Default or Event of
Default or compliance with any provision of this Indenture, the Securities Guarantees or the
Securities may be waived with respect to each series of Securities with the consent of the Holders
of a majority in principal amount of the Outstanding Securities of such series voting as a separate
class (including consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities).



     Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amendment or supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Securities as aforesaid, and upon
receipt by the
Trustee of the documents described in Section 6.3 hereof, the Trustee will join with the
Company and the Guarantors in the execution of such amendment or supplemental indenture unless such
amendment or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amendment or supplemental Indenture.



     It is not necessary for the consent of the Holders of Securities under this Section 9.2 to
approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient
if such consent approves the substance of the proposed amendment, supplement or waiver.



     After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Company
will mail to the Holders of Securities affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any such amendment, supplemental
indenture or waiver. Subject to Section 5.8 and Section 5.13 hereof, the application of or
compliance with, either generally or in any particular instance, of any provision of this
Indenture, the Securities or the Securities Guarantees may be waived as to each series of
Securities by the Holders of a majority in aggregate principal amount of the Outstanding Securities
of such series voting as a separate class (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Securities). However, without the consent of
each Holder affected, an amendment, supplement or waiver under this Section 9.2 may not (with
respect to any Securities held by a non-consenting Holder):




     (a) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of



54









 







acceleration of the Maturity thereof pursuant to Section 5.2, or change the
coin or currency in which any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or




     (b) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of the Holders of which is required for any such amendment or
supplemental indenture, or the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or




     (c) modify any of the provisions of Section 5.8 or Section 5.13; or




     (d) waive a redemption payment with respect to any Security; provided, however, that
any purchase or repurchase of Securities shall not be deemed a redemption of the Securities;
or




     (e) release any Guarantor from any of its obligations under its Securities Guarantee or
this Indenture, except in accordance with the terms of this Indenture (as amended or
supplemented); or




     (f)
make any change in the foregoing amendment and waiver provisions, except to increase any percentage provided for therein or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby.



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



Section 9.3. Execution of Amendments and Supplemental Indentures.




     In executing, or accepting the additional trusts created by, any amendment or supplemental
indenture permitted by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such amendment or supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



Section 9.4. Effect of Amendments and Supplemental Indentures.




     Upon the execution of any amendment or supplemental indenture under this Article Nine, this
Indenture shall be modified in accordance therewith, and such amendment or supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.



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Section 9.5. Conformity with Trust Indenture Act.




     Every amendment or supplemental indenture executed pursuant to this Article Nine shall conform
to the requirements of the Trust Indenture Act as then in effect.



Section 9.6. Reference in Securities to Amendments or Supplemental Indentures.




     Securities of any series authenticated and delivered after the execution of any amendment or
supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in such amendment or
supplemental indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any such amendment or
supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.



ARTICLE TEN

COVENANTS




Section 10.1. Payment of Principal, Premium and Interest.




     The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.



Section 10.2. Maintenance of Office or Agency.




     The Company will maintain in the United States an office or agency (which may be an office of
the Trustee or Registrar or agent of the Trustee or Registrar) where Securities of each series may
be presented or surrendered for payment and surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



     Except as otherwise specified with respect to a series of Securities as contemplated by
Section 3.1, the Company hereby initially designates the office of the Trustee located at 601
Travis Street, 18th Floor, Houston, Texas 77002, as the Company’s office or agency for each such
purpose for each series of Securities.



Section 10.3. Money for Securities Payments to Be Held in Trust.




     If the Company shall at any time act as its own Paying Agent, with respect to any series of
Securities, it will, on or before each due date of the principal of and any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum



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sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of and any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or
interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the
Trustee of its action or failure so to act. For purposes of this Section 10.3, should a due
date for principal of and any premium or interest on, or sinking fund payment with respect to any
series of Securities not be on a Business Day, such payment shall be due on the next Business Day
without any interest for the period from the due date until such Business Day.



     The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:




     (a) hold all sums held by it for the payment of the principal of and any premium or
interest on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;




     (b) give the Trustee notice of any Default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal and any premium or
interest on the Securities of that series; and




     (c) at any time during the continuance of any such Default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



     The Company and, if applicable, the Guarantors may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with respect to such money.



     Subject to any applicable escheat or abandoned property laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of and any premium or interest on any Security of any series and remaining unclaimed for one year
after such principal, premium or interest has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The New York Times and
The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



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Section 10.4. Existence.




     Subject to Article Eight, the Company and, if any Securities of a series to which Article
Fourteen has been made applicable are Outstanding, each Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the Company and, if applicable, each Guarantor
shall not be required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company or such
Guarantor, as the case may be.



Section 10.5. Statement by Officers as to Default.




     Annually, within 120 days after the close of each fiscal year beginning with the first fiscal
year during which one or more series of Securities are Outstanding, the Company and, if any
Securities of a series to which Article Fourteen has been made applicable are Outstanding, each
Guarantor will deliver to the Trustee a brief certificate (which need not include the statements
set forth in Section 1.3) from the principal executive officer, principal financial officer or
principal accounting officer of the Company and, if applicable, such Guarantor as to his or her
knowledge of the Company’s or such Guarantor’s, as the case may be, compliance (without regard to
any period of grace or requirement of notice provided herein) with all conditions and covenants
under the Indenture and, if the Company or such Guarantor, as the case may be, shall be in Default,
specifying all such Defaults and the nature and status thereof of which such officer has knowledge.



ARTICLE ELEVEN

REDEMPTION OF SECURITIES




Section 11.1. Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with this Article Eleven.



Section 11.2. Election to Redeem; Notice to Trustee.




     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Securities of any
series, the Company shall, at least 30 days prior to the last date for the giving of notice of such
redemption (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company
that is subject to a condition specified in the terms of the Securities of the series to be
redeemed, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance
with such restriction or condition.



Section 11.3. Selection by Trustee of Securities to Be Redeemed.




     If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding
Securities of such series not previously called for redemption, by such method as the Trustee
shall deem



58









 







fair and appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.



     The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal is payable or different rates of interest, or
different methods by which interest may be determined or have any other different tenor or terms,
then the Company may, by written notice to the Trustee, direct that the Securities of such series
to be redeemed shall be selected from among the groups of such Securities having specified tenor or
terms and the Trustee shall thereafter select the particular Securities to be redeemed in the
manner set forth in the preceding paragraph from among the group of such Securities so specified.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.



Section 11.4. Notice of Redemption.




     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.



     All notices of redemption shall state:




     (a) the Redemption Date;




     (b) the Redemption Price, or if not then ascertainable, the manner of calculation
thereof;




     (c) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;




     (d) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;




     (e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price; and




     (f) that the redemption is for a sinking fund, if such is the case.


Notice of redemption of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company’s request, by the Trustee in the name and at the expense of the
Company.




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Section 11.5. Deposit of Redemption Price.




     Prior to any Redemption Date, the Company shall 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 as
provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.



Section 11.6. Securities Payable on Redemption Date.




     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that unless otherwise specified with respect to Securities of any series as contemplated in Section
3.1, installments of interest the Stated Maturity of which is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant record dates according to their terms
and the provisions of Section 3.7.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.



Section 11.7. Securities Redeemed in Part.




     Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.



ARTICLE TWELVE

SINKING FUNDS




Section 12.1. Applicability of Article.




     The provisions of this Article Twelve shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1
for Securities of such series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund



60









 







payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.



Section 12.2. Satisfaction of Sinking Fund Payments with Securities.




     The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.



Section 12.3. Redemption of Securities for Sinking Fund.




     Not less than 45 days prior to each sinking fund payment date for any series of Securities
(unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so credited, and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 11.6 and Section 11.7.



ARTICLE THIRTEEN

DEFEASANCE




Section 13.1. Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may, at the option of its Board of Directors evidenced by a Board Resolution, and
at any time, elect to have either Section 13.2 or Section 13.3 hereof be applied to all outstanding
Securities upon compliance with the conditions set forth below in this Article Thirteen.



Section 13.2. Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 13.1 hereof of the option applicable to this Section
13.2, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 13.4 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Securities (including the Securities Guarantees) on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and
discharged the entire Debt represented by the outstanding Securities (including the Securities
Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section
13.5 hereof and the other sections of this Indenture referred to in clauses (a) and (b) below, and
to have satisfied all their other obligations under such



61









 







Securities, the Securities Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions which will survive
until otherwise terminated or discharged hereunder:




     (a) the rights of Holders of Outstanding Securities to receive payments in respect of
the principal of, or interest or premium, if any, on, such Securities when such payments are
due from the trust referred to in Section 13.4 hereof;




     (b) the Company’s obligations with respect to such Securities under Section 3.4,
Section 3.5, Section 3.6, Section 10.2 and Section 10.3 hereof;




     (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Guarantors’ obligations in connection therewith; and




     (d) this Article Thirteen.



     Subject to compliance with this Article Thirteen, the Company may exercise its option under
this Section 13.2 notwithstanding the prior exercise of its option under Section 13.3 hereof.



Section 13.3. Covenant Defeasance.




     Upon the Company’s exercise under Section 13.1 hereof of the option applicable to this Section
13.3, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 13.4 hereof, be released from each of their obligations under the covenants
contained in Section 7.4, Section 8.1 and Section 10.4 hereof as well as any Additional Defeasible
Provisions (such release and termination hereinafter referred to as “Covenant Defeasance”), and the
Securities will thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Securities will not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Securities and
Securities Guarantees, the Company and the Guarantors may fail to comply with and will have no
liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such failure to comply
will not constitute a Default or an Event of Default under Section 5.1 hereof, but, except as
specified above, the remainder of this Indenture and such Securities and Securities Guarantees will
be unaffected thereby. In addition, upon the Company’s exercise under Section 13.1 hereof of the
option applicable to this Section 13.3 hereof, subject to the satisfaction of the conditions set
forth in Section 13.4 hereof, any Event of Default that
constitutes an Additional Defeasible Provision will no longer constitute an Event of Default.



Section 13.4. Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 13.2
or Section 13.3 hereof:




     (a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Securities, cash in U.S. dollars, non-callable U.S. Government
Obligations, or a combination of cash in U.S. dollars and non-callable U.S. Government
Obligations, in such amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal



62









 







firm, or firm of independent public accountants, to
pay the principal of, and interest and premium, if any, on, the Outstanding Securities on the
stated date for payment thereof or on the applicable redemption date, as the case may be,
and the Company must specify whether the Securities are being defeased to such stated date
for payment or to a particular redemption date;




     (b) in the case of an election under Section 13.2 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:




     (i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (ii) since the Issue Date, 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 will
confirm that, the Holders of the Outstanding Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal 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 Legal Defeasance had not
occurred;




     (c) in the case of an election under Section 13.3 hereof, the Company must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the Outstanding Securities 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;




     (d) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit);




     (e) the deposit must not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;




     (f) such Legal Defeasance or Covenant Defeasance must not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;




     (g) the Company must deliver to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Securities
over the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;




     (h) the Company must deliver to the Trustee an Officer’s Certificate stating that all
conditions precedent set forth in clauses (a) through (f) of this Section 13.4 have been
complied with; and




     (i) the Company must deliver to the Trustee an Opinion of Counsel (which Opinion of
Counsel may be subject to customary assumptions, qualifications and exclusions) stating
that



63









 







all conditions precedent set forth in clauses (b), (c) and (f) of this Section 13.4
have been complied with.



Section 13.5. Deposited Money and U.S. Government Obligations to be Held in Trust, Other
Miscellaneous Provisions.




     Subject to Section 13.6 hereof, all money and non-callable U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 13.5, the “Trustee”) pursuant to Section 13.4 hereof in
respect of the Outstanding Securities will be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.



     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to
Section 13.4 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the Outstanding
Securities.



     Notwithstanding anything in this Article Thirteen to the contrary, the Trustee will deliver or
pay to the Company from time to time upon the request of the Company any money or non-callable U.S.
Government Obligations held by it as provided in Section 13.4 hereof which, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 13.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.



Section 13.6. Repayment.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal, premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Security will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in The New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.



Section 13.7. Reinstatement.




     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
U.S. Government Obligations in accordance with Section 13.2 or Section 13.3 hereof, as the case may
be, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’
obligations under this Indenture and the Securities and the Securities Guarantees will be revived
and reinstated as though no deposit had occurred pursuant to Section 13.2 or Section 13.3 hereof
until such time as the Trustee or



64









 







Paying Agent is permitted to apply all such money in accordance
with Section 13.2 or Section 13.3 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of or premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE FOURTEEN

GUARANTEE OF SECURITIES




Section 14.1. Securities Guarantee.





     (a) Subject to the other provisions of this Article Fourteen, each of the Guarantors
hereby jointly and severally guarantees to each Holder of a Security of each series to which
this Article Fourteen has been made applicable as provided in Section 3.1(t) (the Securities
of such series being referred to herein as the “Guaranteed Securities”) (which Security has
been authenticated and delivered by the Trustee), and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture, the Guaranteed
Securities, or the obligations of the Company hereunder or thereunder, that:




     (i) the principal of and premium, if any, and interest on the Guaranteed
Securities will be promptly paid in full when due, whether at maturity, or by
acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the
Guaranteed Securities, if any, if lawful, and all other obligations of the
Company to the Holders of Guaranteed Securities, or the Trustee hereunder or
thereunder, will be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and




     (ii) in case of any extension of time of payment or renewal of any Guaranteed
Securities or any of such other obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.




Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee
of collection.




     (b) To the extent permissible under applicable law, the obligations of the Guarantors
under this Securities Guarantee are unconditional, irrespective of the validity, regularity
or enforceability of the Guaranteed Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Guaranteed Securities with
respect to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. To the extent
permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this Securities Guarantee will not be discharged
except by complete performance of the obligations contained in the Guaranteed Securities and
this Indenture.



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     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Securities Guarantee, to the extent theretofore discharged,
will be reinstated in full force and effect.




     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. Each Guarantor further agrees that, to the
extent permitted by applicable law, as between the Guarantors, on the one hand, and the
Holders of Guaranteed Securities and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the
purposes of this Securities Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such obligations as provided in
Article Five hereof, such obligations (regardless of whether due and payable) will forthwith
become due and payable by the Guarantors for the purpose of this Securities Guarantee. The
Guarantors will have the right to seek contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights of the Holders under the Securities
Guarantee.



Section 14.2. Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Guaranteed Securities, each Holder thereof, hereby
confirms that it is the intention of all such parties that the Securities Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
State law to the extent applicable to any Securities Guarantee. To effectuate the foregoing
intention, the Trustee, to the extent permitted under applicable law, the Holders and each
Guarantor hereby irrevocably agree that the obligations of such Guarantor will be limited to the
maximum amount that will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this Article Fourteen,
result in the obligations of such Guarantor under its Securities Guarantee not constituting a
fraudulent transfer or conveyance.



Section 14.3. Execution and Delivery of Securities Guarantee Notation.




     To evidence its Securities Guarantee set forth in Section 14.1 hereof, each Guarantor hereby
agrees that a notation of such Securities Guarantee substantially in the form set forth in Section
2.3 or established in or pursuant to a Board Resolution or in an indenture supplemental hereto, in
accordance with the provisions of Section 2.1, will be endorsed by an officer of such Guarantor on
each Guaranteed Security authenticated and delivered by the Trustee and that this Indenture will be
executed on behalf of such Guarantor by one of its officers.



     Each Guarantor hereby agrees that its Securities Guarantee set forth in Section 14.1 hereof
will remain in full force and effect notwithstanding any failure to endorse on each Guaranteed
Security a notation of such Securities Guarantee.



     If an officer whose signature is on this Indenture or on the Securities Guarantee no longer
holds that office at the time the Trustee authenticates the Guaranteed Security on which a
Securities Guarantee is endorsed, the Securities Guarantee will be valid nevertheless.



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     The delivery of any Guaranteed Security by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Securities Guarantee of such Guaranteed Security set
forth in this Indenture on behalf of the Guarantors.



ARTICLE FIFTEEN

SUBORDINATION OF SECURITIES




Section 15.1. Securities Subordinated to Senior Debt.




     The Company and the Trustee each covenants and agrees, and each Holder, by its acceptance of a
Security, likewise covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article Fifteen; and each Person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees that the payment of the
principal of and interest and premium, if any, on each and all of the Securities shall, to the
extent and in the manner set forth in this Article Fifteen, be subordinated in right of payment to
the prior payment in full, in cash or cash equivalents, of all existing and future Senior Debt.



Section 15.2. No Payment on Securities in Certain Circumstances.





     (a) No direct or indirect payment by or on behalf of the Company of the principal of or
interest or premium, if any, on each and all of the Securities (other than with the money,
securities or proceeds held under any defeasance trust established in accordance with this
Indenture), whether pursuant to the terms of the Securities or upon acceleration or
otherwise, shall be made if, at the time of such payment, there exists a default in the
payment of all or any portion of the obligations on any Designated Senior Debt and such
default shall not have been cured or waived or the benefits of this sentence waived by or on
behalf of the holders of such Senior Debt.




     (b) During the continuance of any other event of default with respect to any Designated
Senior Debt pursuant to which the maturity thereof may be accelerated, upon receipt by the
Trustee of written notice from the trustee or other representative for the holders of such
Designated Senior Debt (or the holders of at least a majority in principal amount of such
Designated Senior Debt then outstanding), no payment of the principal of or interest or
premium, if any, on each and all of the Securities (other than with the money, securities or
proceeds held under any defeasance trust established in accordance with this Indenture) may
be made by or on behalf of the Company upon or in respect of the Securities for a period (a
“Payment Blockage Period”) commencing on the date of receipt of such notice and ending 179
days thereafter (unless, in each case, such Payment Blockage Period has been terminated by
written notice to the Trustee from such trustee of, or other representatives for, such
holders or by payment in full in cash or cash equivalents of such Designated Senior Debt or
such event of default has been cured or waived). Not more than one Payment Blockage Period
may be commenced with respect to the Securities during any period of 360 consecutive days.
Notwithstanding anything in this Indenture to the contrary, there must be 180 consecutive
days in any 360-day period in which no Payment Blockage Period is in effect. No event of
default that existed or was continuing (it being acknowledged that any subsequent action
that would give rise to an event of default pursuant to any provision under which an event
of default previously existed or was continuing shall constitute a new event of default for
this purpose) on the date of the commencement of any Payment Blockage Period with respect to
the Designated Senior Debt initiating such Payment Blockage Period shall be, or shall be
made, the basis for the commencement of a second Payment Blockage Period by the trustee or
other representative for the holders of such Designated Senior



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Debt, whether or not within a
period of 360 consecutive days, unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days.




     (c) In the event that, notwithstanding the foregoing, any payment shall be received by
the Trustee or any Holder when such payment is prohibited by clause (a) or (b) above, the
Trustee shall promptly notify the holders of Senior Debt of such prohibited payment and such
payment shall be held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Debt or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have been issued,
as their respective interests may appear, but only to the extent that, upon notice from the
Trustee to the holders of Senior Debt that such prohibited payment has been made, the
holders of the Senior Debt (or their representative or representatives of a trustee) within
30 days of receipt of such notice from the Trustee notify the Trustee of the amounts then
due and owing on the Senior Debt, if any, and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Senior Debt and any excess above such amounts
due and owing on Senior Debt shall be paid to the Company.



Section 15.3. Payment over of Proceeds upon Dissolution, Etc.





     (a) Upon any payment or distribution of assets or securities of the Company of any kind
or character, whether in cash, property or securities (other than with the money, securities
or proceeds held under any defeasance trust established in accordance with this Indenture),
in connection with any dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary, or in bankruptcy,
insolvency, receivership or other proceedings or other marshalling of assets for the benefit
of creditors, all amounts due or to become due upon all Senior Debt shall first be paid in
full, in cash or cash equivalents, before the Holders or the Trustee on their behalf shall
be entitled to receive any payment by (or on behalf of) the Company on account of the
Securities, or any payment to acquire any of the Securities for cash, property or
securities, or any distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by, or on behalf of, the Company on any Security
(other than with the money, securities or proceeds held under any defeasance trust
established in accordance with this Indenture) in connection with any such dissolution,
winding up, liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or securities,
to which the Holders or the Trustee on their behalf would be entitled, but for the
provisions of this Article Fifteen, shall be made by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person making such payment or
distribution, or by the Holders or the Trustee if received by them or it, directly to the
holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of
Senior Debt held by such holders) or their representatives or to any trustee or trustees
under any indenture pursuant to which any such Senior Debt may have been issued, as their
respective interests appear, to the extent necessary to pay all such Senior Debt in full, in
cash or cash equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.




     (b) To the extent any payment of Senior Debt (whether by or on behalf of the Company,
as proceeds of security or enforcement of any right of setoff or otherwise) is declared to
be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee or
other similar Person, the Senior Debt or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not occurred. To the
extent the obligation to repay any Senior



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Debt is declared to be fraudulent or invalid or
otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then the obligation so declared fraudulent or invalid or otherwise set aside
(and all other amounts that would come due with respect thereto had such obligation not been
so affected) shall be deemed to be reinstated and outstanding as Senior Debt for all
purposes hereof as if such declaration or setting aside had not occurred.




     (c) In the event that, notwithstanding the provision in clause (a) above prohibiting
such payment or distribution, any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, shall be received
by the Trustee or any Holder at a time when such payment or distribution is prohibited by
clause (a) above and before all obligations in respect of Senior Debt are paid in full, in
cash or cash equivalents, such payment or distribution shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of Senior Debt (pro
rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their representatives or to
any trustee or trustees under any indenture pursuant to which any such Senior Debt may have
been issued, as their respective interests appear, for application to the payment of all
such Senior Debt remaining unpaid in full, in cash or cash equivalents, after giving effect
to any concurrent payment, distribution or provision therefor to or for the holders of such
Senior Debt.




     (d) For purposes of this Section 15.3, the words “cash, property or securities” shall
not be deemed to include, so long as the effect of this clause is not to cause the
Securities to be treated in any case or proceeding or similar event described in this
Section 15.3 as part of the same class of claims as the Senior Debt or any class of claims
pari passu with, or senior to, the Senior Debt for any payment or distribution, securities
of the Company or any other Person provided for by a plan of reorganization or readjustment
that are subordinated, at least to the extent that the Securities are subordinated, to the
payment of all Senior Debt then outstanding; provided that (i) if a new Person results from
such reorganization or readjustment, such Person assumes the Senior Debt and (ii) the rights
of the holders of the Senior Debt are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or the merger of
the Company with or into, another Person or the liquidation or dissolution of the Company
following the sale, conveyance, transfer, lease or other disposition of all or substantially
all of its property and assets to another Person upon the terms and conditions provided in
Section 8.1 of this Indenture shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 15.3 if such other Person shall, as a part
of such consolidation, merger, sale, conveyance, transfer, lease or other disposition,
comply (to the extent required) with the conditions stated in Section 8.1 of this Indenture.



Section 15.4. Subrogation.





     (a) Upon the payment in full of all Senior Debt in cash or cash equivalents, the
Holders shall be subrogated to the rights of the holders of Senior Debt to receive payments
or distributions of cash, property or securities of the Company made on such Senior Debt
until the principal of and premium, if any, and interest on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to the holders
of the Senior Debt of any cash, property or securities to which the Holders or the Trustee
on their behalf would be entitled except for the provisions of this Article Fifteen, and no
payment pursuant to the provisions of this Article Fifteen to the holders of Senior Debt by
the Holders or the Trustee on their behalf shall, as between the Company, its creditors
other than holders of Senior Debt, and the Holders, be deemed to be a payment by the Company
to or on account of the Senior Debt. It is understood that the provisions of this Article
Fifteen are intended solely for the purpose of



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defining the relative rights of the Holders,
on the one hand, and the holders of the Senior Debt, on the other hand.




     (b) If any payment or distribution to which the Holders would otherwise have been
entitled but for the provisions of this Article Fifteen shall have been applied, pursuant to
the provisions of this Article Fifteen, to the payment of all amounts payable under Senior
Debt, then, and in such case, the Holders shall be entitled to receive from the holders of
such Senior Debt any payments or distributions received by such holders of Senior Debt in
excess of the amount required to make payment in full, in cash or cash equivalents, of such
Senior Debt of such holders.



Section 15.5. Obligations of Company Unconditional.





     (a) Nothing contained in this Article Fifteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than the holders of the
Senior Debt, nor shall anything herein or therein prevent the Holders or the Trustee on
their behalf from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Fifteen of the
holders of the Senior Debt.




     (b) Without limiting the generality of the foregoing, nothing contained in this Article
Fifteen will restrict the right of the Trustee or the Holders to take any action to declare
the Securities to be due and payable prior to their Stated Maturity pursuant to Section 5.2
of this Indenture or to pursue any rights or remedies hereunder; provided, however, that all
Senior Debt then due and payable or thereafter declared to be due and payable shall first be
paid in full, in cash or cash equivalents, before the Holders or the Trustee are entitled to
receive any direct or indirect payment from the Company with respect to any Security.



Section 15.6. Notice to Trustee.





     (a) The Company shall give prompt written notice to the Trustee of any fact known to
the Company that would prohibit the making of any payment to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article Fifteen. The Trustee shall not be
charged with the knowledge of the existence of any default or event of default with respect
to any Senior Debt or of any other facts that would prohibit the making of any payment to or
by the Trustee unless and until the Trustee shall have received notice in writing at its
Corporate Trust Office to that effect signed by an Officer of the Company, or by a holder of
Senior Debt or trustee or agent thereof; and prior to the receipt of any such written
notice, the Trustee shall, subject to Article Six, be entitled to assume that no such facts
exist; provided that, if the Trustee shall not have received the notice provided for in this
Section 15.6 at least two Business Days prior to the date upon which, by the terms of this
Indenture, any monies shall become payable for any purpose (including, without limitation,
the payment of the principal of or premium, if any, or interest on any Security), then,
notwithstanding anything herein to the contrary, the Trustee shall have full power and
authority to receive any monies from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the contrary that may
be received by it on or after such prior date except for an acceleration of the Securities
prior to such application. Nothing contained in this Section 15.6 shall limit the right of
the holders of Senior Debt to recover payments as contemplated by this Article Fifteen. The
foregoing shall



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not apply if the Paying Agent is the Company. The Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing himself or itself
to be a holder of any Senior Debt (or a trustee on behalf of, or other representative of,
such holder) to establish that such notice has been given by a holder of such Senior Debt or
a trustee or representative on behalf of any such holder.




     (b) In the event that the Trustee determines in good faith that any evidence is
required with respect to the right of any Person as a holder of Senior Debt to participate
in any payment or distribution pursuant to this Article Fifteen, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Fifteen and, if such evidence is not furnished to the
Trustee, the Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.



Section 15.7. Reliance on Judicial Order or Certificate of Liquidating Agent.




     Upon any payment or distribution of assets or securities referred to in this Article Fifteen,
the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person making such payment or distribution, delivered to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Debt and other Debt 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 Fifteen.



Section 15.8. Trustee’s Relation to Senior Debt.





     (a) Each of the Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Fifteen with respect to any Senior Debt that may at any time be held
by it in its individual or any other capacity to the same extent as any other holder of
Senior Debt and nothing in this Indenture shall deprive the Trustee or any Paying Agent of
any of its rights as such holder.




     (b) With respect to the holders of Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this
Article Fifteen, and no implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to
any such holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property or securities
to which any holders of Senior Debt shall be entitled by virtue of this Article Fifteen or
otherwise.



Section 15.9. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of
Senior Debt.




     No right of any present or future holders of any Senior Debt to enforce subordination as
provided in this Article Fifteen will at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms of this Indenture, regardless of
any knowledge thereof



71









 







that any such holder may have or otherwise be charged with. The provisions of this Article
Fifteen are intended to be for the benefit of, and shall be enforceable directly by, the holders of
Senior Debt.



Section 15.10. Holders Authorize Trustee to Effectuate Subordination of Securities.




     Each Holder by his acceptance of any Securities authorizes and expressly directs the Trustee
on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fifteen, and appoints the Trustee his attorney-in-fact for
such purposes, including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or otherwise) tending
towards liquidation of the property and assets of the Company, the filing of a claim for the unpaid
balance of its Securities in the form required in those proceedings. If the Trustee does not file a
proper claim or proof of indebtedness in the form required in such proceeding at least 30 days
before the expiration of the time to file such claim or proof, each holder of Senior Debt is hereby
authorized to file an appropriate claim for and on behalf of the Holders.



Section 15.11. Not to Prevent Events of Default.




     The failure to make a payment on account of principal of or premium, if any, or interest on
the Securities by reason of any provision of this Article Fifteen will not be construed as
preventing the occurrence of an Event of Default.



Section 15.12. Trustee’s Compensation Not Prejudiced.




     Nothing in this Article Fifteen will apply to amounts due to the Trustee pursuant to other
sections of this Indenture, including Section 6.7.



Section 15.13. No Waiver of Subordination Provisions.




     Without in any way limiting the generality of Section 15.9, the holders of Senior Debt may, at
any time and from time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Fifteen or the obligations hereunder of the Holders to the
holders of Senior Debt, do any one or more of the following: (a) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (c) release any Person liable in any manner for the collection of Senior Debt; and (d)
exercise or refrain from exercising any rights against the Company and any other Person.



Section 15.14. Payments May Be Paid Prior to Dissolution.




     Nothing contained in this Article Fifteen or elsewhere in this Indenture shall prevent (a) the
Company, except under the conditions described in Section 15.2 or Section 15.3, from making
payments of principal of and premium, if any, and interest on the Securities, or from depositing
with the Trustee any money for such payments, or (b) the application by the Trustee of any money
deposited with it for the purpose of making such payments of principal of and premium, if any, and
interest on the Securities to the holders entitled thereto unless, at least two Business Days prior
to the date upon which such payment becomes due and payable, the Trustee shall have received the
written notice provided for in Section 15.2(b) of this Indenture (or there shall have been an
acceleration of the Securities prior to such



72









 







application) or in Section 15.6 of this Indenture. The
Company shall give prompt written notice to the Trustee of any dissolution, winding up, liquidation
or reorganization of the Company.



Section 15.15. 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 Four by the Trustee for the payment of
principal of and premium, if any, and interest on the Securities shall not be subordinated to the
prior payment of any Senior Debt (provided that, at the time deposited, such deposit did not
violate any then outstanding Senior Debt), and none of the Holders shall be obligated to pay over
any such amount to any holder of Senior Debt.



ARTICLE SIXTEEN

SUBORDINATION OF SECURITIES GUARANTEES




Section 16.1. Securities Guarantees Subordinated to Guarantor Senior Debt.




     Each Guarantor and the Trustee each covenants and agrees, and each Holder, by its acceptance
of a Securities Guarantee, likewise covenants and agrees, that all Securities Guarantees shall be
issued subject to the provisions of this Article Sixteen; and each Person holding any Security,
whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees
that the payment of all obligations on each and all of the Securities Guarantees shall, to the
extent and in the manner set forth in this Article Sixteen, be subordinated in right of payment to
the prior payment in full, in cash or cash equivalents, of all existing and future Guarantor Senior
Debt of such Guarantor.



Section 16.2. No Payment on Securities Guarantees in Certain Circumstances.





     (a) No direct or indirect payment by or on behalf of any Guarantor of any obligations
on each and all of the Securities Guarantees (other than with the money, securities or
proceeds held under any defeasance trust established in accordance with this Indenture),
whether pursuant to the terms of the Securities Guarantees or upon acceleration or
otherwise, shall be made if, at the time of such payment, there exists a default in the
payment of all or any portion of the obligations on any Designated Guarantor Senior Debt of
such Guarantor and such default shall not have been cured or waived or the benefits of this
sentence waived by or on behalf of the holders of such Guarantor Senior Debt.




     (b) During the continuance of any other event of default with respect to any Designated
Guarantor Senior Debt pursuant to which the maturity thereof may be accelerated, upon
receipt by the Trustee of written notice from the trustee or other representative for the
holders of such Designated Guarantor Senior Debt (or the holders of at least a majority in
principal amount of such Designated Guarantor Senior Debt then outstanding), no payment of
any obligations on each and all of the Securities Guarantees (other than with the money,
securities or proceeds held under any defeasance trust established in accordance with this
Indenture) may be made by or on behalf of any Guarantor upon or in respect of the Securities
Guarantees for a period (a “Securities Guarantee Payment Blockage Period”) commencing on the
date of receipt of such notice and ending 179 days thereafter (unless, in each case, such
Securities Guarantee Payment Blockage Period has been terminated by written notice to the
Trustee from such trustee of, or other representatives for, such holders or by payment in
full in cash or cash equivalents of such Designated Guarantor Senior Debt or such event of
default has been cured or waived). Not more than one Securities Guarantee Payment Blockage
Period may be commenced with respect to the Securities Guarantees during any period of 360
consecutive days. Notwithstanding



73









 







anything in this Indenture to the contrary, there must be
180 consecutive days in any 360-day period in which no Securities Guarantee Payment Blockage
Period is in effect. No event of default that existed or was continuing (it being
acknowledged that any subsequent action that would give rise to an event of default pursuant
to any provision under which an event of default previously existed or was continuing shall
constitute a new event of default for this purpose) on the date of the commencement of any
Securities Guarantee Payment Blockage Period with respect to the Designated Guarantor Senior
Debt initiating such Securities Guarantee Payment Blockage Period shall be, or shall be
made, the basis for the commencement of a second Securities Guarantee Payment Blockage
Period by the trustee or other representative for the holders of such Designated Guarantor
Senior Debt, whether or not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 90 consecutive days.




     (c) In the event that, notwithstanding the foregoing, any payment shall be received by
the Trustee or any Holder when such payment is prohibited by clause (a) or (b) above, the
Trustee shall promptly notify the holders of Guarantor Senior Debt of such prohibited
payment and such payment shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Guarantor Senior Debt or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any of such Guarantor
Senior Debt may have been issued, as their respective interests may appear, but only to the
extent that, upon notice from the Trustee to the holders of Guarantor Senior Debt that such
prohibited payment has been made, the holders of the Guarantor Senior Debt (or their
representative or representatives of a trustee) within 30 days of receipt of such notice
from the Trustee notify the Trustee of the amounts then due and owing on the Guarantor
Senior Debt, if any, and only the amounts specified in such notice to the Trustee shall be
paid to the holders of Guarantor Senior Debt and any excess above such amounts due and owing
on Guarantor Senior Debt shall be paid to such Guarantor.



Section 16.3. Payment over of Proceeds upon Dissolution, Etc.





     (a) Upon any payment or distribution of assets or securities of a Guarantor of any kind
or character, whether in cash, property or securities (other than with the money, securities
or proceeds held under any defeasance trust established in accordance with this Indenture),
in connection with any dissolution or winding up or total or partial liquidation or
reorganization of such Guarantor, whether voluntary or involuntary, or in bankruptcy,
insolvency, receivership or
other proceedings or other marshalling of assets for the benefit of creditors, all
amounts due or to become due upon all Guarantor Senior Debt shall first be paid in full, in
cash or cash equivalents, before the Holders or the Trustee on their behalf shall be
entitled to receive any payment by (or on behalf of) such Guarantor on account of the
Securities Guarantees, or any payment to acquire any of the Securities Guarantees for cash,
property or securities, or any distribution with respect to the Securities Guarantees of any
cash, property or securities. Before any payment may be made by, or on behalf of, any
Guarantor on any Securities Guarantee (other than with the money, securities or proceeds
held under any defeasance trust established in accordance with this Indenture), in
connection with any such dissolution, winding up, liquidation or reorganization, any payment
or distribution of assets or securities of such Guarantor of any kind or character, whether
in cash, property or securities, to which the Holders or the Trustee on their behalf would
be entitled, but for the provisions of this Article Sixteen, shall be made by such Guarantor
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person making such payment or distribution or by the Holders or the Trustee if received by
them or it, directly to the holders of Guarantor Senior Debt (pro rata to such holders on
the basis of the respective amounts of Guarantor Senior Debt held by such holders) or their
representatives or to any trustee or trustees under any indenture pursuant to which any such
Guarantor Senior Debt may have been



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issued, as their respective interests appear, to the
extent necessary to pay all such Guarantor Senior Debt in full, in cash or cash equivalents,
after giving effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Guarantor Senior Debt.




     (b) To the extent any payment of Guarantor Senior Debt (whether by or on behalf of any
Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then if such
payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee or other similar Person, the Guarantor Senior Debt or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Guarantor Senior Debt is
declared to be fraudulent or invalid or otherwise set aside under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then the obligation so
declared fraudulent or invalid or otherwise set aside (and all other amounts that would come
due with respect thereto had such obligation not been so affected) shall be deemed to be
reinstated and outstanding as Guarantor Senior Debt for all purposes hereof as if such
declaration or setting aside had not occurred.




     (c) In the event that, notwithstanding the provision in clause (a) above prohibiting
such payment or distribution, any payment or distribution of assets or securities of any
Guarantor of any kind or character, whether in cash, property or securities, shall be
received by the Trustee or any Holder at a time when such payment or distribution is
prohibited by clause (a) above and before all obligations in respect of Guarantor Senior
Debt are paid in full, in cash or cash equivalents, such payment or distribution shall be
received and held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Guarantor Senior Debt (pro rata to such holders on the basis of the respective
amounts of Guarantor Senior Debt held by such holders) or their representatives or to any
trustee or trustees under any indenture pursuant to which any such Guarantor Senior Debt may
have been issued, as their respective interests appear, for application to the payment of
all such Guarantor Senior Debt remaining unpaid in full, in cash or cash equivalents, after
giving effect to any concurrent payment, distribution or provision therefor to or for the
holders of such Guarantor Senior Debt.




     (d) For purposes of this Section 16.3, the words “cash, property or securities” shall
not be deemed to include, so long as the effect of this clause is not to cause the
Securities Guarantees to be treated in any case or proceeding or similar event described in
this Section 16.3 as part of the same class of claims as the Guarantor Senior Debt or any
class of claims pari passu with, or senior to, the Guarantor Senior Debt for any payment or
distribution, securities of any Guarantor or any other Person provided for by a plan of
reorganization or readjustment that are subordinated, at least to the extent that the
Securities Guarantees are subordinated, to the payment of all Guarantor Senior Debt then
outstanding; provided that (i) if a new Person results from such reorganization or
readjustment, such Person assumes the Guarantor Senior Debt and (ii) the rights of the
holders of the Guarantor Senior Debt are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of a Guarantor with, or the merger
of a Guarantor with or into, another Person or the liquidation or dissolution of a Guarantor
following the sale, conveyance, transfer, lease or other disposition of all or substantially
all of its property and assets to another Person without violation of the terms and
conditions provided in this Indenture shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 16.3.



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Section 16.4. Subrogation.





     (a) Upon the payment in full of all Guarantor Senior Debt in cash or cash equivalents,
the Holders shall be subrogated to the rights of the holders of Guarantor Senior Debt to
receive payments or distributions of cash, property or securities of the Guarantors made on
such Guarantor Senior Debt until all obligations arising under the Securities Guarantees
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Guarantor Senior Debt of any cash, property or
securities to which the Holders or the Trustee on their behalf would be entitled except for
the provisions of this Article Sixteen, and no payment pursuant to the provisions of this
Article Sixteen to the holders of Guarantor Senior Debt by the Holders or the Trustee on
their behalf shall, as between each Guarantor, its creditors other than holders of Guarantor
Senior Debt, and the Holders, be deemed to be a payment by such Guarantor to or on account
of the Guarantor Senior Debt. It is understood that the provisions of this Article Sixteen
are intended solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of the Guarantor Senior Debt, on the other hand.




     (b) If any payment or distribution to which the Holders would otherwise have been
entitled but for the provisions of this Article Sixteen shall have been applied, pursuant to
the provisions of this Article Sixteen, to the payment of all amounts payable under
Guarantor Senior Debt, then, and in such case, the Holders shall be entitled to receive from
the holders of such Guarantor Senior Debt any payments or distributions received by such
holders of Guarantor Senior Debt in excess of the amount required to make payment in full,
in cash or cash equivalents, of such Guarantor Senior Debt of such holders.



Section 16.5. Obligations of Guarantor Unconditional.





     (a) Nothing contained in this Article Sixteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Guarantors and the Holders, the
obligation of such Guarantors, which is absolute and unconditional, to pay to the Holders
all obligations arising under the Securities Guarantees as and when the same shall become
due and payable in
accordance with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Guarantors other than the holders of the Guarantor Senior
Debt, nor shall anything herein or therein prevent the Holders or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Sixteen of the holders of
the Guarantor Senior Debt.




     (b) Without limiting the generality of the foregoing, nothing contained in this Article
Sixteen will restrict the right of the Trustee or the Holders to take any action to declare
the Securities to be due and payable prior to their Stated Maturity pursuant to Section 5.2
of this Indenture or to pursue any rights or remedies hereunder; provided, however, that all
Guarantor Senior Debt then due and payable or thereafter declared to be due and payable
shall first be paid in full, in cash or cash equivalents, before the Holders or the Trustee
are entitled to receive any direct or indirect payment from any Guarantor on the Securities.



Section 16.6. Notice to Trustee.





     (a) Each Guarantor shall give prompt written notice to the Trustee of any fact known to
such Guarantor that would prohibit the making of any payment to or by the Trustee in respect
of the Securities Guarantees pursuant to the provisions of this Article Sixteen. The Trustee
shall not be charged with the knowledge of the existence of any default or event of default
with respect to any Guarantor Senior Debt of any Guarantor or of any other facts that would
prohibit the



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making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing at its Corporate Trust Office to that effect signed by an
Officer of such Guarantor, or by a holder of such Guarantor Senior Debt or trustee or agent
thereof; and prior to the receipt of any such written notice, the Trustee shall, subject to
Article Six, be entitled to assume that no such facts exist; provided that, if the Trustee
shall not have received the notice provided for in this Section 16.6 at least two Business
Days prior to the date upon which, by the terms of this Indenture, any monies shall become
payable for any purpose (including, without limitation, the payment of all obligations
arising under any Securities Guarantee), then, notwithstanding anything herein to the
contrary, the Trustee shall have full power and authority to receive any monies from such
Guarantor and to apply the same to the purpose for which they were received, and shall not
be affected by any notice to the contrary that may be received by it on or after such prior
date except for an acceleration of the Securities prior to such application. Nothing
contained in this Section 16.6 shall limit the right of the holders of Guarantor Senior Debt
to recover payments as contemplated by this Article Sixteen. The foregoing shall not apply
if the Paying Agent is the Company. The Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself or itself to be a holder of any
Guarantor Senior Debt (or a trustee on behalf of, or other representative of, such holder)
to establish that such notice has been given by a holder of such Guarantor Senior Debt or a
trustee or representative on behalf of any such holder.




     (b) In the event that the Trustee determines in good faith that any evidence is
required with respect to the right of any Person as a holder of Guarantor Senior Debt to
participate in any payment or distribution pursuant to this Article Sixteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Guarantor Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Sixteen and, if such evidence is not furnished to
the Trustee, the Trustee
may defer any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.



Section 16.7. Reliance on Judicial Order or Certificate of Liquidating Agent.




     Upon any payment or distribution of assets or securities referred to in this Article Sixteen,
the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person making such payment or distribution, delivered to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Guarantor Senior Debt and other Debt of a 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 Sixteen.



Section 16.8. Trustee’s Relation to Guarantor Senior Debt.





     (a) Each of the Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Sixteen with respect to any Guarantor Senior Debt that may at any time
be held by it in its individual or any other capacity to the same extent as any other holder
of Guarantor Senior Debt and nothing in this Indenture shall deprive the Trustee or any
Paying Agent of any of its rights as such holder.




     (b) With respect to the holders of Guarantor Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are specifically set
forth in



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this Article Sixteen, and no implied covenants or obligations with respect to the
holders of Guarantor Senior Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior
Debt and shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities Guarantees or to a Guarantor or
to any other person cash, property or securities to which any holders of Guarantor Senior
Debt shall be entitled by virtue of this Article Sixteen or otherwise.



Section 16.9. Subordination Rights Not Impaired by Acts or Omissions of a Guarantor or Holders of
Guarantor Senior Debt.




     No right of any present or future holders of any Guarantor Senior Debt to enforce
subordination as provided in this Article Sixteen will at any time in any way be prejudiced or
impaired by any act or failure to act on the part of a Guarantor or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by such Guarantor with the terms of this
Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be
charged with. The provisions of this Article Sixteen are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Guarantor Senior Debt.



Section 16.10. Holders Authorize Trustee to Effectuate Subordination of Securities Guarantees.




     Each Holder by his acceptance of any Securities Guarantees authorizes and expressly directs
the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Sixteen, and appoints the Trustee his attorney-in-fact for
such purposes, including, in the event of any dissolution, winding up, liquidation or
reorganization of a Guarantor (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or otherwise) tending
towards liquidation of the property and assets of such Guarantor, the filing of a claim for the
unpaid balance of its Securities Guarantees in the form required in those proceedings. If the
Trustee does not file a proper claim or proof of indebtedness in the form required in such
proceeding at least 30 days before the expiration of the time to file such claim or proof, each
holder of Guarantor Senior Debt is hereby authorized to file an appropriate claim for and on behalf
of the Holders.



Section 16.11. Not to Prevent Events of Default.




     The failure to fulfill any obligation arising under the Securities Guarantees by reason of any
provision of this Article Sixteen will not be construed as preventing the occurrence of an Event of
Default.



Section 16.12. Trustee’s Compensation Not Prejudiced.




     Nothing in this Article Sixteen will apply to amounts due to the Trustee pursuant to other
sections of this Indenture, including Section 6.7.



Section 16.13. No Waiver of Subordination Provisions.




     Without in any way limiting the generality of Section 16.9, the holders of Guarantor Senior
Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Sixteen or the obligations hereunder of the Holders to the
holders of Guarantor Senior Debt, do any one or more of the following: (a) change the manner, place
or terms of payment or



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extend the time of payment of, or renew or alter, Guarantor Senior Debt or
any instrument evidencing the same or any agreement under which Guarantor Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner for the
collection of Guarantor Senior Debt; and (d) exercise or refrain from exercising any rights against
the Company and any other Person.



Section 16.14. Payments May Be Paid Prior to Dissolution.




     Nothing contained in this Article Sixteen or elsewhere in this Indenture shall prevent (a) a
Guarantor, except under the conditions described in Section 16.2 or Section 16.3, from fulfilling
any obligation arising under the Securities Guarantees, or from depositing with the Trustee any
money for such payments, or (b) the application by the Trustee of any money deposited with it for
the purpose of fulfilling any obligation arising under the Securities Guarantees to the holders
entitled thereto unless, at least two Business Days prior to the date upon which such payment
becomes due and payable, the Trustee shall have received the written notice provided for in Section
16.2(b) of this Indenture (or there shall have been an acceleration of the Securities Guarantees
prior to such application) or in Section 16.6 of this Indenture. The Company shall give prompt
written notice to the Trustee of any dissolution, winding up, liquidation or reorganization of such
Guarantor.



* * *




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     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



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



	 	 	 	 	 	 	 
	 	 	BASIC ENERGY SERVICES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title: