exv4w1



 





Exhibit 4.1




 

 



NATIONAL OILWELL VARCO, INC.




ISSUER




61/8% SENIOR NOTES DUE 2015




INDENTURE




DATED AS OF                                  , 2008




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




TRUSTEE




 

 


 









 





CROSS-REFERENCE TABLE(1)




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	310
	(a)(1)	 	7.10
	 
	 	(a)(2)	 	7.10
	 
	 	(a)(3)	 	N.A.
	 
	 	(a)(4)	 	N.A.
	 
	 	(a)(5)	 	7.10
	 
	 	(b)	 	7.10
	 
	 	(c)	 	N.A.
	311
	(a)	 	7.11
	 
	 	(b)	 	7.11
	 
	 	(c)	 	N.A.
	312
	(a)	 	2.5
	 
	 	(b)	 	10.3
	 
	 	(c)	 	10.3
	313
	(a)	 	7.6
	 
	 	(b)(2)	 	7.6, 7.7
	 
	 	(c)	 	7.6, 10.2
	 
	 	(d)	 	7.6
	314
	(a)	 	4.5, 10.2, 10.5
	 
	 	(a)(4)	 	10.5
	 
	 	(c)(1)	 	10.4
	 
	 	(c)(2)	 	10.4
	 
	 	(c)(3)	 	N.A.
	 
	 	(e)	 	10.5
	 
	 	(f)	 	N.A.
	315
	(a)	 	1.1
	 
	 	(b)	 	7.5, 10.2
	 
	 	(c)	 	7.1
	 
	 	(d)	 	7.1
	 
	 	(e)	 	6.11
	316
	(a)(last sentence)	 	2.9
	 
	 	(a)(1)(A)	 	6.5
	 
	 	(a)(1)(B)	 	6.4
	 
	 	(a)(2)	 	N.A.
	 
	 	(b)	 	6.7
	 
	 	(c)	 	2.12
	317
	(a)(1)	 	6.8
	 
	 	(a)(2)	 	6.9
	 
	 	(b)	 	2.4
	318
	(a)	 	10.1
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	10.1






N.A. means not applicable.



 




			
	(1)	 	This Cross-Reference Table is not part of this Indenture.




i 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 1.1
	 	DEFINITIONS	 	 	1	 
	SECTION 1.2
	 	OTHER DEFINITIONS	 	 	7	 
	SECTION 1.3
	 	INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT	 	 	7	 
	SECTION 1.4
	 	RULES OF CONSTRUCTION	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE 2 THE NOTES	 	 	8	 
	 
	 	 	 	 	 	 
	SECTION 2.1
	 	FORM AND DATING	 	 	8	 
	SECTION 2.2
	 	EXECUTION AND AUTHENTICATION	 	 	9	 
	SECTION 2.3
	 	REGISTRAR AND PAYING AGENT	 	 	9	 
	SECTION 2.4
	 	PAYING AGENT TO HOLD MONEY IN TRUST	 	 	10	 
	SECTION 2.5
	 	HOLDER LISTS	 	 	10	 
	SECTION 2.6
	 	TRANSFER AND EXCHANGE	 	 	10	 
	SECTION 2.7
	 	REPLACEMENT NOTES	 	 	15	 
	SECTION 2.8
	 	OUTSTANDING NOTES	 	 	15	 
	SECTION 2.9
	 	TREASURY NOTES	 	 	16	 
	SECTION 2.10
	 	TEMPORARY NOTES	 	 	16	 
	SECTION 2.11
	 	CANCELLATION	 	 	16	 
	SECTION 2.12
	 	DEFAULTED INTEREST	 	 	16	 
	SECTION 2.13
	 	CUSIP NUMBERS	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE 3 REDEMPTION AND PREPAYMENT	 	 	17	 
	 
	 	 	 	 	 	 
	SECTION 3.1
	 	NOTICES TO TRUSTEE	 	 	17	 
	SECTION 3.2
	 	SELECTION OF NOTES TO BE REDEEMED	 	 	17	 
	SECTION 3.3
	 	NOTICE OF REDEMPTION	 	 	18	 
	SECTION 3.4
	 	EFFECT OF NOTICE OF REDEMPTION	 	 	18	 
	SECTION 3.5
	 	DEPOSIT OF REDEMPTION PRICE	 	 	19	 
	SECTION 3.6
	 	NOTES REDEEMED IN PART	 	 	19	 
	SECTION 3.7
	 	OPTIONAL REDEMPTION	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE 4 COVENANTS	 	 	20	 
	 
	 	 	 	 	 	 
	SECTION 4.1
	 	PAYMENT OF NOTES	 	 	20	 
	SECTION 4.2
	 	MAINTENANCE OF OFFICE OR AGENCY	 	 	20	 
	SECTION 4.3
	 	STATEMENT BY OFFICERS AS TO DEFAULT	 	 	20	 
	SECTION 4.4
	 	CORPORATE EXISTENCE	 	 	21	 
	SECTION 4.5
	 	SEC REPORTS; FINANCIAL STATEMENTS	 	 	21	 
	SECTION 4.6
	 	LIMITATION ON LIENS	 	 	21	 
	SECTION 4.7
	 	LIMITATION ON SALE AND LEASEBACK TRANSACTIONS	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE 5 SUCCESSORS	 	 	23	 
	 
	 	 	 	 	 	 
	SECTION 5.1
	 	CONSOLIDATION, MERGER, OR SALE OF ASSETS	 	 	23	 
	SECTION 5.2
	 	SUCCESSOR ENTITY SUBSTITUTED	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES	 	 	23	 






ii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 6.1
	 	EVENTS OF DEFAULT	 	 	23	 
	SECTION 6.2
	 	ACCELERATION	 	 	24	 
	SECTION 6.3
	 	OTHER REMEDIES	 	 	25	 
	SECTION 6.4
	 	WAIVER OF PAST DEFAULTS	 	 	25	 
	SECTION 6.5
	 	CONTROL BY MAJORITY	 	 	25	 
	SECTION 6.6
	 	LIMITATION ON SUITS	 	 	25	 
	SECTION 6.7
	 	RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT AND INSTITUTE PROCEEDINGS	 	 	26	 
	SECTION 6.8
	 	COLLECTION SUIT BY TRUSTEE	 	 	26	 
	SECTION 6.9
	 	TRUSTEE MAY FILE PROOFS OF CLAIM	 	 	26	 
	SECTION 6.10
	 	PRIORITIES	 	 	27	 
	SECTION 6.11
	 	UNDERTAKING FOR COSTS	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE 7 TRUSTEE	 	 	28	 
	 
	 	 	 	 	 	 
	SECTION 7.1
	 	DUTIES OF TRUSTEE	 	 	28	 
	SECTION 7.2
	 	RIGHTS OF TRUSTEE	 	 	29	 
	SECTION 7.3
	 	INDIVIDUAL RIGHTS OF TRUSTEE	 	 	30	 
	SECTION 7.4
	 	TRUSTEE’S DISCLAIMER	 	 	30	 
	SECTION 7.5
	 	NOTICE OF DEFAULTS	 	 	30	 
	SECTION 7.6
	 	REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES	 	 	30	 
	SECTION 7.7
	 	COMPENSATION AND INDEMNITY	 	 	31	 
	SECTION 7.8
	 	REPLACEMENT OF TRUSTEE	 	 	31	 
	SECTION 7.9
	 	SUCCESSOR TRUSTEE BY MERGER, ETC.	 	 	32	 
	SECTION 7.10
	 	ELIGIBILITY; DISQUALIFICATION	 	 	33	 
	SECTION 7.11
	 	PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE 8 SATISFACTION AND DISCHARGE; DEFEASANCE	 	 	33	 
	 
	 	 	 	 	 	 
	SECTION 8.1
	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	 	33	 
	SECTION 8.2
	 	APPLICATION OF TRUST MONEY	 	 	34	 
	SECTION 8.3
	 	OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE	 	 	34	 
	SECTION 8.4
	 	DEFEASANCE AND DISCHARGE	 	 	34	 
	SECTION 8.5
	 	COVENANT DEFEASANCE	 	 	35	 
	SECTION 8.6
	 	CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE	 	 	35	 
	SECTION 8.7
	 	DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS	 	 	37	 
	SECTION 8.8
	 	REPAYMENT TO COMPANY	 	 	37	 
	SECTION 8.9
	 	REINSTATEMENT	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER	 	 	38	 
	 
	 	 	 	 	 	 
	SECTION 9.1
	 	WITHOUT CONSENT OF HOLDERS OF NOTES	 	 	38	 
	SECTION 9.2
	 	WITH CONSENT OF HOLDERS OF NOTES	 	 	39	 
	SECTION 9.3
	 	COMPLIANCE WITH TRUST INDENTURE ACT	 	 	40	 
	SECTION 9.4
	 	REVOCATION AND EFFECT OF CONSENTS	 	 	40	 
	SECTION 9.5
	 	NOTATION ON OR EXCHANGE OF NOTES	 	 	40	 
	SECTION 9.6
	 	TRUSTEE TO SIGN AMENDMENTS, ETC.	 	 	41	 
	SECTION 9.7
	 	RECORD DATES	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE 10 MISCELLANEOUS	 	 	41	 
	 
	 	 	 	 	 	 
	SECTION 10.1
	 	TRUST INDENTURE ACT CONTROLS	 	 	41	 






iii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 10.2
	 	NOTICES	 	 	41	 
	SECTION 10.3
	 	COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES	 	 	42	 
	SECTION 10.4
	 	CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT	 	 	42	 
	SECTION 10.5
	 	STATEMENTS REQUIRED IN CERTIFICATE OR OPINION	 	 	43	 
	SECTION 10.6
	 	RULES BY TRUSTEE AND AGENTS	 	 	43	 
	SECTION 10.7
	 	NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS	 	 	43	 
	SECTION 10.8
	 	GOVERNING LAW	 	 	43	 
	SECTION 10.9
	 	NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS	 	 	44	 
	SECTION 10.10
	 	SUCCESSORS	 	 	44	 
	SECTION 10.11
	 	SEVERABILITY	 	 	44	 
	SECTION 10.12
	 	COUNTERPART ORIGINALS	 	 	44	 
	SECTION 10.13
	 	TABLE OF CONTENTS, HEADINGS, ETC.	 	 	44	 







iv 











 





     INDENTURE dated as of                                         , 2008 between National Oilwell Varco, Inc., a Delaware
corporation (the “Company”), and The Bank of New York Trust Company, N.A., a national banking
association, as trustee (the “Trustee”).



RECITALS OF THE COMPANY




     The Company has duly authorized the creation of the Notes (as hereinafter defined),
substantially of the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.



     All things necessary to make the Notes, when issued by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to
make this Indenture a valid agreement of the Company, in accordance with the terms of the Notes and
this Indenture, respectively, have been done.



     This Indenture is subject to the provisions of the TIA (as hereinafter defined) that are
required to be a part of this Indenture and shall, to the extent applicable, be governed by such
provisions.



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION 1.1 DEFINITIONS




     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control.



     “Agent” means any Registrar, Paying Agent or co-registrar.



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.



     “Bankruptcy Code” means Title 11, U.S. Code, as amended, or any similar federal or state law
for the relief of debtors.



 









 





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



     “Business Day” means any day other than a Legal Holiday.



     “Capital Stock” means (1) in the case of a corporation, corporate stock; (2) in the case of an
association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited); and (4) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.



     “Clearstream” means Clearstream Banking, formerly known as Cedel Bank.



     “Consolidated Net Tangible Assets” means the aggregate amount of assets included on a
consolidated balance sheet of the Company, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities (other than liabilities that, by
their terms, are extendible or renewable at the option of the obligor to a date 12 months or more
after the date on which such current liabilities are determined) and (b) all goodwill, trade names,
trademarks, patents, copyrights, unamortized debt discount and expense and other like intangibles,
all in accordance with generally accepted accounting principles consistently applied.



     “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 10.2 hereof or such other address as to which the Trustee may give notice to the Company.



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



     “Default” means any event that is or with the passage of time or the giving of notice (or
both) would be an Event of Default.



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.6 hereof, in the form of Exhibit A hereto except that such Note
shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in
the Global Note” attached thereto.



     “Depositary” means, with respect to the Global Notes issued, the Person specified in Section
2.3 hereof as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the applicable provision of
this Indenture.



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event (other than upon an
optional redemption by the Company), matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in
whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature.



2









 





     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Equity Offering” means any public or private sale of the Company’s Equity Interests (other
than Disqualified Stock).



     “Euroclear” means Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear system.



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



     “Global Note Legend” means the legend set forth in Section 2.6(f) hereof, which is required to
be placed on all Global Notes issued under this Indenture.



     “Global Notes” means each of the Global Notes, in the form of Exhibit A hereto issued in
accordance with Section 2.1 or 2.6(d)(ii) hereof.



     “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America for the payment of which guarantees or obligations the full faith and credit of
the United States is pledged.



     “Guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof or pledging
assets to secure), of all or any part of any indebtedness.



     “Holder” means a Person in whose name a Note is registered.



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



     “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.



     “Interest Payment Date” shall have the meaning assigned to it in the Notes as contemplated by
Section 2.1 hereof.



     “Issue Date” means the date on which Notes are first authenticated and delivered under this
Indenture.



     “Legal Holiday” a Saturday, a Sunday or a day on which banking institutions in the City of New
York or at a place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.



     “Lien” means, with respect to any property or asset, any mortgage, pledge, lien, encumbrance,
charge or security interest of any kind in respect of such property or asset, whether



3









 




or not filed, recorded or otherwise perfected under applicable law, but excluding agreements
to refrain from granting Liens.




     “Note Custodian” means the Trustee, as custodian with respect to the Global Notes, or any
successor entity thereto.



     “Notes” means the 61/8% Notes due 2015 of the Company.



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any
Vice-President of such Person.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, that meets the requirements of Section 10.5
hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 10.5 hereof. The counsel may be an employee of or
counsel to the Company or any Subsidiary of the Company.



     “Participant” means, with respect to DTC, Euroclear or Clearstream, a Person who has an
account with DTC, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include
Euroclear and Clearstream).



     “Permitted Liens” means:




     (a) any Lien on any property hereafter acquired (including acquisition through merger
or consolidation) or constructed by the Company or a Restricted Subsidiary and created
contemporaneously with, or within twelve months after, such acquisition or the completion of
construction to secure or provide for the payment of all or any part of the purchase price
of such property or the cost of construction thereof, as the case may be; or




     (b) statutory liens or landlords’, carriers’, warehouseman’s, mechanics’, suppliers’,
materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business
and with respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings; or




     (c) Liens existing on property at the time of acquisition by the Company or a
Restricted Subsidiary; or




     (d) Liens existing on the property or on the outstanding shares or indebtedness of any
Person at the time it becomes a Restricted Subsidiary; or




     (e) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Company or a Restricted Subsidiary; or



4









 






     (f) Liens on property of the Company or a Restricted Subsidiary in favor of the United
States of America or any State thereof or any foreign government, or any department, agency
or instrumentality or political subdivision of any thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute; or




     (g) Liens existing on property owned by the Company or any of its Subsidiaries on the
date of this Indenture or provided for pursuant to agreements existing on the date of the
Indenture; or




     (h) Liens created pursuant to the creation of trusts or other arrangements funded
solely with cash, cash equivalents or other marketable investments or securities of the type
customarily subject to such arrangements in customary financial practice with respect to
long-term or medium-term indebtedness for money borrowed, the sole purpose of which is to
make provisions for the retirement or defeasance, without prepayment of indebtedness; or




     (i) any extensions, renewals or replacements (or successive extensions, renewals or
replacements) in whole or in part of a Lien referred to in the foregoing clauses (a) through
(h) above; provided, however, that the principal amount of Secured Debt secured thereby
shall not exceed the principal amount outstanding at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be limited to the
property which secured the Lien so extended, renewed or replaced and additions to such
property.



     “Person” means (a) any form of business entity, association, grouping, trust or other form now
or hereafter permitted by the laws of any state of the United States of America or any foreign
government or utilized by businesses in the conduct of their activities and (b) a natural person,
as the context may require.



     “Principal Property” means any real property, manufacturing plant, office building, warehouse
or other physical facility, or any other like depreciable asset of the Company or of any Restricted
Subsidiary, whether owned at the date of this Indenture or thereafter acquired that in the opinion
of the Board of Directors of the Company is of material importance to the total business conducted
by the Company and its Restricted Subsidiaries, as a whole; provided, however, that any such
property shall not be deemed a Principal Property if such property does not have a fair value in
excess of 5% of the total assets included on a consolidated balance sheet of the Company and its
Restricted Subsidiaries prepared in accordance with generally accepted accounting principles
consistently applied.



     “Responsible Officer,” when used with respect to the Trustee, means any officer, including,
without limitation, any vice president, assistant vice president, assistant treasurer or assistant
secretary within the corporate trust department 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 any particular
corporate trust matter, any other officer or employee to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.



5









 





     “Restricted Subsidiary” means (a) any currently existing Subsidiary whose principal assets and
business are located in the United States or Canada, and (b) any Subsidiary that is designated by
the Company to be a Restricted Subsidiary.



     “Sale and Leaseback Transaction” means the sale or transfer by the Company or a Restricted
Subsidiary of any Principal Property owned by it with the intention of taking back a lease on such
property.



     “SEC” means the Securities and Exchange Commission.



     “Secured Debt” means indebtedness for money borrowed by the Company or a Restricted
Subsidiary, and any other indebtedness of the Company or a Restricted Subsidiary, on which interest
is paid or payable (other than indebtedness owed by a Restricted Subsidiary to the Company, by a
Restricted Subsidiary to another Restricted Subsidiary or by the Company to a Restricted
Subsidiary), that in any such case is secured by (a) any Lien on any Principal Property of the
Company or a Restricted Subsidiary or (b) a Lien on any shares of stock or indebtedness of a
Restricted Subsidiary that owns a Principal Property. The amount of Secured Debt at any time
outstanding shall be the amount then owing thereon by the Company or a Restricted Subsidiary.



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



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of indebtedness, including the Notes, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation governing such indebtedness, and
shall not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.



     “Subsidiary” means, with respect to any Person, (a) any corporation of which the Company, or
the Company and one or more Subsidiaries, or any one or more Subsidiaries, directly or indirectly
own voting securities entitling any one or more of the Company and its Subsidiaries to elect a
majority of the directors, either at all times, or so long as there is no default or contingency
which permits the holders of any other class or classes of securities to vote for the election of
one or more directors, (b) any partnership of which the Company, or the Company and one or more of
its Subsidiaries, or any one or more Subsidiaries, is at the date of determination, a general or
limited partner of such partnership, but only if the Company and its Subsidiaries are entitled to
receive more than 50% of the assets of such partnership upon dissolution or more than 50% of the
profits of such partnership, or (c) any other Person (other than a corporation or partnership) in
which the Company, or the Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly, at the date of determination thereof, has (x) at least a majority ownership
interest or (y) the power to elect or direct the election of a majority of the directors or other
governing body of such Person.



6









 





     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date on which this Indenture is executed, except as provided in Section 9.3 hereof.



     “Trustee” means the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.



SECTION 1.2 OTHER DEFINITIONS




	 	 	 	 	 
	TERM	 	DEFINED IN SECTION
	“Authentication Order”

	 	 	2.2	 
	“Company”

	 	Preamble

	“Covenant Defeasance”

	 	 	8.5	 
	“Defeasance”

	 	 	8.4	 
	“DTC”

	 	 	2.3	 
	“Event of Default”

	 	 	6.1	 
	“Paying Agent”

	 	 	2.3	 
	“Registrar”

	 	 	2.3	 
	“Trustee”

	 	Preamble







SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT




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



     “indenture securities” means the Notes; and



     “obligor” on the Notes means the Company and any successor obligor upon the Notes.



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



SECTION 1.4 RULES OF CONSTRUCTION




     Unless the context otherwise requires:




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




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants, the statements and pronouncements of the Financial Accounting Standards
Board and such other statements by such other entities as have been approved by a
significant segment of the accounting profession, which are applicable at the date of
determination;



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     (3) “or” is not exclusive;




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




     (5) provisions apply to successive events and transactions; and




     (6) references to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.



ARTICLE 2

THE NOTES




SECTION 2.1 FORM AND DATING




     The Notes and the Trustee’s certificate of authentication shall be substantially in the form
of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be
in denominations of $1,000 and integral multiples thereof.



     The Notes will mature on August 15, 2015, and each Note will bear interest from February 15,
2008 (which date shall be set forth in the certificate representing such Note) at the rate per
annum of 61/8%, which interest shall be payable semiannually on each February 15 and August 15
following the date of initial issuance of such Note, commencing on the first February 15 or August
15 next following the date of initial issuance of such Note (which date shall be set forth in the
certificate representing such Note), to the Person in whose name the certificate representing such
Note is registered at the close of business on the preceding February 1 or August 1 (whether or not
a Business Day), as the case may be. The Notes will be subject to redemption prior to maturity
pursuant to Article III of this Indenture.



     The Notes are senior unsecured obligations of the Company and rank pari passu in right of
payment with all other unsecured and unsubordinated indebtedness of the Company.



     The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global Note Legend and the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend and without the “Schedule of Exchanges of Interests in the Global Note” attached
thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of outstanding



8









 




Notes represented thereby shall be made by the Trustee, the Depositary or the Note Custodian,
at the direction of the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.6 hereof.




SECTION 2.2 EXECUTION AND AUTHENTICATION




     An Officer (who shall be the Chief Executive Officer, the Chief Financial Officer or the
Treasurer) shall sign the Notes for the Company by manual or facsimile signature.



     If the Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.



     A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.



     The Trustee shall, upon a written order of the Company signed by an Officer (an
“Authentication Order”), authenticate and make available for delivery Notes for original issue on
the date hereof up to an aggregate principal amount of $174,585,000 (and any Notes subsequently
issued by reopening the series of Notes as described below). The aggregate principal amount of
Notes which may be authenticated and delivered under this Indenture is initially limited to
$174,585,000, except for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 2.6, 2.7, 2.10, or 9.5; provided,
however, that the Company may, so long as no Event of Default has occurred and is continuing,
reopen the series of Notes represented by the 61/8% Notes due 2015 to issue additional Notes for such
series, which shall form a single series with the Notes and shall have the same terms, without the
consent of the Holders. All Notes issued by reopening the series of Notes as provided in the
previous sentence shall be identical in all respects to the Notes issued on the date hereof, other
than the Issue Date, the date from which interest accrues and any changes relating thereto.
Notwithstanding the provisions of Section 2.6 permitting the issuance of Definitive Notes, the
Notes issued on the date hereof in the aggregate principal amount of up to $174,585,000 will be
issued in the form of Global Notes only and no Holder shall have the right to receive such a Note
in the form of a Definitive Note unless Definitive Notes are issued as required in Section 2.6(a).



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.



SECTION 2.3 REGISTRAR AND PAYING AGENT




     The Company shall maintain an office or agency within the City and State of New York where
Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or
agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent. The



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Company may change any Paying Agent or Registrar without notice to any Holder. The Company
shall promptly notify the Trustee in writing of the name and address of any Agent not a party to
this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.




     The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Note Custodian with respect to the Global Notes.



SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST




     The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, or interest or premium, if any, on, the Notes, and
will notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to
the Company, the Trustee shall serve as Paying Agent for the Notes.



SECTION 2.5 HOLDER LISTS




     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall provide to a Responsible
Officer of the Trustee at least seven Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company
shall otherwise comply with TIA Section 312(a).



SECTION 2.6 TRANSFER AND EXCHANGE





     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor Depositary.
All Global Notes will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or unable to
continue to act as Depositary for the Global Notes or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of



10









 






such notice from the Depositary or (ii) the Company in its sole discretion notifies the
Trustee in writing that it elects to cause issuance of the Notes in certificated form. Upon
the occurrence of either of the preceding events in (i) or (ii) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.11
hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to Section 2.7 or 2.11 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged
for another Note other than as provided in this Section 2.6(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.6(b),
(c) or (f) hereof.




     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the
Depositary, in accordance with the provisions of this Indenture and the Applicable
Procedures. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more
of the other following subparagraphs as applicable:




     (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial
interests in any Global Note may be transferred only to Persons who take delivery
thereof in the form of a beneficial interest in a Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.6(b)(i).




     (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes.
In connection with all transfers and exchanges of beneficial interests (other than a
transfer of a beneficial interest in a Global Note to a Person who takes delivery
thereof in the form of a beneficial interest in the same Global Note), the
transferor of such beneficial interest must deliver to the Registrar (A) (1) a
written order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount equal
to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above; provided
that (x) no transfer or exchange of a beneficial interest in a Global Note for a
Definitive Note shall be effective under clause (B) hereof unless permitted by
Applicable Procedures of the Depositary, and (y) beneficial interests in a Global
Note may be exchanged for Definitive Notes only upon at least 20 days prior written
notice given to the Trustee by or on behalf of



11









 






the Depositary in accordance with Applicable Procedures. Upon satisfaction of
all of the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.6(g) hereof.




(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




     If any holder of a beneficial interest in a Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the conditions set forth in Section 2.6(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note
to be reduced accordingly pursuant to Section 2.6(g) hereof, and the Company shall
execute and the Trustee shall authenticate and make available for delivery to the
Person designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.6(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall make available for delivery such
Definitive Notes to the Persons in whose names such Notes are so registered.




(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




     (i) A Holder of a Definitive Note may exchange such Note for a beneficial
interest in a Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Global Notes.




     (ii) If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraph (i) above at a time when a Global Note
has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.2 hereof, the Trustee shall
authenticate one or more Global Notes in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph (i)
above.




     (e) Transfer of Definitive Notes for Definitive Notes. A Holder of Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note.
Upon receipt of a request for such a transfer, the Registrar shall register the Definitive
Notes pursuant to the instructions from the Holder thereof. Prior to such registration of
transfer, the requesting Holder shall present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in



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form satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing.




     (f) Global Note Legend. Each Global Note shall bear a legend in substantially the
following form:




“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
ARTICLE 2 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.”



     Additionally, for so long as DTC is the Depositary with respect to the Global Note, such
Global Note shall also bear a legend in substantially the following form:




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




     (g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in a particular Global Note have been exchanged for Definitive Notes or a
particular Global Note has been redeemed, repurchased or canceled in whole and not in part,
each such Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note, by the Trustee,
the Note Custodian or the Depositary at the direction of the Trustee, to reflect



13









 






such reduction; and if the beneficial interest is being exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note, by the Trustee, the Note Custodian or by the Depositary at the
direction of the Trustee, to reflect such increase.




(h) General Provisions Relating to Transfers and Exchanges.




     (i) To permit registrations of transfers and exchanges in accordance with the
other provisions of this Indenture, the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon the Company’s order or at the
Registrar’s request.




     (ii) No service charge shall be made to a holder of a beneficial interest in a
Global Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith (other
than any such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6 and 9.5 hereof).




     (iii) The Registrar shall not be required to register the transfer or exchange
of any Note selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.




     (iv) All Global Notes and Definitive Notes issued upon any registration of
transfer or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes surrendered
upon such registration of transfer or exchange.




     (v) The Company shall not be required (A) to issue, to register the transfer of
or to exchange Notes during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Notes for redemption under
Section 3.3 hereof and ending at the close of business on the day of such mailing,
(B) to register the transfer of or to exchange any Note so selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a record date
and the next succeeding Interest Payment Date.




     (vi) Prior to due presentment for the registration of a transfer of any Note,
the Trustee, any Agent and the Company may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all other
purposes, and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.




     (vii) The Trustee shall authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.2 hereof.



14









 






     (viii) All certifications and certificates required to be submitted to the
Registrar pursuant to this Section 2.6 to effect a transfer or exchange may be
submitted by facsimile.




     (ix) Each Holder of a Note agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment of
such Holder’s Note in violation of any provision of this Indenture and/or applicable
United States federal or state securities law.




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



SECTION 2.7 REPLACEMENT NOTES




     If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon the written order of the Company signed by two Officers of the Company, shall
authenticate a replacement Note if the Trustee’s requirements are met. An indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect
the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.



     Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.



SECTION 2.8 OUTSTANDING NOTES




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in Section 2.9 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note.



     If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.



     If the principal amount of any Note is considered paid under Section 4.1 hereof, it ceases to
be outstanding and interest on it ceases to accrue. If the Paying Agent (other than the



15









 




Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date, then on and after that date such Notes
shall be deemed to be no longer outstanding and shall cease to accrue interest.




SECTION 2.9 TREASURY NOTES




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, shall be considered as though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.



SECTION 2.10 TEMPORARY NOTES




     Until Definitive Notes are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes upon a written order of the Company signed by two Officers of the
Company. Temporary Notes shall be substantially in the form of Definitive Notes but may have
variations that the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Notes in exchange for temporary Note. Holders of temporary Notes
shall be entitled to all of the benefits of this Indenture.



SECTION 2.11 CANCELLATION




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall return such
canceled Notes to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.



SECTION 2.12 DEFAULTED INTEREST




     If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.1 hereof. The Company shall promptly notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.




16












 





SECTION 2.13 CUSIP NUMBERS




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



ARTICLE 3

REDEMPTION AND PREPAYMENT




SECTION 3.1 NOTICES TO TRUSTEE




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.7 hereof, it shall furnish to the Trustee, at least 45 days (unless a shorter period
shall be agreed to by the Trustee in writing) but not more than 75 days before a redemption date
(but in any event prior to the notice provided pursuant to Section 3.3 hereof), an Officers’
Certificate setting forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.



SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED




     If less than all of the Notes are to be redeemed or purchased at any time, the Trustee shall
select the Notes to be redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate; provided, however, that if a partial redemption
is made with the proceeds of an Equity Offering, selection of the Notes or portions thereof for
redemption shall be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis
as is practicable (subject to the procedures of the Depositary), unless such method is prohibited.
Any such determination by the Trustee shall be conclusive. In the event of partial redemption by
lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.



     The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.



17









 





SECTION 3.3 NOTICE OF REDEMPTION




     Subject to the provisions of Section 3.7 hereof, at least 30 days but not more than 60 days
before an optional redemption date, the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered
address.



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




     (a) the redemption date;




     (b) the redemption price;




     (c) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;




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




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




     (f) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




     (g) the paragraph of the Notes or Section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and




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



     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee at
least 30 days (unless a shorter period shall be agreed to by the Trustee in writing) but not more
than 60 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph.



SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION




     Once notice of redemption is mailed in accordance with Section 3.3 hereof, Notes called for
redemption shall become irrevocably due and payable on the redemption date at the redemption price.
A notice of redemption may not be conditional.



     A notice of redemption shall be deemed to be given when mailed, whether or not the Holder
receives the notice. In any event, failure to give such notice, or any defect in such notice,



18









 




shall not affect the validity of the proceedings for the redemption of the Notes held by
Holders to whom such notice was properly given.




SECTION 3.5 DEPOSIT OF REDEMPTION PRICE




     On or prior to the redemption date, the Company shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and accrued and unpaid interest on all
Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to
be redeemed.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal
from the redemption date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.1
hereof.



SECTION 3.6 NOTES REDEEMED IN PART




     Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.2 with respect to such Notes, the Trustee
shall authenticate for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.



SECTION 3.7 OPTIONAL REDEMPTION





     (a) The Company may redeem any or all of the Notes at any time on or after August 15,
2010 at the redemption prices set forth in paragraph 5 of the Note attached hereto.




     (b) From time to time, on or prior to August 15, 2008, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings to redeem up to 35% of the
aggregate principal amount of the Notes issued under this Indenture at a redemption price of
106.125% of the principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the date of redemption; provided that (i) at least 65% of the original principal amount
of the Notes issued under this Indenture shall remain outstanding immediately after each
such redemption, and (ii) the Company shall make such redemption not more than 90 days after
the consummation of any such Equity Offering.




     (c) Any redemption pursuant to this Section 3.7 shall be made pursuant to the
provisions of Sections 3.1 through 3.6 hereof.



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ARTICLE 4

COVENANTS




SECTION 4.1 PAYMENT OF NOTES




     The Company shall pay or cause to be paid the principal of, premium, if any, and interest on,
the Notes on the dates and in the manner provided in the Notes and this Indenture. Principal and
interest, if any, shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City Time on the due date money
deposited by the Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.



     The Company shall pay interest on overdue principal at the rate borne on the Notes to the
extent lawful; it shall pay on overdue installments of interest (without regard to any applicable
grace period) at the same rate to the extent lawful.



SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY




     The Company shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall 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 Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall 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.



     The Company hereby designates the office of the Trustee’s Affiliate at 101 Barclay Street,
Floor 21 West, New York, New York 10286, as one such office or agency of the Company in accordance
with Section 2.3 hereof.



SECTION 4.3 STATEMENT BY OFFICERS AS TO DEFAULT




     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the
knowledge of the signers thereof a Default or Event of Default has occurred during that fiscal
year, specifying all such Defaults or Events of Defaults (as applicable) and the nature and status
thereof.



20









 





     The Company shall deliver to the Trustee, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any Event of Default or Default, an
Officers’ Certificate setting forth the details of such Event of Default or Default and the action
which the Company proposes to take with respect thereto.



SECTION 4.4 CORPORATE EXISTENCE




     Subject to Article 5, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the Company
or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.



SECTION 4.5 SEC REPORTS; FINANCIAL STATEMENTS





     (a) The Company shall file with the Trustee, within 15 days after it files the same
with the SEC, copies of the annual reports and the information, documents and other reports
(or copies of such portions of any of the foregoing) as the SEC may by rules and regulations
prescribe that the Company is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. The Company shall also comply with the provisions of TIA Section
314(a).




     (b) Delivery of such reports, information and documents to the Trustee under this
Section 4.5 is for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
under this Article IV (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).



SECTION 4.6 LIMITATION ON LIENS




     So long as any of the Notes are outstanding, the Company shall not at any time create, incur,
issue, assume or guarantee, and shall not cause, suffer or permit a Restricted Subsidiary to
create, incur, issue, assume or guarantee, any Secured Debt without making effective provision (and
the Company covenants that in such case it will make or cause to be made such effective provision)
whereby the Notes then outstanding and any other indebtedness of or guaranteed by the Company or
any Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall
be secured, by a Lien equally and ratably with any and all other obligations and indebtedness
thereby secured, so long as such other obligations and indebtedness shall be so secured; provided,
that if any such Lien securing such Secured Debt ceases to exist, such equal and ratable security
for the benefit of the Holders of Notes shall automatically cease to exist



21









 




without any further action; provided, further, that if such Secured Debt is expressly
subordinated to the Notes, the Lien securing such subordinated Secured Debt shall be subordinate
and junior to the Lien securing the Notes with the same relative priority as such Secured Debt
shall have with respect to the Notes; and provided further, that the foregoing covenants shall not
be applicable to the Secured Debt that is secured by Permitted Liens.




     Notwithstanding the foregoing provisions of this Section 4.6, the Company and its Restricted
Subsidiaries may, without equally and ratably securing the Notes, create, incur, issue, assume or
guarantee Secured Debt not otherwise permitted or excepted if the sum of (a) the amount of such
Secured Debt plus (b) the aggregate value of Sale and Leaseback Transactions (excluding Sale and
Leaseback Transactions identified in (a) through (d) of Section 4.7), does not exceed 10% of
Consolidated Net Tangible Assets (as shown in the quarterly consolidated balance sheet of the
Company most recently published prior to the date of creation, incurrence, issuance, assumption or
guarantee).



SECTION 4.7 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS




     The Company will not, nor will it permit any of its Restricted Subsidiaries to, engage in a
Sale and Leaseback Transaction, unless: (a) such Sale and Leaseback Transaction occurs within one
year from the date of completion of the acquisition of the Principal Property subject thereto or
the date of the completion of construction, development or substantial repair or improvements, or
commencement of full operations, on such Principal Property, whichever is later, (b) the Sale and
Leaseback Transaction involves a lease for a period, including renewals, of not more than three
years, (c) the Company or such Restricted Subsidiary would be entitled to incur Secured Debt
secured by a Lien on the Principal Property subject thereto in a principal amount equal to or
exceeding the net sale proceeds from such Sale and Leaseback Transaction without equally and
ratably securing the Notes pursuant to Section 4.6, or (d) the Company or such Restricted
Subsidiary, within a one-year period after the Sale and Leaseback Transaction, applies or causes to
be applied an amount not less than the net sale proceeds from such Sale and Leaseback Transaction
to (i) the redemption of the Notes or the prepayment, repayment, reduction or retirement of any
indebtedness of the Company that ranks pari passu with the Notes or (ii) the expenditure or
expenditures for Principal Property used or to be used in the ordinary course of business of the
Company or any of its Restricted Subsidiaries.



     Notwithstanding the foregoing, the Company may, and may permit each of its Restricted
Subsidiaries, to, effect any Sale and Leaseback Transaction that is not excepted by clauses (a)
through (d) (inclusive) of the above paragraph, provided that, after giving effect thereto and the
application of proceeds, if any, received by the Company or any its Restricted Subsidiaries as a
result thereof, the net sale proceeds from such Sale and Leaseback Transaction, together with the
aggregate principal amount of all Secured Debt then outstanding (other than the Notes) secured by
Liens upon Principal Property (which are not Permitted Liens) would not exceed 10% of the
Consolidated Net Tangible Assets (as shown in the quarterly consolidated balance sheet of the
Company most recently published prior to the date the Sale and Leaseback Transaction is effected).



22









 





ARTICLE 5

SUCCESSORS




SECTION 5.1 CONSOLIDATION, MERGER, OR SALE OF ASSETS




     The Company may (a) consolidate with or merge into, or (b) sell, convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to, any Person,
provided that (i) in the case of any such consolidation or merger, the Company is the continuing
entity or, if the Company is not the continuing entity, the continuing entity is a Person organized
and validly existing under the laws of the United States, any political subdivision thereof or any
State thereof and assumes by supplemental indenture all of the Company’s obligations on the Notes
and under the Indenture, and (ii) after giving effect to the transaction no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of Default, shall
exist. Upon a disposition of assets described in clause (b) of the preceding sentence, the Company
will be released from any further liability under the Notes and the Indenture.



SECTION 5.2 SUCCESSOR ENTITY SUBSTITUTED




     Upon any consolidation or merger, transfer or lease of its properties and assets substantially
as an entirety in accordance with Section 5.1 hereof, the successor entity formed by such
consolidation with, or into which the Company is merged or to which such conveyance, transfer or
lease of its properties and assets is made shall succeed to, and be substituted for (so that from
and after the date of such consolidation or merger, or conveyance transfer or lease of its property
and assets substantially as an entirety, the provisions of this Indenture referring to the
“Company” shall refer instead to the successor entity and not to the Company), 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.



ARTICLE 6

DEFAULTS AND REMEDIES




SECTION 6.1 EVENTS OF DEFAULT




     An “Event of Default” occurs hereunder with respect to the Notes if:




     (a) the Company defaults in the payment when due of principal of the Notes;




     (b) the Company defaults in payment when due of interest on the Notes and such default
continues for a period of 30 days;




     (c) the Company or any of its Restricted Subsidiaries fails to observe or perform any
covenant of the Company (other than the covenants described in clauses (a) or (b) above) in
the Notes or this Indenture for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then outstanding;




     (d) indebtedness of the Company or any Subsidiary is not paid when due within the
applicable grace period, if any, or is accelerated by the holders thereof and, in



23









 




either case, the principal amount of such unpaid or accelerated indebtedness exceeds
$20 million;





     (e) the Company or any of its Significant Subsidiaries or any group of Subsidiaries
that, when taken together, would constitute a Significant Subsidiary:




     (i) commences a voluntary case;




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




     (iii) consents to the appointment of a custodian of it or for all or
substantially all of its property; or




     (iv) makes a general assignment for the benefit of its creditors.




     (f) a court of competent jurisdiction enters an order or decree under the Bankruptcy
Code that:




     (i) is for relief against the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary, in an involuntary case;




     (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries
or any group of Subsidiaries that, when taken together, would constitute a
Significant Subsidiary, or for all or substantially all of the property of the
Company or any group of Subsidiaries that, when taken together, would constitute a
Significant Subsidiary; or




     (iii) orders the liquidation of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, when taken together, would
constitute a Significant Subsidiary.




and the order or decree remains unstayed and in effect for 60 consecutive days.



SECTION 6.2 ACCELERATION




     If any Event of Default (other than an Event of Default specified in clauses (e) or (f) of
Section 6.1) shall occur and be continuing, either the Trustee or the Holders of at least 25% of
the then outstanding Notes by notice to the Company may declare the principal amount of the Notes
to be due and payable immediately. If an Event of Default specified in clauses (e) or (f) of
Section 6.1 shall occur, the principal amount of all the then outstanding Notes will automatically,
and without any action by the Trustee or any Holder, become immediately due and payable. After any
acceleration, but before a judgment or decree for the payment of the money due has been obtained by
the Trustee, the Holders of a majority in aggregate principal amount of the then outstanding Notes,
by written notice to the Trustee, may rescind and annul such acceleration and its consequences if
all Events of Default, other than the non-payment of accelerated principal, have been cured or
waived pursuant to the terms of this Indenture.



24









 





SECTION 6.3 OTHER REMEDIES




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and accrued and unpaid interest, if any, on
the Notes or to enforce the performance of any provision of the Notes or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



SECTION 6.4 WAIVER OF PAST DEFAULTS




     The Holders of a majority in aggregate principal amount of the outstanding Notes may on behalf
of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its
consequences, except a Default:




     (a) in the payment of the principal of or any premium or interest on any Note, or




     (b) in respect of any other covenant or provision hereof which, under Section 9.2
hereof, cannot be modified or amended without the consent of the Holder of each outstanding
Note.



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



SECTION 6.5 CONTROL BY MAJORITY




     Subject to Section 7.2(f) hereof, Holders of a majority in principal amount of the then
outstanding Notes (together as a single class) may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee.



SECTION 6.6 LIMITATION ON SUITS




     A Holder of a Note may institute any proceeding with respect to this Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder with respect to this
Indenture or the Note only if:




     (a) the Holder of a Note has previously given to the Trustee written notice of a
continuing Event of Default;




     (b) the Holders of at least 25% in aggregate principal amount of the Notes make a
written request to the Trustee to institute a proceeding or pursue a remedy as Trustee;



25









 






     (c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;




     (d) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and




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



     A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.



SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT AND INSTITUTE PROCEEDINGS




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, and premium, if any, and interest on, the Note on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired, affected or limited in any way
(including by any limitation set forth in Section 6.6 hereof) without the consent of the Holder of
each Note affected thereby.



SECTION 6.8 COLLECTION SUIT BY TRUSTEE




     If an Event of Default specified in Section 6.1(a) or (b) hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, and premium, if any, and interest
remaining unpaid on, the Notes and interest on overdue principal and, to the extent lawful,
interest and 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.



SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under



26









 




Section 7.7 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting any Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.




SECTION 6.10 PRIORITIES




     If the Trustee collects any money pursuant to this Article, it shall pay out the money in the
following order:




     First: to the Trustee, its agents and attorneys for amounts due under Section 7.7
hereof, including payment of all compensation, expense, and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of the Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any and
interest, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.



SECTION 6.11 UNDERTAKING FOR COSTS




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the cost of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Note pursuant to Section 6.7 hereof, or a suit by Holders
of more than 10% in principal amount of the then outstanding Notes.



27









 





ARTICLE 7

TRUSTEE




SECTION 7.1 DUTIES OF TRUSTEE





     (a) If 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 its exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.




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




     (i) The Trustee need perform only those duties that are specifically set forth
in this Indenture and the TIA and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee. To the extent of any conflict
between the duties of the Trustee hereunder and under the TIA, the TIA shall
control.




     (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. However, 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 examine the certificates and opinions
to determine whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).




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




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




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




     (iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.5 hereof.




     (d) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this
Section.




     (e) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee shall be under no obligation to exercise



28









 







any of its rights and powers under this Indenture at the request of any Holders, unless
such Holder shall have offered and, if requested, provided to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.




     (f) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.



SECTION 7.2 RIGHTS OF TRUSTEE





     (a) The Trustee may conclusively rely upon any document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in the document.




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




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




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred upon it by
this Indenture.




     (e) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer of the
Company.




     (f) Subject to Section 7.1(b) hereof, 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 unless such Holders shall have offered and, if requested,
provided to the Trustee security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities (including fees and expenses of its agents and counsel) that might
be incurred by it in compliance with such request or direction.




     (g) The Trustee, in its individual or other capacity, may make loans to, accept
deposits from, and perform services for, the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not the Trustee, including, without
limitation, as a lender under any of the Company’s credit facilities.




     (h) The Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or



29









 







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.




     (i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder.



SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE




     The Trustee, any Paying Agent, any authenticating agent or registrar in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.



SECTION 7.4 TRUSTEE’S DISCLAIMER




     The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



SECTION 7.5 NOTICE OF DEFAULTS




     If a Default or Event of Default occurs and is continuing and if it is actually known to a
Responsible Officer of the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, or interest or premium, if any, on any Note, the
Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders of the Notes.



SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES




     Within 60 days after each March 15 beginning with the March 15 next following the date of this
Indenture, and for so long as the Notes remain outstanding, the Trustee shall mail to the Holders
of the Notes a brief report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA Section 313(c). A
copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the
Company and filed with the SEC and each stock exchange on which



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Notes are listed in accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee when the Notes are listed on any stock exchange or delisted therefrom.




SECTION 7.7 COMPENSATION AND INDEMNITY




     The Company shall pay to the Trustee from time to time such compensation for its acceptance of
this Indenture and services hereunder as the parties shall agree from time to time. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s
agents and counsel.



     The Company shall indemnify the Trustee against any and all losses, liabilities, claims,
damages or expenses incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 7.7) and defending itself against any
claim (whether asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability, claim, damage or expense may be attributable to its negligence or
bad faith. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.



     The obligations of the Company under this Section 7.7 shall survive the satisfaction and
discharge of this Indenture. To secure the Company’s payment obligations in this Section, the
Trustee shall have a Lien prior to any of the Notes on all money or property held or collected by
the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) hereof occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under the Bankruptcy Code.



     The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent
applicable.



SECTION 7.8 REPLACEMENT OF TRUSTEE




     A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.



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     The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in writing.



     The Company may remove the Trustee if:




     (a) the Trustee fails to comply with Section 7.10 hereof;




     (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under the Bankruptcy Code;




     (c) a custodian or public officer takes charge of the Trustee or its property; or




     (d) the Trustee becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.



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



     If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 7.10 hereof, such Holder of a Note may, at
the expense of the Company, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 7.7 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.



SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.



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SECTION 7.10 ELIGIBILITY; DISQUALIFICATION




     There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has, or is the subsidiary of a bank holding company that
has, a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).



SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY




     The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated therein.



ARTICLE 8

SATISFACTION AND DISCHARGE; DEFEASANCE




SECTION 8.1 SATISFACTION AND DISCHARGE OF INDENTURE




     This Indenture shall upon delivery of a written request of an Officer of the Company to the
Trustee cease to be of further effect with respect to the Notes (except as to any surviving rights
of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when




     (a) either




     (i) all such Notes theretofore authenticated and delivered (other than (1) such
Notes which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.7 and (2) such Notes for whose payment money or Government
Securities have 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 8.8) 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 final Stated Maturity within
one year,




and the Company, in the case of (A) or (B) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount of



33









 







money or Government Securities sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such deposit
(in the case of such Notes which have become due and payable) or to the Stated
Maturity of the principal of the Notes;




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




     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such Notes have been complied
with.



     Notwithstanding the satisfaction and discharge of this Indenture with respect to the Notes,
the obligations of the Company to the Trustee under Section 7.7 hereof, and, if money or Government
Securities shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Company or Trustee under Section 8.2 hereof and Section 8.9
shall survive.



SECTION 8.2 APPLICATION OF TRUST MONEY




     Subject to the provisions of Section 8.9, all money and Government Securities deposited with
the Trustee pursuant to Section 8.1 hereof shall be held in trust and applied by it, in accordance
with the provisions of the Notes 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 whose payment
such money or Government Securities has been deposited with the Trustee.



SECTION 8.3 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE




     The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.4 or 8.5 hereof be applied
to all outstanding Notes, upon compliance with the conditions set forth in this Article VIII.



SECTION 8.4 DEFEASANCE AND DISCHARGE




     In addition to discharge of the Indenture pursuant to Section 8.1 hereof, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the Notes on the date of the
deposit referred to in clause (a) of Section 8.6 hereof, and the provisions of this Indenture with
respect to the Notes shall no longer be in effect (except as to (1) the rights of Holders of such
Notes to receive, solely from the trust fund described in Section 8.6 hereof and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on such
Notes when payments are due (other than by acceleration), (2) the Company’s obligations with
respect to such Notes under Sections 2.4, 2.6, 2.7, 2.10, 4.2 and 8.9 hereof, and



34









 




(3) the rights, powers, trusts, obligations, duties and immunities of the Trustee hereunder),
and the Trustee, at the expense of the Company, upon written request of an Officer of the Company,
shall execute proper instruments acknowledging the same, if the applicable conditions set forth in
Section 8.6 hereof are satisfied (“Defeasance”). For this purpose, such Defeasance means that the
Company (and any other obligor of the Notes) shall be deemed to have paid and discharged the entire
indebtedness represented by the Notes, which shall thereafter be deemed to be “Outstanding” only
for the purposes of Section 8.7 hereof and the rights and obligations referred to in clauses (1)
through (3) (inclusive) of this Section 8.4, and to have satisfied all its other obligations under
such Notes and this Indenture insofar as such Notes are concerned. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section applied to any Notes
notwithstanding the prior exercise of its option (if any) to have Section 8.5 hereof applied to
such Notes.




SECTION 8.5 COVENANT DEFEASANCE




     The Company shall be released on the date of the deposit referred to in clause (a) of Section
8.6 hereof from its obligations under Sections 4.6, 4.7 and 5.1 hereof, inclusive, on and after the
date the applicable conditions set forth in Section 8.6 hereof are satisfied (“Covenant
Defeasance”); and the occurrence of any event specified in clause (c) of Section 6.1 hereof (with
respect to any of Sections 4.6, 4.7 and 5.1 hereof, inclusive), shall be deemed not to be or result
in an Event of Default, in each case with respect to the Notes. For this purpose, such Covenant
Defeasance means that, with respect to the Notes (i) the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such specified
Section, whether directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any Section to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or Event of Default under
Section 6.1 hereof, but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby, and (ii) such Notes shall thereafter be deemed to be not “Outstanding”
for the purposes of any request, demand, authorization, direction, notice, waiver, consent or
declaration or other action of Holders (and the consequences of any therefor) in connection with
such specified covenants, but shall continue to be deemed Outstanding for all other purposes
hereunder.



SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE




     The following shall be the applicable conditions to the application of Section 8.4 or Section
8.5 hereof to any Notes, as the case may be:




     (a) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 7.10
hereof and agrees to comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Notes, (A) money
in an amount, or (B) Government Securities which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount,
or (C) a combination thereof, in each case sufficient, in the opinion of a nationally



35









 





recognized firm of independent public accountants expressed in a written certificate thereof
delivered to the Trustee, to pay the principal of and any premium and interest on such Notes
on the Stated Maturity of the principal of the Notes in accordance with the terms of this
Indenture and such Notes.




     (b) In order to have Section 8.4 hereof apply to any Notes, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the applicable
federal income tax law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Notes will not recognize gain or loss for
federal income tax purposes as a result of such deposit and Defeasance and will be subject
to federal income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit and Defeasance had not occurred.



     (c) In order to have Section 8.5 hereof apply to any Notes, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes will not recognize gain or loss for federal income tax purposes as a
result of such deposit and Covenant Defeasance and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the case if
such deposit and Covenant Defeasance had not occurred.



     (d) No Default or Event of Default with respect to such Notes or any other Notes shall
have occurred and be continuing at the time of such deposit or, with regard to any such
event specified in clauses (e) of (f) of Section 6.1 hereof, at any time on or prior to the
90th day after the date of such deposit (it being understood that this condition shall not
be deemed satisfied with respect to such specified events until after such 90th day).



     (e) Such Defeasance or Covenant Defeasance will 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 Restricted Subsidiaries is a party or by which
the Company or any of its Restricted Subsidiaries is bound.



     (f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that on the 91st day following the deposit, the trust funds will not be subject to avoidance
under Section 547 of the Bankruptcy Code or any successor provision thereof.



     (g) The Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders of
Notes over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.



     (h) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or
relating to Defeasance or the Covenant Defeasance have been complied with.




36












 






			
	SECTION 8.7	 	DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS





     Subject to Section 8.8 hereof, all money and Government Securities (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 8.9 hereof, the Trustee and any such other trustee are referred to collectively
as the “Trustee”) pursuant to Section 8.6 hereof in respect of any Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Notes for the payment or
redemption of which such funds have been deposited with the Trustee, of all sums due and to become
due thereon in respect of principal and any premiums and interest, but money so held in trust need
not be segregated from other funds except to the extent required by law.



     Anything in this Article to the contrary notwithstanding, the Trustee or the Paying Agent, as
applicable, shall promptly return, deliver or pay to the Company from time to time upon Company
request any money or Government Securities held by it as provided in Section 8.6 hereof with
respect to any Notes which, at any time, are in excess of the amount thereof which would then be
required to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Notes. The provisions of Section 8.8 hereof shall apply to any money held by the Trustee or any
Paying Agent under this Article that remains unclaimed for two years after the Stated Maturity of
the Notes for which money or Government Securities have been deposited pursuant to Section 8.6
hereof.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Securities deposited pursuant to this Article 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 outstanding Notes.




			
	SECTION 8.8	 	REPAYMENT TO COMPANY





     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 premium and interest, if any, on, any Note and
remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on its written request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured
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 notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.



37









 






			
	SECTION 8.9	 	REINSTATEMENT





     If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.4 or 8.5 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 obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.4 or 8.5 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.4 or 8.5 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 shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER





			
	SECTION 9.1	 	WITHOUT CONSENT OF HOLDERS OF NOTES





     Notwithstanding Section 9.2 hereof, the Company and the Trustee may amend or supplement this
Indenture or the Notes without the consent of Holders of the Notes:




     (a) to cure any ambiguity, defect or inconsistency;




     (b) to provide for uncertificated Notes in addition to or in place of certificated
Notes or to alter the provisions of Article 2 hereof (including the related definitions) in
a manner that does not materially adversely affect any Holder;




     (c) to provide for the assumption of the Company’s obligations to the Holders of any of
the Notes in the case of a merger, consolidation or sale of assets of the Company pursuant
to Article 5 hereof;




     (d) to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights hereunder of any
such Holder in any material respect;




     (e) to conform the text of this Indenture or the Notes to any provision of the
“Description of the National Oilwell Varco Notes” section of the Company’s Prospectus dated
                        , 2008, relating to the initial offering of the Notes, to the extent that such
provision in that “Description of the National Oilwell Varco Notes” was intended to be a
verbatim recitation of a provision of this Indenture or the Notes;




     (f) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA; or




     (g) to allow any guarantor to guarantee the Notes.



38









 





     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties, liabilities or immunities under this Indenture or
otherwise.




			
	SECTION 9.2	 	WITH CONSENT OF HOLDERS OF NOTES





     Except as provided below in this Section 9.2, the Company and the Trustee may amend or
supplement this Indenture and the Notes may be amended or supplemented with the consent of the
Holders of a majority in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for the Notes),
and, subject to Sections 6.4 and 6.7 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, or premium, if any, or interest on,
the Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by a Responsible Officer of the Trustee of the documents described in
Section 9.6 hereof, the Trustee shall join with the Company in the execution of such amended or
supplemental Indenture. It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes. However, without the consent of each
Holder affected, an amendment or waiver may not (with respect to any Notes held by a nonconsenting
Holder):




     (a) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any such Note;




     (b) reduce the principal amount of, or any interest on, any such Note;



39









 






     (c) reduce the amount of principal of any such Note payable upon acceleration of the
Stated Maturity thereof;




     (d) change the place or currency of payment of principal of, or interest on, any such
Note;




     (e) impair the right to institute suit for the enforcement of any payment on or with
respect to any such Note;




     (f) reduce the percentage in principal amount of such Note, the consent of whose
Holders is required for modification or amendment of the Indenture;




     (g) reduce the percentage in principal amount of such Note necessary for waiver of
compliance with certain provisions of the Indenture or for waiver of certain defaults;




     (h) modify such provisions with respect to modification and waiver; or




     (i) make any change in Section 6.4 or 6.7 hereof or in the foregoing amendment and
waiver provisions.




			
	SECTION 9.3	 	COMPLIANCE WITH TRUST INDENTURE ACT





     Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental Indenture that complies with the TIA as then in effect.




			
	SECTION 9.4	 	REVOCATION AND EFFECT OF CONSENTS





     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.




			
	SECTION 9.5	 	NOTATION ON OR EXCHANGE OF NOTES





     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company, in exchange for all Notes, may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.



     Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.



40









 






			
	SECTION 9.6	 	TRUSTEE TO SIGN AMENDMENTS, ETC.





     The Trustee shall sign any amended or supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Trustee may, but shall not be obligated to, enter into any such
supplemental Indenture which affects the Trustee’s own rights, duties, liabilities or immunities
under this Indenture or otherwise. The Company may not sign an amended or supplemental Indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.1 hereof) shall be fully protected
in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental Indenture is authorized or permitted by this Indenture.




			
	SECTION 9.7	 	RECORD DATES





     Except as otherwise provided in this Indenture or the Notes, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of Notes entitled to give
or take any direction, notice, consent, waiver or other action under the Indenture. Pursuant to
Section 6.10, the Trustee also will be entitled to set a record date for certain payments to
Holders of Notes. If a record date is set for any action to be taken by Holders of the Notes, such
action may be taken only by Persons who are Holders of the Notes on the record date. To be
effective, such action must be taken by Holders of the requisite principal amount of the Notes
within a specified period following the record date. For any particular record date, this period
will be 180 days or such shorter period as may be specified by the Company (or the Trustee, if it
sets the record date), and may be shortened or lengthened (but not beyond 180 days) from time to
time.



ARTICLE 10

MISCELLANEOUS





			
	SECTION 10.1	 	TRUST INDENTURE ACT CONTROLS





     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA Section 318(c), the imposed duties shall control.




			
	SECTION 10.2	 	NOTICES





     Any notice or communication by the Company or the Trustee to the other 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:



National Oilwell Varco, Inc.

7909 Parkwood Circle Drive

Houston, Texas 77036-6565

Telecopier No.: (713) 346-4524

Attention: Chief Financial Officer




41









 







If to the Trustee:



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

601 Travis, 18th Floor

Houston, Texas 77002

Attention: Corporate Trust Trustee

Administration

Telecopier No.: (713) 483-7038

Ref: National Oilwell Varco, Inc.




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



     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; five 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.



     Any notice or communication to a Holder shall be mailed by first class mail, postage prepaid,
or by overnight air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to any Person described
in TIA Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication
to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above within the time prescribed, it is
duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.




			
	SECTION 10.3	 	COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES





     Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).




			
	SECTION 10.4	 	CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT





     Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




     (a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 10.5 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and



42









 






     (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 10.5 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.




			
	SECTION 10.5	 	STATEMENTS REQUIRED IN CERTIFICATE OR OPINION





     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall
comply with the provisions of TIA Section 314(e) and shall include:




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




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




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




     (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.




			
	SECTION 10.6	 	RULES BY TRUSTEE AND AGENTS





     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.




			
	SECTION 10.7	 	NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS





     No past, present or future director, officer, employee, incorporator, partner, member or
stockholder of the Company, or of any member, partner or stockholder of any such entity, as such,
shall have any liability for any obligation of the Company under the Notes, this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.




			
	SECTION 10.8	 	GOVERNING LAW





     THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF, SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES.



43









 






			
	SECTION 10.9	 	NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS





     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.




			
	SECTION 10.10	 	SUCCESSORS





     All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.




			
	SECTION 10.11	 	SEVERABILITY





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




			
	SECTION 10.12	 	COUNTERPART ORIGINALS





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




			
	SECTION 10.13	 	TABLE OF CONTENTS, HEADINGS, ETC.





     The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.



[Signatures Page(s) Follow]




44









 








	 	 	 	 	 
	 	SIGNATURES



NATIONAL OILWELL VARCO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Trustee:



THE BANK OF NEW YORK TRUST 

COMPANY, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



45









 







EXHIBIT A

(FACE OF NOTE)




CUSIP:




61/8% SENIOR NOTES DUE 2015




No. $




NATIONAL OILWELL VARCO, INC




promises to pay to                                          or registered assigns, the principal sum of                     



Dollars on August 15, 2015




Interest Payment Dates: February 15 and August 15




Record Dates: February 1 and August 1




	 	 	 	 	 
	 	NATIONAL OILWELL VARCO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the [Global]

Notes referred to in the

within-mentioned Indenture:




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

as Trustee




	 	 	 	 	 	 	 
	By:

	 	 
	 	Dated: 
	 	 
	 

	 	Authorized Signatory	 	 	 	 






A-1









 






(Back of Note)

61/8% Senior Notes due 2015



[Insert the Global Note Legend, if applicable, pursuant to the provisions of the Indenture]




Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred
to below unless otherwise indicated.



1. INTEREST. National Oilwell Varco, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at 61/8% per annum, from February 15, 2008 until
maturity. The Company will pay interest semi-annually in arrears on each February 15 and August 15
following the date of issuance of this Note, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be the Interest Payment Date
next following the date set forth in the first sentence of this paragraph. The Company shall pay
interest on overdue principal and premium, if any, from time to time as provided in Section 2.12 of
the Indenture at the rate borne on the Notes; it shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) from time to time as provided in Section
2.12 of the Indenture at the same rate to the extent lawful. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.



2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the
Persons who are registered Holders of Notes at the close of business on the February 1 or August 1
(whether or not a Business Day) next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium, if any, and interest at the office or agency of the Company maintained for such
purpose within the City and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest and premium, if any, on, all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to the Company or the
Paying Agent. Such payment shall be 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.



3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Trust Company, N.A., the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.




A-2









 








4. INDENTURE. The Company issued the Notes under an Indenture dated as of
                         , 2008
(“Indenture”) between the Company and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are obligations of the Company initially
limited to $174,585,000 in aggregate principal amount, but the aggregate principal amount may be
increased as provided in the Indenture.



5. OPTIONAL REDEMPTION. The Company may redeem any or all of the Notes at any time on or after
August 15, 2010, upon not less than 30 nor more than 60 days’ prior notice in amounts of $1,000 or
an integral multiple thereof at the redemption prices (expressed as a percentage of the principal
amount) set forth below, if redeemed during the 12-month period beginning August 15 of the years
indicated below:




	 	 	 	 	 
	Year	 	Redemption Price
	2010
	 	 	103.063	%
	2011
	 	 	102.042	%
	2012
	 	 	101.021	%
	2013 and thereafter
	 	 	100.000	%





in each case together with accrued and unpaid interest, if any, to the date of redemption.




     If less than all the Notes are to be redeemed, the Trustee will select the particular Notes or
portions thereof to be redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate subject to certain restrictions contained in the
Indenture.


6. OPTIONAL REDEMPTION UPON EQUITY OFFERING. From time to time, on or prior to August 15, 2008, the
Company may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem up
to 35% of the aggregate principal amount of the Notes issued under the Indenture at a redemption
price equal to 106.125% of the principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the date of redemption; provided that (a) at least 65% of the original principal amount
of Notes issued under the Indenture shall remain outstanding immediately after any such redemption,
and (b) the Company shall make such redemption not more than 90 days after the consummation of any
such Equity Offering. If a partial redemption is made with the proceeds of an Equity Offering,
selection of the Notes or portions thereof for redemption shall be made by the Trustee only on a
pro rata basis or on as nearly a pro rata basis as is practicable (subject to the procedures of the
Depositary), unless such method is prohibited.




     As used in the preceding paragraph, “Equity Offering” means any public or private sale of the
Company’s Equity Interests (other than Disqualified Stock.)



A-3









 




7. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30 days but not more than
60 days before any optional redemption date to each Holder whose Notes are to be redeemed at its
registered address. Notes and portions of Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. On and after the redemption date interest ceases to accrue on Notes, or portions thereof
called for redemption.



8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require
a Holder, among other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being redeemed in part.
Also, it need not exchange or register the transfer of any Notes for a period of 15 days before the
mailing of a notice of redemption of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.



9. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all
purposes.



10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide
for uncertificated Notes in addition to or in place of certificated Notes or to alter the
provisions in Article 2 of the Indenture in a manner that does not materially adversely affect any
Holder, to provide for the assumption of the Company’s obligations to Holders of the Notes in case
of a merger, consolidation or sale of assets in accordance with Article 5 of the Indenture, to make
any change that would provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such Holder in any material
respect, to comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA, or to allow any guarantor to guarantee the Notes.



11. DEFAULTS AND REMEDIES. Events of Default include: (a) default in the payment when due of
principal of the Notes; (b) default in the payment when due of interest on the Notes and such
default continues for a period of 30 days; (c) failure by the Company or any of its Restricted
Subsidiaries to observe or perform any other covenant (other than the covenants described in (a)
and (b) above) in the Indenture or the Notes for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (d)
failure by the Company or any Subsidiary to pay indebtedness when due within the applicable grace
period, if any, or the acceleration of such indebtedness by the


A-4









 






 holders thereof and, in either case, the principal amount of such unpaid or accelerated
indebtedness exceeds $20 million; or (e) certain events of bankruptcy or insolvency with respect to
the Company or any of its Significant Subsidiaries as specified in Section 6.1 of the Indenture. If
any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes by notice to the Company may declare all the Notes
to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, the principal amount of all then
outstanding Notes will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a Default or Event of Default relating
to the payment of principal, premium, if any, or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest or premium, if any, on, or the principal of,
the Notes or in respect of any other covenant or provision of the Indenture which, under Section
9.2 of the Indenture, cannot be modified without the consent of the Holder of each outstanding
Note. The Company is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default.



12. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the Trustee.



13. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator, partner, member or
stockholder of the Company or any Subsidiary of the Company, as such, shall not have any liability
for any obligations of the Company under the Notes, or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
the issuance of the Notes.



14. AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of an
authorized signatory of the Trustee or an authenticating agent.



15. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).



16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and
CUSIP numbers will be used in notices of redemption as a convenience


A-5









 






 to Holders. No representation is made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.




A-6









 








ASSIGNMENT FORM




To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to





 





(Insert assignee’s social security or tax identification number)





 





 


 




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



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



 





Date:



Your Signature:                                                                      
   

(Sign exactly as your name appears on the face of this Note)




SIGNATURE GUARANTEE





 





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




A-7









 








SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE**




     The following exchanges of a part of this Global Note for an interest in another Note, or exchanges
of a part of another Note for an interest in this Global Note, have been made:




	 	 	 
	 	 	 	 	 	 	 	 	Principal Amount of	 	 	 
	 	 	 	 	 	 	 	 	this Global Note	 	 	Signature of
	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	authorized
	 	 	in Principal Amount	 	 	in Principal Amount	 	 	decrease (or	 	 	signatory of Note
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	increase)	 	 	custodian








 




			
	**	 	This should be included if the Note is a Global Note






A-8