EX-4.4






Exhibit 4.4




 





Superior Well Services, Inc.,

as Issuer




and




Any Subsidiary Guarantors parties hereto,

as Subsidiary Guarantors




to




[Trustee’s Name],

as Trustee




SUBORDINATED INDENTURE




Dated as of                     , 200_




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE
	PARTIES

	 	 	1	 
	RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS

	 	 	1	 
	 
	 	 	 	 
	ARTICLE ONE

	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

	 
	 	 	 	 
	SECTION 101. Definitions

	 	 	1	 
	SECTION 102. Compliance Certificates and Opinions

	 	 	7	 
	SECTION 103. Form of Documents Delivered to Trustee

	 	 	8	 
	SECTION 104. Acts of Holders; Record Dates

	 	 	8	 
	SECTION 105. Notices, Etc., to Trustee and Company

	 	 	10	 
	SECTION 106. Notice to Holders; Waiver

	 	 	11	 
	SECTION 107. Conflict with Trust Indenture Act

	 	 	11	 
	SECTION 108. Effect of Headings and Table of Contents

	 	 	11	 
	SECTION 109. Successors and Assigns

	 	 	11	 
	SECTION 110. Separability Clause

	 	 	12	 
	SECTION 111. Benefits of Indenture

	 	 	12	 
	SECTION 112. Governing Law

	 	 	12	 
	SECTION 113. Legal Holidays

	 	 	12	 
	 
	 	 	 	 
	ARTICLE TWO

	SECURITY FORMS

	 
	 	 	 	 
	SECTION 201. Forms Generally

	 	 	12	 
	SECTION 202. Form of Face of Security

	 	 	13	 
	SECTION 203. Form of Reverse of Security

	 	 	15	 
	SECTION 204. Form of Subsidiary Guarantee

	 	 	19	 
	SECTION 205. Form of Legend for Global Securities

	 	 	21	 
	SECTION 206. Form of Trustee’s Certificate of Authentication

	 	 	21	 
	SECTION 207. Form of Conversion Notice

	 	 	22	 
	 
	 	 	 	 
	ARTICLE THREE

	THE SECURITIES

	 
	 	 	 	 
	SECTION 301. Amount Unlimited; Issuable in Series

	 	 	23	 
	SECTION 302. Denominations

	 	 	26	 
	SECTION 303. Execution, Authentication, Delivery and Dating

	 	 	26	 
	SECTION 304. Temporary Securities

	 	 	27	 
	SECTION 305. Registration, Registration of Transfer and Exchange

	 	 	28	 
	SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities

	 	 	29	 
	SECTION 307. Payment of Interest; Interest Rights Preserved

	 	 	30	 
	SECTION 308. Persons Deemed Owners

	 	 	31	 
	SECTION 309. Cancellation

	 	 	32	 
	SECTION 310. Computation of Interest

	 	 	32	 






i 









 






	 	 	 	 	 
	 	 	PAGE
	ARTICLE FOUR

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	SECTION 401. Satisfaction and Discharge of Indenture

	 	 	32	 
	SECTION 402. Application of Trust Money

	 	 	33	 
	 
	 	 	 	 
	ARTICLE FIVE

	REMEDIES

	 
	 	 	 	 
	SECTION 501. Events of Default

	 	 	33	 
	SECTION 502. Acceleration of Maturity; Rescission and Annulment

	 	 	36	 
	SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee

	 	 	37	 
	SECTION 504. Trustee May File Proofs of Claim

	 	 	37	 
	SECTION 505. Trustee May Enforce Claims Without Possession of Securities

	 	 	38	 
	SECTION 506. Application of Money Collected

	 	 	38	 
	SECTION 507. Limitation on Suits

	 	 	38	 
	SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest

	 	 	39	 
	SECTION 509. Restoration of Rights and Remedies

	 	 	39	 
	SECTION 510. Rights and Remedies Cumulative

	 	 	39	 
	SECTION 511. Delay or Omission Not Waiver

	 	 	39	 
	SECTION 512. Control by Holders

	 	 	40	 
	SECTION 513. Waiver of Past Defaults

	 	 	40	 
	SECTION 514. Undertaking for Costs

	 	 	40	 
	SECTION 515. Waiver of Usury, Stay or Extension Laws

	 	 	41	 
	 
	 	 	 	 
	ARTICLE SIX

	THE TRUSTEE

	 
	 	 	 	 
	SECTION 601. Certain Duties and Responsibilities

	 	 	41	 
	SECTION 602. Notice of Defaults

	 	 	41	 
	SECTION 603. Certain Rights of Trustee

	 	 	41	 
	SECTION 604. Not Responsible for Recitals or Issuance of Securities

	 	 	42	 
	SECTION 605. May Hold Securities

	 	 	42	 
	SECTION 606. Money Held in Trust

	 	 	43	 
	SECTION 607. Compensation and Reimbursement

	 	 	43	 
	SECTION 608. Conflicting Interests

	 	 	43	 
	SECTION 609. Corporate Trustee Required; Eligibility

	 	 	43	 
	SECTION 610. Resignation and Removal; Appointment of Successor

	 	 	44	 
	SECTION 611. Acceptance of Appointment by Successor

	 	 	45	 
	SECTION 612. Merger, Conversion, Consolidation or Succession to Business

	 	 	46	 
	SECTION 613. Preferential Collection of Claims Against Company and Subsidiary
Guarantors

	 	 	46	 
	SECTION 614. Appointment of Authenticating Agent

	 	 	47	 
	 
	 	 	 	 
	ARTICLE SEVEN

	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

	 
	 	 	 	 
	SECTION 701. Company to Furnish Trustee Names and Addresses of Holders

	 	 	48	 
	SECTION 702. Preservation of Information; Communications to Holders

	 	 	49	 






ii 









 






	 	 	 	 	 
	 	 	PAGE
	SECTION 703. Reports by Trustee

	 	 	49	 
	SECTION 704. Reports by Company and Subsidiary Guarantors

	 	 	49	 
	 
	 	 	 	 
	ARTICLE EIGHT

	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

	 
	 	 	 	 
	SECTION 801. Company May Consolidate, Etc., Only on Certain Terms

	 	 	49	 
	SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms

	 	 	50	 
	SECTION 803. Successor Substituted

	 	 	51	 
	 
	 	 	 	 
	ARTICLE NINE

	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 
	SECTION 901. Supplemental Indentures Without Consent of Holders

	 	 	51	 
	SECTION 902. Supplemental Indentures With Consent of Holders

	 	 	53	 
	SECTION 903. Execution of Supplemental Indentures

	 	 	54	 
	SECTION 904. Effect of Supplemental Indentures

	 	 	54	 
	SECTION 905. Conformity with Trust Indenture Act

	 	 	54	 
	SECTION 906. Reference in Securities to Supplemental Indentures

	 	 	54	 
	 
	 	 	 	 
	ARTICLE TEN

	COVENANTS

	 
	 	 	 	 
	SECTION 1001. Payment of Principal, Premium and Interest

	 	 	55	 
	SECTION 1002. Maintenance of Office or Agency

	 	 	55	 
	SECTION 1003. Money for Securities Payments to Be Held in Trust

	 	 	55	 
	SECTION 1004. Statement by Officers as to Default

	 	 	56	 
	SECTION 1005. Existence

	 	 	57	 
	SECTION 1006. Maintenance of Properties

	 	 	57	 
	SECTION 1007. Payment of Taxes and Other Claims

	 	 	57	 
	SECTION 1008. Maintenance of Insurance

	 	 	57	 
	SECTION 1009. Waiver of Certain Covenants

	 	 	58	 
	 
	 	 	 	 
	ARTICLE ELEVEN

	REDEMPTION OF SECURITIES

	 
	 	 	 	 
	SECTION 1101. Applicability of Article

	 	 	58	 
	SECTION 1102. Election to Redeem; Notice to Trustee

	 	 	58	 
	SECTION 1103. Selection by Trustee of Securities to Be Redeemed

	 	 	58	 
	SECTION 1104. Notice of Redemption

	 	 	59	 
	SECTION 1105. Deposit of Redemption Price

	 	 	60	 
	SECTION 1106. Securities Payable on Redemption Date

	 	 	60	 
	SECTION 1107. Securities Redeemed in Part

	 	 	61	 
	 
	 	 	 	 
	ARTICLE TWELVE

	SUBORDINATION OF SECURITIES

	 
	 	 	 	 
	SECTION 1201. Applicability of Article

	 	 	61	 
	SECTION 1202. Securities Subordinate to Senior Debt

	 	 	61	 
	SECTION 1203. Payment Over of Proceeds Upon Dissolution, Etc.

	 	 	61	 
	SECTION 1204. No Payment When Senior Debt of the Company in Default

	 	 	63	 
	SECTION 1205. Payment Permitted If No Default

	 	 	64	 






iii 









 






	 	 	 	 	 
	 	 	PAGE
	SECTION 1206. Subrogation to Rights of Holders of Senior Debt of the Company

	 	 	64	 
	SECTION 1207. Provisions Solely to Define Relative Rights

	 	 	64	 
	SECTION 1208. Trustee to Effectuate Subordination

	 	 	65	 
	SECTION 1209. No Waiver of Subordination Provisions

	 	 	65	 
	SECTION 1210. Notice to Trustee

	 	 	65	 
	SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent

	 	 	66	 
	SECTION 1212. Trustee Not Fiduciary for Holders of Senior Debt of the Company

	 	 	66	 
	SECTION 1213. Rights of Trustee as Holder of Senior Debt of the Company; Preservation
of Trustee’s Rights

	 	 	67	 
	SECTION 1214. Article Applicable to Paying Agents

	 	 	67	 
	SECTION 1215. Defeasance of this Article Twelve

	 	 	67	 
	 
	 	 	 	 
	ARTICLE THIRTEEN

	SUBSIDIARY GUARANTEES

	 
	 	 	 	 
	SECTION 1301. Applicability of Article

	 	 	67	 
	SECTION 1302. Subsidiary Guarantees

	 	 	67	 
	SECTION 1303. Execution and Delivery of Subsidiary Guarantees

	 	 	69	 
	SECTION 1304. Release of Subsidiary Guarantors

	 	 	70	 
	SECTION 1305. Additional Subsidiary Guarantors

	 	 	70	 
	SECTION 1306. Limitation on Liability

	 	 	71	 
	 
	 	 	 	 
	ARTICLE FOURTEEN

	SUBORDINATION OF SUBSIDIARY GUARANTEES

	 
	 	 	 	 
	SECTION 1401. Applicability of Article

	 	 	71	 
	SECTION 1402. Subsidiary Guarantees Subordinate to Senior Debt of Subordinate Guarantors

	 	 	71	 
	SECTION 1403. Payment Over of Proceeds Upon Dissolution, Etc.

	 	 	71	 
	SECTION 1404. No Payment When Senior Debt of such Subsidiary Guarantor in Default

	 	 	72	 
	SECTION 1405. Payment Permitted If No Default

	 	 	73	 
	SECTION 1406. Subrogation to Rights of Holders of Senior Debt of such Subsidiary Guarantor

	 	 	73	 
	SECTION 1407. Provisions Solely to Define Relative Rights

	 	 	74	 
	SECTION 1408. Trustee to Effectuate Subordination

	 	 	74	 
	SECTION 1409. No Waiver of Subordination Provisions

	 	 	74	 
	SECTION 1410. Notice to Trustee

	 	 	75	 
	SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating Agent

	 	 	76	 
	SECTION 1412. Trustee Not Fiduciary for Holders of Senior Debt of such Subsidiary Guarantor

	 	 	76	 
	SECTION 1413. Rights of Trustee as Holder of Senior Debt of such Subsidiary Guarantor;
Preservation of Trustee’s Rights

	 	 	76	 
	SECTION 1414. Article Applicable to Paying Agents

	 	 	76	 
	SECTION 1415. Defeasance of this Article Fourteen

	 	 	76	 
	 
	 	 	 	 
	ARTICLE FIFTEEN

	DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	SECTION 1501. Company’s Option to Effect Defeasance or Covenant Defeasance

	 	 	77	 
	SECTION 1502. Defeasance and Discharge

	 	 	77	 






iv 









 






	 	 	 	 	 
	 	 	PAGE
	SECTION 1503. Covenant Defeasance

	 	 	77	 
	SECTION 1504. Conditions to Defeasance or Covenant Defeasance

	 	 	78	 
	SECTION 1505. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions

	 	 	80	 
	SECTION 1506. Reinstatement

	 	 	81	 
	 
	 	 	 	 
	ARTICLE SIXTEEN

	SINKING FUNDS

	 
	 	 	 	 
	SECTION 1601. Applicability of Article

	 	 	81	 
	SECTION 1602. Satisfaction of Sinking Fund Payments with Securities

	 	 	81	 
	SECTION 1603. Redemption of Securities for Sinking Fund

	 	 	82	 
	 
	 	 	 	 
	SIGNATURES

	 	 	83	 
	SCHEDULE I-1

	 	 	1	 







v 









 








SUPERIOR WELL SERVICES, INC.




CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310

THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:




	 	 	 
	TRUST INDENTURE	 	 
	ACT SECTION     	 	INDENTURE SECTION
	Section 310(a)(1)
	 	609 
	(a)(2)
	 	609 
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(b)
	 	608 
	 
	 	610 
	Section 311(a)
	 	613 
	(b)
	 	613 
	Section 312(a)
	 	701 
	 
	 	702 
	(b)
	 	702 
	(c)
	 	702 
	Section 313(a)
	 	703 
	(b)
	 	703 
	(c)
	 	703 
	(d)
	 	703 
	Section 314(a)
	 	704 
	(a)(4)
	 	101 
	 
	 	1004 
	(b)
	 	Not Applicable
	(c)(1)
	 	102 
	(c)(2)
	 	102 
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	102 
	Section 315(a)
	 	601 
	(b)
	 	602 
	(c)
	 	601 
	(d)
	 	601 
	(e)
	 	514 
	Section 316(a)
	 	101 
	(a)(1)(A)
	 	502 
	 
	 	512 
	(a)(1)(B)
	 	513 
	(a)(2)
	 	Not Applicable
	(b)
	 	508 
	(c)
	 	104 






vi 









 






	 	 	 
	TRUST INDENTURE	 	 
	ACT SECTION     	 	INDENTURE SECTION
	Section 317(a)(1)
	 	503 
	(a)(2)
	 	504 
	(b)
	 	1003 
	Section 318(a)
	 	107 








 




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





vii 









 





     THIS INDENTURE, dated as of                     , 200___, is among Superior Well Services, Inc., a
corporation duly organized and existing under the laws of the State of Delaware (herein called the
“Company”), having its principal office at 1380 Rt. 286 East, Suite #121, Indiana, Pennsylvania
15701, any Subsidiary Guarantors (defined herein) parties hereto from time to time and [Trustee’s
Name], a banking corporation duly organized and existing under the laws of the State of [                    ],
as Trustee (herein called the “Trustee”).



     RECITALS OF THE COMPANY AND ANY SUBSIDIARY GUARANTORS



     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), to be issued in one or more series as in this
Indenture provided, and each Subsidiary Guarantor that is or may become a party to this Indenture
will duly authorize its Subsidiary Guarantee of the Securities.



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION




SECTION 101. Definitions.




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




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




     (2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and, except as otherwise
herein expressly provided, the term “generally accepted accounting principles” with respect
to any computation required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this instrument;




     (4) unless the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this Indenture; and



1









 






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



     “Act”, when used with respect to any Holder, has the meaning specified in Section 104.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing; provided that direct or indirect
beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to control.



     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.



     “Board of Directors” means, with respect to the Company, either the board of directors of the
Company or any committee of that board duly authorized to act for it in respect hereof, and with
respect to any Subsidiary Guarantor, either the board of directors of such Subsidiary Guarantor or
any committee of that board duly authorized to act for it in respect hereof.



     “Board Resolution” means, with respect to the Company or any Subsidiary Guarantor, a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company or such Subsidiary
Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.



     “Capital Stock” of any Person means any and all shares, interests, participations or other
equivalents (however designated) of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such Person.



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



     “Common Stock” means the common stock, no par value, of the Company as the same exists at the
date of execution and delivery of this Indenture or other Capital Stock of the Company into which
such common stock is converted, reclassified or changed from time to time.



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



2









 





     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.



     “Conversion Agent” means any Person authorized by the Company to convert any Securities on
behalf of the Company.



     “Corporate Trust Office” means the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered, such office being located on the date
hereof at [Trustee’s Address].



     “corporation” means a corporation, association, limited liability company, joint-stock company
or business trust.



     “Covenant Defeasance” has the meaning specified in Section 1503.



     “Defaulted Interest” has the meaning specified in Section 307.



     “Defeasance” has the meaning specified in Section 1502.



     “Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.



     “Event of Default” has the meaning specified in Section 501.



     “Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.



     “Expiration Date” has the meaning specified in Section 104.



     “Global Security” means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 205 (or such legend as may be specified as contemplated
by Section 301 for such Securities).



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



     “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 301.



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



3









 





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



     “Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.



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



     “Notice of Default” means a written notice of the kind specified in Section 501(4).



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or any Subsidiary
Guarantor, as the case may be, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.



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



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.



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




     (1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




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




     (3) Securities as to which Defeasance has been effected pursuant to Section 1502; and




     (4) Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been



4









 







presented to the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations of the Company;



     provided, however, that in determining whether the Holders of the requisite principal amount
of the Outstanding Securities have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal
amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such date upon acceleration of
the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable, the principal amount of
such Security which shall be deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 301, (C) the principal amount of a Security denominated in
one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of a Security described in
clause (A) or (B) above, of the amount determined as provided in such clause), and (D) Securities
owned by the Company, any Subsidiary Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, any Subsidiary Guarantor or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company, a Subsidiary Guarantor
or any other obligor upon the Securities or any Affiliate of the Company, a Subsidiary Guarantor or
of such other obligor.



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



     “Person” means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.



     “Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



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



5









 





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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.



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



     “Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
305.



     “Senior Debt” with respect to any series of Securities shall have the meaning specified as
contemplated by Section 301.



     “Significant Subsidiary” means, at any date of determination, any Subsidiary that represents
10% or more of the Company’s consolidated total assets at the end of the most recent fiscal quarter
for which financial information is available or 10% or more of the Company’s consolidated net
revenues or consolidated operating income for the most recent four quarters for which financial
information is available.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.



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



     “Subsidiary” of any Person means (1) a corporation more than 50% of the combined voting power
of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one
or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or
(2) any other Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies, management and
affairs thereof.



     “Subsidiary Guarantees” means the guarantees of each Subsidiary Guarantor as provided in
Article Thirteen.



     “Subsidiary Guarantors” means the Person or Persons named as the “Subsidiary Guarantors” on
the signature pages of this instrument, or a supplement hereto, until a successor Person or Persons
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Subsidiary Guarantors” shall mean such successor Person or Persons, and any other Subsidiary of
the Partnership who may execute this instrument, or a supplement hereto, for



6









 







the purpose of providing a Subsidiary Guarantee pursuant to this Indenture, in each until such
Subsidiary Guarantor ceases to be such in accordance with Section 1304 hereof.



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



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



     “U.S. Government Obligation” has the meaning specified in Section 1504.



     “Vice President”, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”.



     “Voting Stock” of any Person means Capital Stock of such Person which ordinarily has voting
power for the election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such voting power by
reason of any contingency.



     “Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying
shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.



SECTION 102. Compliance Certificates and Opinions.




     Upon any application or request by the Company or any Subsidiary Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company and/or such Subsidiary
Guarantor, as appropriate, shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers’ Certificate, if to be given by an officer of the Company or a Subsidiary
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:




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



7









 






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




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




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



SECTION 103. Form of Documents Delivered to Trustee.




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



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



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



SECTION 104. Acts of Holders; Record Dates.




     Whenever in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities of any or all series may take action (including the
making of any demand or request, the giving of any direction, notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with procedures approved by the Trustee, (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders or (d) in the case of
Securities evidenced by a Global Security, by any electronic transmission or other message, whether
or not in written format, that complies with the Depositary’s applicable



8









 







procedures. Such evidence (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the relevant Holders. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.



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



     The ownership of Securities shall be proved by the Security Register.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.



     The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 106.



     The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice



9









 







of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request
to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section 106.



     With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.



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



SECTION 105. Notices, Etc., to Trustee and Company.




     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:




     (1) the Trustee by any Holder or by the Company or any Subsidiary Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing in the
English language to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department; or



10









 






     (2) the Company or any Subsidiary Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in
writing in the English language and mailed, first-class postage prepaid, in the case of the
Company addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in writing to the
Trustee by the Company and, in the case of any Subsidiary Guarantor, to it at the address
of the Company’s principal office specified in the first paragraph of this instrument,
Attention: Chief Financial Officer, or at any other address previously furnished in writing
to the Trustee by such Subsidiary Guarantor.



SECTION 106. Notice to Holders; Waiver.




     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.



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



SECTION 107. Conflict with Trust Indenture Act.




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



SECTION 108. Effect of Headings and Table of Contents.




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



SECTION 109. Successors and Assigns.




     All covenants and agreements in this Indenture by the Company and any Subsidiary Guarantor
shall bind its successors and assigns, whether so expressed or not.



11









 





SECTION 110. Separability Clause.




     In case any provision in this Indenture, the Securities or the Subsidiary Guarantees shall be
invalid, illegal or unenforceable, the validity, legality and enforce ability of the remaining
provisions shall not in any way be affected or impaired thereby.



SECTION 111. Benefits of Indenture.




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



SECTION 112. Governing Law.




     This Indenture, the Securities and the Subsidiary Guarantees shall be governed by and
construed in accordance with the law of the State of New York.



SECTION 113. Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date, purchase date or Stated Maturity
of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date or purchase date, or at the
Stated Maturity.



ARTICLE TWO




SECURITY FORMS




SECTION 201. Forms Generally.




     The Securities of each series and, if applicable, the Subsidiary Guarantees to be endorsed
thereon shall be in substantially the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or Depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities or Subsidiary Guarantees, as the
case may be, as evidenced by their execution thereof. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.



12









 





     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.



SECTION 202. Form of Face of Security.




     [Insert any legend required by the Internal Revenue Code and the regulations thereunder.]



Superior Well Services, Inc.




 






			
	 	 	 
	No.                    
	 	$                     






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



     [If the Security is not to bear interest prior to Maturity, insert — The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall



13









 







be payable on demand. Any such interest on overdue principal or premium which is not paid on
demand shall bear interest at the rate of                     % per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date of such demand until the amount
so demanded is paid or made available for payment. Interest on any overdue interest shall be
payable on demand.]



     Payment of the principal of (and premium, if any) and [if applicable, insert — any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in                     , in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.



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



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



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.



Dated:




	 	 	 	 	 
	 	Superior Well Services, Inc.

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 



	 	 	 
	Attest:
	 	 
	 
	 	 
	 


	 	 






14









 





SECTION 203. Form of Reverse of Security.




     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
                    , 200___ (herein called the “Indenture”, which term shall have the meaning assigned to it
in such instrument), among the Company, any Subsidiary Guarantors party thereto and [Trustee’s
Name], as Trustee (herein called the “Trustee”, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, any Subsidiary Guarantors,
the Trustee, the holders of Senior Debt and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [if applicable, insert — , limited in aggregate principal
amount to $                     ].



     [If applicable, insert — The Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, [if applicable, insert — (1) on                      in any year
commencing with the year                      and ending with the year                      through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any
time [if applicable, insert — on or after                     , 20___], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert — on or before                     , ___%, and if
redeemed] during the 12-month period beginning                      of the years indicated,



	 	 	 	 	 	 	 
	Year	 	Redemption Price	 	Year	 	Redemption Price
	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 




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




     [If applicable, insert — The Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, (1) on                      in any year commencing with the year ___
and ending with the year ___through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if applicable, insert —
on or after                     ], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning                      of the years indicated,



15









 





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




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




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



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



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



     [If the Security is subject to conversion, insert – Subject to the provisions of the
Indenture, each Holder has the right to convert the principal amount of this Security into fully
paid and nonassessable shares of Common Stock of the Company at the initial conversion price per
share of Common Stock of $                      (or $                      in principal amount of Securities for each such share of
Common Stock), or at the adjusted conversion price then in effect, if adjustment has been made as
provided in the Indenture, upon surrender of the Security to the Conversion Agent, together with a
fully executed notice in substantially the form attached hereto and, if required by the Indenture,
an amount equal to accrued interest payable on this Security.]



16









 





     The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all Senior Debt of the
Company, and this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee
his attorney-in-fact for any and all such purposes.



     [If applicable, insert — As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under this Security are guaranteed on a senior
subordinated basis pursuant to the Subsidiary Guarantees endorsed hereon. The Indenture provides
that a Subsidiary Guarantor shall be released from its Subsidiary Guarantee upon compliance with
certain conditions.]



     [If applicable, insert — The Indenture contains provisions for Defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]



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



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



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.



17









 





     As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.



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



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



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



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



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



     All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.



18









 





SECTION 204. Form of Subsidiary Guarantee.




SUBSIDIARY GUARANTEE




     For value received, each of the Subsidiary Guarantors named (or deemed herein to be named)
below hereby jointly and severally fully and unconditionally guarantees to the Holder of the
Security upon which this Subsidiary Guarantee is endorsed, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of (and premium, if any) and interest on such
Security when and as the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, according to the terms thereof
and of the Indenture referred to therein and to cover all the rights of the Trustee under Section
607. In case of the failure of the Company punctually to make any such payment, each of the
Subsidiary Guarantors hereby jointly and severally agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, offer to purchase or otherwise, and as if such payment were made
by the Company.



     Each of the Subsidiary Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, the
validity, regularity or enforceability of such Security or the Indenture, the absence of any action
to enforce the same or any release, amendment, waiver or indulgence granted to the Company or any
other guarantor, or any consent to departure from any requirement of any other guarantee of all or
of any of the Securities of this series, or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however,
that, notwithstanding the foregoing, no such release, amendment, waiver or indulgence shall,
without the consent of such Subsidiary Guarantor, increase the principal amount of such Security,
or increase the interest rate thereon, or alter the Stated Maturity thereof. Each of the
Subsidiary Guarantors hereby waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security
interest in or other lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in such Security and in this Subsidiary
Guarantee. Each Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default with respect to Securities of this series, the Trustee or any of
the Holders are prevented by applicable law from exercising their respective rights to accelerate
the maturity of the Securities of this series, to collect interest on the Securities of this
series, or to enforce or exercise any other right or remedy with respect to the Securities of this
series, such Subsidiary Guarantor agrees to pay to the Trustee for the account of the Holders, upon
demand therefor, the amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.



     The indebtedness of each Subsidiary Guarantor evidenced by this Subsidiary Guarantee is, to
the extent provided in the Indenture, subordinate in right of payment to the prior payment



19









 







in full of all Senior Debt of such Subsidiary Guarantor, and the Subsidiary Guarantee of each
Subsidiary Guarantor is issued subject to the provisions of the Indenture with respect thereto.



     No reference herein to the Indenture and no provision of this Subsidiary Guarantee or of the
Indenture shall alter or impair the Subsidiary Guarantee of any Subsidiary Guarantor, which is
absolute and unconditional, of the due and punctual payment of the principal (and premium, if any)
and interest on the Security upon which this Subsidiary Guarantee is endorsed.



     Each Subsidiary Guarantor shall be subrogated to all rights of the Holder of this Security
against the Company in respect of any amounts paid by such Subsidiary Guarantor on account of this
Security pursuant to the provisions of its Subsidiary Guarantee or the Indenture; provided,
however, that such Subsidiary Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of (and premium, if
any) and interest on this Security and all other Securities of this series issued under the
Indenture shall have been paid in full.



     This Subsidiary Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or reorganization, should
the Company become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any part of the Company’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Securities of this series is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of the
Securities of this series, whether as a “voidable preference,” “fraudulent transfer,” or otherwise,
all as though such payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities of this series shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.



     The Subsidiary Guarantors or any particular Subsidiary Guarantor shall be released from this
Subsidiary Guarantee upon the terms and subject to certain conditions provided in the Indenture.



     By delivery to the Trustee of a supplement to the Indenture referred to in the Security upon
which this Subsidiary Guarantee is endorsed in accordance with the terms of the Indenture, each
Person that becomes a Subsidiary Guarantor after the date of first issuance of the Securities of
this series will be deemed to have executed and delivered this Subsidiary Guarantee for the benefit
of the Holder of the Security upon which this Subsidiary Guarantee is endorsed with the same effect
as if such Subsidiary Guarantor was named below and has executed and delivered this Subsidiary
Guarantee.



     All terms used in this Subsidiary Guarantee which are defined in the Indenture shall have the
meanings assigned to them in such Indenture.



     This Subsidiary Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Subsidiary Guarantee is endorsed
shall have been executed by the Trustee under the Indenture by manual signature.



20









 





     Reference is made to the Indenture for further provisions with respect to this Subsidiary
Guarantee.



     This Subsidiary Guarantee shall be governed by and construed in accordance with the laws of
the State of New York.



     IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this Subsidiary Guarantee to
be duly executed.



	 	 	 	 	 
	 	[Insert Names of Subsidiary Guarantors]

 	 
	 	By:  	 	 
	 	Title: 	 	 
	 	 	 	 
	 



	 	 	 
	Attest:
	 	 
	 
	 	 
	 


	 	 






SECTION 205. Form of Legend for Global Securities.




     Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:




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



SECTION 206. Form of Trustee’s Certificate of Authentication.




     The Trustee’s certificates of authentication shall be in substantially the following form:



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



	 	 	 	 	 
	 	[Trustee’s Name],

     As Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




21









 





SECTION 207. Form of Conversion Notice.




     Each convertible Security shall have attached thereto, or set forth on the reverse of the
Security, a notice of conversion in substantially the following form:



Conversion Notice




To: Superior Well Services, Inc.




     The undersigned owner of this Security hereby: (i) irrevocably exercises the option to
convert this Security, or the portion hereof below designated, for shares of Common Stock of
Superior Well Services, Inc. in accordance with the terms of the Indenture referred to in this
Security and (ii) directs that such shares of Common Stock deliverable upon the conversion,
together with any check in payment for fractional shares and any Security(ies) representing any
unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless
a different name has been indicated below. If shares are to be delivered registered in the name of
a person other than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. Any amount required to be paid by the undersigned on account of interest
accompanies this Security.



	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

       Signature
	 	 






     Fill in for registration of shares if to be delivered, and of Securities if to be issued,
otherwise than to and in the name of the registered holder.



	 	 	 	 	 
	 

	 	 

Social Security or other
	 	 
	 

	 	Taxpayer Identification Number	 	 






	 	 	 
	 

       (Name)

	 	 
	 
	 	 
	 

       (Please print name and address)

	 	 
	 

	 	Principal amount to be converted: (if less than all)
	 

	 	$                                        
	 
	 	 
	Signature Guarantee*
	 	 
	 
	 	 
	 


	 	 








 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature acceptable
to the Trustee).




22









 










ARTICLE THREE




THE SECURITIES




SECTION 301. Amount Unlimited; Issuable in Series.




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



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,




     (1) the title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);




     (2) if the Securities of the series will not have the benefit of the Subsidiary
Guarantees of any Subsidiary Guarantors;




     (3) any change to the subordination provisions which applies to the Securities of the
series from those contained in Article Twelve with respect to the Securities and/or, if
applicable, those contained in Article Fourteen with respect to the Subsidiary Guarantees,
and the definitions of Senior Debt and Designated Senior Debt which shall apply to the
Securities of the series, and, if applicable, the Subsidiary Guarantees;




     (4) any limit upon the aggregate principal amount of the Securities of the series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and
except for any Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);




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




     (6) the date or dates on which the principal of any Securities of the series is
payable;




     (7) the rate or rates at which any Securities of the series shall bear interest, if
any, the date or dates from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;



23









 






     (8) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;




     (9) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;




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




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




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




     (13) if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 101;




     (14) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities are stated
to be payable, the currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is made shall be payable,
the periods within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount shall be determined);




     (15) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;




     (16) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to



24









 







the Stated Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);




     (17) if applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 1502 or Section 1503 or both such Sections and, if
other than by a Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;




     (18) if applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositories for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth in Section
205 and any circumstances in addition to or in lieu of those set forth in clause (2) of the
last paragraph of Section 305 in which any such Global Security may be exchanged in whole
or in part for Securities registered, and any transfer of such Global Security in whole or
in part may be registered, in the name or names of Persons other than the Depositary for
such Global Security or a nominee thereof;




     (19) any addition to or change in the Events of Default which applies to any
Securities of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant
to Section 502;




     (20) any addition to or change in the covenants set forth in Article Ten which applies
to Securities of the series;




     (21) whether the Securities of the series will be convertible into Common Stock (or
cash in lieu thereof) and, if so, the terms and conditions upon which such conversion will
be effected; and




     (22) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto.



     If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.



     The Securities of each series shall have the benefit of the Subsidiary Guarantees unless the
Company elects otherwise upon the establishment of a series pursuant to this Section 301.




25











 





     The Securities shall be subordinated in right of payment to Senior Debt of the Company as
provided in Article Twelve. Each Subsidiary Guarantee shall be subordinated in right of payment to
Senior Debt of the applicable Subsidiary Guarantor as provided in Article Fourteen.



SECTION 302. Denominations.




     The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple thereof.



SECTION 303. Execution, Authentication, Delivery and Dating.




     The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President or one of its Vice
Presidents. If its corporate seal is reproduced thereon, then it shall be attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.



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



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company and, if applicable, having
endorsed thereon the Subsidiary Guarantees executed as provided in Section 1303 by the Subsidiary
Guarantors to the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201
and 301, in authenticating such Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,




     (1) if the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 201, that such form has been established in conformity
with the provisions of this Indenture;




     (2) if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and




     (3) that such Securities, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the



26









 






Company, and, if applicable, the Subsidiary Guarantees endorsed thereon will
constitute valid and legally binding obligations of the Subsidiary Guarantors, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.



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



     Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.



     Each Security shall be dated the date of its authentication.



     No Security or Subsidiary Guarantee shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.



SECTION 304. Temporary Securities.




     Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities and, if applicable, having
endorsed thereon the Subsidiary Guarantees in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing
such Securities and, if applicable, Subsidiary Guarantees may determine, as evidenced by their
execution of such Securities and Subsidiary Guarantees.



     If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to



27









 




the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any authorized denominations and
of like tenor and aggregate principal amount and, if applicable, having endorsed thereon Subsidiary
Guarantees executed by the Subsidiary Guarantors. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.




SECTION 305. Registration, Registration of Transfer and Exchange.




     The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.



     Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, if
applicable the Subsidiary Guarantors shall execute the Subsidiary Guarantees endorsed thereon and
the Trustee shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount.



     At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the Subsidiary Guarantees endorsed thereon and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.



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



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.



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



28









 




exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or otherwise
not involving any transfer.




     If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.



     The provisions of clauses (1), (2), (3) and (4) below shall apply only to Global Securities:




     (1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.




     (2) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency registered under the Exchange
Act, and in either case the Company fails to appoint a successor Depositary within 90 days,
(B) there shall have occurred and be continuing an Event of Default with respect to such
Global Security and the Depositary shall have notified the Trustee of its decision to
exchange such Global Security for Securities in certificated form or (C) there shall exist
such circumstances, if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.




     (3) Subject to clause (2) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such names as the Depositary
for such Global Security shall direct.




     (4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to
this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global Security or a
nominee thereof.



SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.




     If any mutilated Security is surrendered to the Trustee, the Company shall execute, if
applicable the Subsidiary Guarantors shall execute the Subsidiary Guarantees endorsed thereon



29









 




and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.




     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless from any loss that
any of them may suffer if a Security is replaced, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall
execute, if applicable the Subsidiary Guarantors shall execute the Subsidiary Guarantees endorsed
thereon and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable or is to be converted, the Company in its discretion may, instead of issuing
a new Security, pay or authorize the conversion of such Security (without surrender thereof save in
the case of a mutilated Security).



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



     Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, and, if applicable, the Subsidiary Guarantees endorsed thereon, shall
constitute an original additional contractual obligation of the Company and, if applicable, the
respective Subsidiary Guarantors, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly issued hereunder.



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



SECTION 307. Payment of Interest; Interest Rights Preserved.




     Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.



     Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:



30









 






     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder of Securities of
such series in the manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).




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



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



SECTION 308. Persons Deemed Owners.




     Prior to due presentment of a Security for registration of transfer, the Company, any
Subsidiary Guarantor, the Trustee and any agent of the Company, any Subsidiary Guarantor or the
Trustee may treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, any Subsidiary Guarantor, the Trustee nor any
agent of the Company, any Subsidiary Guarantor, or the Trustee shall be affected by notice to the
contrary.



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SECTION 309. Cancellation.




     All Securities surrendered for payment, redemption, purchase, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.



SECTION 310. Computation of Interest.




     Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.



ARTICLE FOUR




SATISFACTION AND DISCHARGE




SECTION 401. Satisfaction and Discharge of Indenture.




     This Indenture shall upon Company Request cease to be of further effect with respect to the
Securities of any series, and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when




     (1) either




     (A) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and (ii) Securities
of such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or




     (B) all such Securities of such series not theretofore delivered to the Trustee
for cancellation




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturity within one
year, or



32









 






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




and the Company or, if applicable, a Subsidiary Guarantor, in the case of (i), (ii)
or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose money in an amount sufficient, without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on such Securities 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 Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;




     (2) the Company, if applicable, or a Subsidiary Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company and the Subsidiary Guarantors with
respect to the Securities of such series; and




     (3) 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 the Securities of such series
have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, any surviving rights of conversion, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.



SECTION 402. Application of Trust Money.




     Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.



ARTICLE FIVE




REMEDIES




SECTION 501. Events of Default.




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



33









 




effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):





     (1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or




     (2) default in the payment of the principal of or any premium on any Security of that
series at its Maturity; or




     (3) default in the deposit of any sinking fund payment, when and as due by the terms
of a Security of that series; or




     (4) default in the performance, or breach, of any covenant of the Company or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the Securities of
such series, any Subsidiary Guarantor in Article Eight of this Indenture; or




     (5) default in the performance, or breach, of any covenant or warranty of the Company
or, if the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, any Subsidiary Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or




     (6) debt of the Company, any Significant Subsidiary or, if the Subsidiary Guarantors
have issued Subsidiary Guarantees with respect to the Securities of such series, any
Subsidiary Guarantor is not paid within any applicable grace period after final maturity or
is accelerated by the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $20.0 million, or its foreign currency
equivalent at the time; or




     (7) any judgment or decree for the payment of money in excess of $20.0 million or its
foreign currency equivalent at the time it is entered against the Company, any Significant
Subsidiary or, if the Subsidiary Guarantors have issued Subsidiary Guarantees with respect
to the Securities of such series, any Subsidiary Guarantor, remains outstanding for a
period of 60 consecutive days following the entry of such judgment or decree and is not
discharged, waived or the execution thereof stayed; or




     (8) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company, any Significant Subsidiary or, if the Subsidiary
Guarantors have issued Subsidiary Guarantees with respect to the Securities of such series,
any Subsidiary Guarantor in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law



34









 






or (B) a decree or order adjudging the Company, any Significant Subsidiary or any such
Subsidiary Guarantor a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company, any Significant Subsidiary or any such Subsidiary Guarantor under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, any Significant Subsidiary or any
such Subsidiary Guarantor or of any substantial part of its or their property, or ordering
the winding up or liquidation of its or their affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or




     (9) the commencement by the Company, any Significant Subsidiary or, if the Subsidiary
Guarantors have issued Subsidiary Guarantees with respect to the Securities of such series,
any Subsidiary Guarantor of a voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it or them to the
entry of a decree or order for relief in respect of the Company, any Significant Subsidiary
or any such Subsidiary Guarantor in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it or them, or the
filing by it or them of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it or them to the filing of
such petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company, any
Significant Subsidiary or any such Subsidiary Guarantor or of any substantial part of its
or their property, or the making by it or them of an assignment for the benefit of
creditors, or the admission by it or them in writing of its or their inability to pay its
or their debts generally as they become due, or the taking of corporate action by the
Company, any Significant Subsidiary or any such Subsidiary Guarantor in furtherance of any
such action; or




     (10) in the event the Subsidiary Guarantors have issued Subsidiary Guarantees with
respect to the Securities of such series, the Subsidiary Guarantee of any Subsidiary
Guarantor is held by a final non-appealable order or judgment of a court of competent
jurisdiction to be unenforceable or invalid or ceases for any reason to be in full force
and effect (other than in accordance with the terms of this Indenture) or any Subsidiary
Guarantor or any Person acting on behalf of any Subsidiary Guarantor denies or disaffirms
such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee (other than by
reason of a release of such Subsidiary Guarantor from its Subsidiary Guarantee in
accordance with the terms of this Indenture); or




     (11) any other Event of Default provided with respect to Securities of that series.



35









 





SECTION 502. Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default (other than an Event of Default with respect to the Company specified
in Section 501(8) or 501(9)) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of that series may declare the principal amount
of all the Securities of that series (or, if any Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as may be specified by
the terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default with respect to the
Company specified in Section 501(8) or 501 (9) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.



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




     (1) the Company or, if applicable, any Subsidiary Guarantor has paid or deposited with
the Trustee a sum sufficient to pay




     (A) all overdue interest on all Securities of that series,




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




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




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


and




     (2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 513.


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




36









 








SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.




     The Company covenants that if




     (1) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or




     (2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,


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




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



SECTION 504. Trustee May File Proofs of Claim.




     In case of any judicial proceeding relative to the Company, any Subsidiary Guarantor or any
other obligor upon the Securities, or the property or creditors of the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.



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



37









 





SECTION 505. Trustee May Enforce Claims Without Possession of Securities.




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



SECTION 506. Application of Money Collected.




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




     FIRST: To the payment of all amounts due the Trustee under Section 607;




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




     THIRD: The balance, if any, to the Company or to such other Person as a court of
competent jurisdiction shall direct.



SECTION 507. Limitation on Suits.




     No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless




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




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




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




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



38









 






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


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




SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.




     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or offer by the Company to purchase the
Securities pursuant to the terms of this Indenture, on the Redemption Date or purchase date, as
applicable) and, if applicable, to convert such Security in accordance with its terms, and to
institute suit for the enforcement of any such right, and such rights shall not be impaired without
the consent of such Holder.



SECTION 509. Restoration of Rights and Remedies.




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



SECTION 510. Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



SECTION 511. Delay or Omission Not Waiver.




     No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and



39









 




remedy given by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.




SECTION 512. Control by Holders.




     The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that




     (1) such direction shall not be in conflict with any rule of law or with this
Indenture, and




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



SECTION 513. Waiver of Past Defaults.




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




     (1) in the payment of the principal of or any premium or interest on any Security of
such series (including any Security which is required to have been purchased by the Company
pursuant to an offer to purchase by the Company made pursuant to the terms of this
Indenture), or




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



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



SECTION 514. 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, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or any Subsidiary Guarantor.



40









 





SECTION 515. Waiver of Usury, Stay or Extension Laws.




     Each of the Company and, if applicable, the Subsidiary Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Company and any Subsidiary Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law had been enacted.



ARTICLE SIX




THE TRUSTEE




SECTION 601. Certain Duties and Responsibilities.




     The duties and responsibilities of the Trustee shall be as expressly set forth in this
Indenture and as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.



SECTION 602. Notice of Defaults.




     If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(5) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.



SECTION 603. Certain Rights of Trustee.




     Subject to the provisions of Section 601:




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



41









 






     (2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;




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




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




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




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




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



SECTION 604. Not Responsible for Recitals or Issuance of Securities.




     The recitals contained herein and in the Securities and the Subsidiary Guarantees, except the
Trustee’s certificates of authentication, shall be taken as the statements of the Company or any
Subsidiary Guarantors, as the case may be, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities or the Subsidiary Guarantees
endorsed thereon. Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.



SECTION 605. May Hold Securities.




     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or any Subsidiary Guarantor, in its individual or any other capacity,



42









 




may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company and any Subsidiary Guarantor with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.




SECTION 606. Money Held in Trust.




     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or any Subsidiary Guarantor,
as the case may be.



SECTION 607. Compensation and Reimbursement.




     The Company agrees, or, if any Subsidiary Guarantor has issued Subsidiary Guarantees with
respect to the Securities of any series then Outstanding, the Company and each Subsidiary Guarantor
jointly and severally agree




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




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




     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder.



SECTION 608. Conflicting Interests.




     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one
series.



SECTION 609. Corporate Trustee Required; Eligibility.




     There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other



43









 




series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such, and has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.




SECTION 610. Resignation and Removal; Appointment of Successor.




     No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.



     The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.



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



     If at any time:




     (1) the Trustee shall fail to comply with Section 608 after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Security for at least
six months, or




     (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or




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


then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.




44









 








     If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.



SECTION 611. Acceptance of Appointment by Successor.




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



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, any Subsidiary Guarantors, the retiring Trustee and
each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with



45









 




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




     Upon request of any such successor Trustee, the Company and any Subsidiary Guarantors shall
execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.



SECTION 612. Merger, Conversion, Consolidation or Succession to Business.




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



SECTION 613. Preferential Collection of Claims Against Company and Any Subsidiary Guarantors.




     If and when the Trustee shall be or become a creditor of the Company, any Subsidiary Guarantor
or any other obligor upon the Securities, the Trustee shall be subject to the provisions



46









 




of the Trust Indenture Act regarding the collection of claims against the Company, such
Subsidiary Guarantor or any such other obligor.




SECTION 614. Appointment of Authenticating Agent.




     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer, conversion
or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a Person organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.



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



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.



47









 





     The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.



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



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



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[Trustee’s Name],	 	 	 	 
	 	 	            As Trustee	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	, 	 		 
	 

	 	 	 	 

As Authenticating Agent
	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	,	 		 
	 

	 	 	 	 

Authorized Officer
	 	 	 	 






ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.




     The Company will furnish or cause to be furnished to the Trustee with respect to the
Securities of each series:




     (1) not more than 10 days after each record date with respect to the payment of
interest, if any, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of such record date, and




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



     excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.



48









 





SECTION 702. Preservation of Information; Communications to Holders.




     The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.



     The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.



     Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, any Subsidiary Guarantors nor the Trustee nor any agent of any of
them shall be held accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.



SECTION 703. Reports by Trustee.




     The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.



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



SECTION 704. Reports by Company and Subsidiary Guarantors.




     The Company and, if applicable, each of the Subsidiary Guarantors shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is so required to be filed with the
Commission.



ARTICLE EIGHT




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.




     The Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge into any other Person or permit any other Person to consolidate with or
merge into the Company or, directly or indirectly, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its assets, unless:



49









 






     (1) in a transaction in which the Company does not survive or in which the Company
transfers, conveys, sells, leases or otherwise disposes of all or substantially all of its
assets, the successor entity (for purposes of this Article Eight, a “Successor Company”)
shall be a corporation, partnership, trust or other entity organized and validly existing
under the laws of the United States of America, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the Company to be
performed or observed;




     (2) immediately before and after giving pro forma effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a
result of such transaction as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be continuing;




     (3) if, as a result of any such consolidation or merger or such transfer, conveyance,
sale, lease or other disposition, properties or assets of the Company would become subject
to a mortgage, pledge, lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or the Successor Company, as the case may be,
shall take such steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby;




     (4) any other conditions provided pursuant to Section 301 with respect to the
Securities of a series are satisfied; and




     (5) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, transfer, conveyance, sale, lease
or other disposition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied with.



SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms.




     Except in a transaction resulting in the release of a Subsidiary Guarantor in accordance with
the terms of this Indenture, each Subsidiary Guarantor shall not, and the Company shall not permit
any Subsidiary Guarantor to, in a single or a series of related transactions, consolidate or merge
with or into any Person (other than the Company or another Subsidiary Guarantor) or permit any
Person (other than another Subsidiary Guarantor) to consolidate or merge with or into such
Subsidiary Guarantor or, directly or indirectly, transfer, convey, sell, lease or otherwise dispose
of all or substantially all of its assets unless, in each case:




     (1) in a transaction in which such Subsidiary Guarantor does not survive or in which
all or substantially all of the assets of such Subsidiary Guarantor are transferred,



50









 






conveyed, sold, leased or otherwise disposed of, the successor entity (the “Successor
Subsidiary Guarantor”) shall be a corporation, partnership, trust or other entity organized
and validly existing under the laws of the United States of America, any State thereof or
the District of Columbia, and shall expressly assume by an indenture supplemental hereto
executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of all obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee and this Indenture and the performance of every covenant of this Indenture on the
part of such Subsidiary Guarantor to be performed or observed; and




     (2) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, transfer, conveyance, sale, lease
or other disposition and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied with.



SECTION 803. Successor Substituted.




     (a) Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any transfer, conveyance, sale, lease or other disposition of all or substantially all of
the assets of the Company in accordance with Section 801, the Successor Company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.



     (b) Upon any consolidation of any Subsidiary Guarantor with, or merger of such Subsidiary
Guarantor into, any other Person or any transfer, conveyance, sale, lease or other disposition of
all or substantially all of the assets of such Subsidiary Guarantor in accordance with Section 802,
the Successor Subsidiary Guarantor shall succeed to, and be substituted for, and may exercise every
right and power of, such Subsidiary Guarantor under this Indenture with the same effect as if such
successor Person had been named as a Subsidiary Guarantor herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and its Subsidiary Guarantee.



ARTICLE NINE




SUPPLEMENTAL INDENTURES




SECTION 901. Supplemental Indentures Without Consent of Holders.




     Without the consent of any Holders, the Company, when authorized by a Board Resolution, any
Subsidiary Guarantors, when authorized by their respective Board Resolutions, and the Trustee, at
any time and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:




     (1) to evidence the succession of another Person to the Company or any Subsidiary
Guarantor and the assumption by any such successor of the covenants of the



51









 






Company or any Subsidiary Guarantor herein and in the Securities or Subsidiary
Guarantees, as the case may be; or




     (2) to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or




     (3) to add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such series); or




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




     (5) to add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision nor (ii) modify
the rights of the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or




     (6) to secure the Securities; or




     (7) to establish the form or terms of Securities of any series as permitted by
Sections 201 and 301; or




     (8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611; or




     (9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or




     (10) to make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (10) shall not adversely
affect the interests of the Holders of Securities of any series in any material respect; or




     (11) to add new Subsidiary Guarantors.




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SECTION 902. Supplemental Indentures With Consent of Holders.




     With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company, any Subsidiary Guarantors and the Trustee, the Company, when
authorized by a Board Resolution, any Subsidiary Guarantors, when authorized by their respective
Board Resolutions and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby:




     (1) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any other Security which would
be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of (a) any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or in the case of an offer
to purchase Securities which has been made pursuant to a covenant contained in this
Indenture, on or after the applicable purchase date), or (b) any conversion right with
respect to any Security, or modify the provisions of this Indenture with respect to the
conversion or subordination of the Securities or the Subsidiary Guarantees, in a manner
adverse to the Holders, or release any Subsidiary Guarantee other than as provided in this
Indenture; or




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




     (3) modify any of the provisions of this Section, Section 513 or Section 1009, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to
“the Trustee” and concomitant changes in this Section and Section 1009, or the deletion of
this proviso, in accordance with the requirements of Sections 611 and 901(8); or




     (4) following the making of an offer to purchase Securities from any Holder which has
been made pursuant to a covenant contained in this Indenture, modify the provisions of this
Indenture with respect to such offer to purchase in a manner adverse to such Holder.



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



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



SECTION 903. Execution of Supplemental Indentures.




     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



SECTION 904. Effect of Supplemental Indentures.




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



SECTION 905. Conformity with Trust Indenture Act.




     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.



SECTION 906. Reference in Securities to Supplemental Indentures.




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



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ARTICLE TEN




COVENANTS




SECTION 1001. Payment of Principal, Premium and Interest.




     The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture. Principal, premium, if
any, and interest shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 11:00 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.



SECTION 1002. Maintenance of Office or Agency.




     The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment or, if
applicable, for conversion, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company or any Subsidiary
Guarantor in respect of the Securities of that series or any Subsidiary Guarantee and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company and each Subsidiary Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.



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



SECTION 1003. Money for Securities Payments to Be Held in Trust.




     If the Company or any Subsidiary Guarantor shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the principal of or any
premium or interest on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so to act.



55









 





     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to 11:00 A.M., New York City time, on each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.



     The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company, the Subsidiary Guarantors, if applicable, or any other
obligor upon the Securities of that series in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the Securities of that
series.



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



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.



SECTION 1004. Statement by Officers as to Default.




     (a) The Company and any Subsidiary Guarantors will deliver to the Trustee, within 90 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 best knowledge of the signers thereof the Company or any
Subsidiary Guarantor, as the case may be, is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company or any



56









 







Subsidiary Guarantor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.



     (b) The Company and each Subsidiary Guarantor shall deliver to the Trustee, as soon as
possible and in any event within five days after the Company or such Subsidiary Guarantor becomes
aware or should reasonably become aware of the occurrence of an Event of Default or an event which,
with notice or the lapse of time or both, would constitute an Event of Default, an Officers’
Certificate setting forth the details of such Event of Default or default, and the action which the
Company or such Subsidiary Guarantor proposes to take with respect thereto.



SECTION 1005. Existence.




     Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be required to preserve
any such right or franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.



SECTION 1006. Maintenance of Properties.




     The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the operation or maintenance
of any of such properties if such discontinuance is, in the judgment of the Company, desirable in
the conduct of its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.



SECTION 1007. Payment of Taxes and Other Claims.




     The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.



SECTION 1008. Maintenance of Insurance.




     The Company shall, and shall cause its Subsidiaries to, keep at all times all of their
properties which are of an insurable nature insured against loss or damage with insurers believed
by the Company to be responsible to the extent that property of similar character is usually so



57









 







insured by corporations similarly situated and owning like properties in accordance with good
business practice.



SECTION 1009. Waiver of Certain Covenants.




     Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any of Sections 1005 through 1008 or in
any covenant provided pursuant to Section 301(22), 901(2) or 901(7) for the benefit of the Holders
of such series if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.



ARTICLE ELEVEN




REDEMPTION OF SECURITIES




SECTION 1101. Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.



SECTION 1102. Election to Redeem; Notice to Trustee.




     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least five Business
Days prior to giving notice of such redemption (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such
restriction.



SECTION 1103. Selection by Trustee of Securities to Be Redeemed.




     If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, (i) in compliance
with the requirements of the principal national securities exchange on which such Securities are



58









 







listed, if such Securities are listed on any national securities exchange, and (ii) if such
Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected by the Trustee, from
the Outstanding Securities of such series and specified tenor not previously called for redemption
in accordance with the preceding sentence.



     The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.



     The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed. If any Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Upon any redemption of less than all the
Securities of a series, for purposes of selection for redemption the Company and the Trustee may
treat as Outstanding Securities surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as Outstanding any Security
authenticated and delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.



SECTION 1104. Notice of Redemption.




     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register; provided, however, notice of redemption may be
given more than 60 days prior to the Redemption Date if the notice is issued in connection with a
satisfaction and discharge pursuant to Article Four.



     All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price, if then determinable and otherwise the method of its
determination,



59









 






     (3) if less than all the Outstanding Securities of any series consisting of more than
a single Security are to be redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of the particular Security to be
redeemed,




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




     (5) the place or places where each such Security is to be surrendered for payment of
the Redemption Price,




     (6) that the redemption is for a sinking fund, if such is the case, and




     (7) if applicable, the conversion price then in effect and the date on which the right
to convert such Securities will expire.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable. If any Security called for redemption is converted pursuant
hereto, any money deposited with the Trustee or any Paying Agent or so segregated and held in trust
for the redemption of such Security shall be paid to the Company upon delivery of a Company Request
to the Trustee or such Paying Agent, or, if then held by the Company, shall be discharged from such
trust.



SECTION 1105. Deposit of Redemption Price.




     Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.



SECTION 1106. Securities Payable on Redemption Date.




     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section 307.



60









 





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



SECTION 1107. Securities Redeemed in Part.




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



ARTICLE TWELVE




SUBORDINATION OF SECURITIES




SECTION 1201. Applicability of Article.




     Unless otherwise provided with respect to the Securities of any series in or pursuant to the
Board Resolution or supplemental indenture establishing such series of Securities pursuant to
Section 301, the provisions of this Article shall be applicable to each series of Securities.



SECTION 1202. Securities Subordinate to Senior Debt.




     The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article Four and Article Fifteen), the payment of the
principal of (and premium, if any) and interest on each and all of the Securities of such series
are hereby expressly made subordinate and subject in right of payment to the prior payment in full
of all Senior Debt of the Company.



     No provisions of this Article Twelve shall prevent the occurrence of any Event of Default.



SECTION 1203. Payment Over of Proceeds Upon Dissolution, Etc.




     In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as a “Proceeding”) the
holders of Senior Debt of the Company shall be entitled to receive payment in full of all



61









 







amounts due or to become due on or in respect of all Senior Debt of the Company, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt of the Company, before the Holders of the Securities are entitled to
receive any payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a “Junior Subordinated Payment”), on
account of principal of (or premium, if any) or interest on the Securities or on account of any
purchase or other acquisition of Securities by the Company or any Subsidiary of the Company (all
such payments, distributions, purchases and acquisitions, other than the payment or distribution of
stock or securities of the Company referred to in the second succeeding paragraph, herein referred
to, individually and collectively, as a “Securities Payment”), and to that end the holders of
Senior Debt of the Company shall be entitled to receive, for application to the payment thereof,
any Securities Payment which may be payable or deliverable in respect of the Securities in any such
Proceeding.



     In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any Securities Payment before all Senior Debt of the
Company is paid in full or payment thereof provided for in cash or cash equivalents or otherwise in
a manner satisfactory to the holders of Senior Debt of the Company, and if such fact shall, at or
prior to the time of such Securities Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Securities Payment shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for application to the
payment of all Senior Debt of the Company remaining unpaid, to the extent necessary to pay all
Senior Debt of the Company in full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Debt of the Company.



     For purposes of this Article only, the words “any payment or distribution of any kind or
character, whether in cash, property or securities” shall not be deemed to include a payment or
distribution of stock or securities of the Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other corporation provided
for by such plan of reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt of the Company to substantially the same
extent as the Securities are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the liquidation or dissolution
of the Company following the conveyance or transfer of all or substantially all of its assets to
another Person upon the terms and conditions set forth in Article Eight shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or transfer such assets, as
the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article Eight.



62









 





SECTION 1204. No Payment When Senior Debt of the Company in Default.




     In the event that any Senior Payment Default (as defined below) shall have occurred and be
continuing, then no Securities Payment shall be made unless and until such Senior Payment Default
shall have been cured or waived or shall have ceased to exist or all amounts then due and payable
in respect of Senior Debt of the Company shall have been paid in full, or provision shall have been
made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article Sixteen by
delivering and crediting pursuant to Section 1602 Securities which have been acquired (upon
redemption or otherwise) prior to such Senior Payment Default.



     “Senior Payment Default” means any default in the payment of principal of (or premium, if any)
or interest on any Senior Debt of the Company when due, whether at the Stated Maturity of any such
payment or by declaration of acceleration, call for redemption or otherwise.



     In the event that any Senior Nonmonetary Default (as defined below) shall have occurred and be
continuing, then, upon the receipt by the Company, the Subsidiary Guarantors and the Trustee of
written notice of such Senior Nonmonetary Default from the agent for the Designated Senior Debt
which is the subject of such Senior Nonmonetary Default, no Securities Payment shall be made during
the period (the “Payment Blockage Period”) commencing on the date of such receipt of such written
notice and ending on the earlier of (i) the date on which such Senior Nonmonetary Default shall
have been cured or waived or shall have ceased to exist or all Designated Senior Debt the subject
of such Senior Nonmonetary Default shall have been discharged; (ii) the 179th day after the date of
such receipt of such written notice; or (iii) the date on which the Payment Blockage Period shall
have been terminated by written notice to the Company, any Subsidiary Guarantor or the Trustee from
the agent for the Designated Senior Debt initiating the Payment Blockage Period; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Sixteen by delivering and crediting pursuant to Section 1602 Securities
which have been acquired (upon redemption or otherwise) prior to the date of such receipt of such
written notice. No more than one Payment Blockage Period may be commenced with respect to the
Securities of a particular series during any 360-day period and there shall be a period of at least
181 consecutive days in each 360-day period when no Payment Blockage Period is in effect. For all
purposes of this paragraph, no Senior Nonmonetary Default that existed or was continuing on the
date of commencement of any Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period, whether or not within a period of 360
consecutive days, unless such Senior Nonmonetary Default shall have been cured for a period of not
less than 90 consecutive days.



     “Senior Nonmonetary Default” means the occurrence or existence and continuance of any event of
default with respect to any Designated Senior Debt, other than a Senior Payment Default, permitting
the holders of such Designated Senior Debt (or a trustee or agent on behalf of the holders thereof)
to declare such Designated Senior Debt due and payable prior to the date on which it would
otherwise become due and payable.



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     In the event that, notwithstanding the foregoing, the Company shall make any Securities
Payment to the Trustee or any Holder prohibited by the foregoing provisions of this Section, and if
such fact shall, at or prior to the time of such Securities Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such Securities Payment shall
be paid over and delivered forthwith to the Company.



     The provisions of this Section shall not apply to any Securities Payment with respect to which
Section 1203 would be applicable.



SECTION 1205. Payment Permitted If No Default.




     Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any Proceeding referred to
in Section 1203 or under the conditions described in Section 1204, from making Securities Payments,
or (b) the application by the Trustee of any money deposited with it hereunder to Securities
Payments or the retention of such Securities Payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such Securities Payment would have been
prohibited by the provisions of this Article.



SECTION 1206. Subrogation to Rights of Holders of Senior Debt of the Company.




     Subject to the payment in full of all amounts due or to become due on or in respect of Senior
Debt of the Company, or the provision for such payment in cash or cash equivalents or otherwise in
a manner satisfactory to the holders of Senior Debt of the Company, the Holders of the Securities
shall be subrogated to the rights of the holders of such Senior Debt of the Company to receive
payments and distributions of cash, property and securities applicable to the Senior Debt of the
Company until the principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of the Company of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of Senior Debt of the
Company by Holders of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt of the Company and the Holders of the Securities, be deemed to be
a payment or distribution by the Company to or on account of the Senior Debt of the Company.



SECTION 1207. Provisions Solely to Define Relative Rights.




     The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior Debt of the Company on the
other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other than holders of
Senior Debt of the Company and the Holders of the Securities, the obligation of the Company, which
is absolute and unconditional (and which, subject to the rights under this Article of the holders
of Senior Debt of the Company, is intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and



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payable in accordance with their terms; or (b) affect the relative rights against the Company
of the Holders of the Securities and creditors of the Company other than the holders of Senior Debt
of the Company; or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Debt of the Company to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such Holder.



SECTION 1208. Trustee to Effectuate Subordination.




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



SECTION 1209. No Waiver of Subordination Provisions.




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



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



SECTION 1210. Notice to Trustee.




     The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder of Senior Debt of
the Company or from any trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in



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all respects to assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any) or interest on any
Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice to the contrary which may be received by
it within three Business Days prior to such date.



     Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt
of the Company (or a trustee therefor) to establish that such notice has been given by a holder of
Senior Debt of the Company (or a trustee therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any Person as a holder of
Senior Debt of the Company to participate in any payment or distribution pursuant to this Article,
the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Debt of the Company held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.



SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent.




     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 601, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose
of ascertaining the Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt of the Company and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.



SECTION 1212. Trustee Not Fiduciary for Holders of Senior Debt of the Company.




     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of the
Company and shall not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company, a Subsidiary Guarantor or to any other
Person cash, property or securities to which any holders of Senior Debt of the Company shall be
entitled by virtue of this Article or otherwise.



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SECTION 1213. Rights of Trustee as Holder of Senior Debt of the Company; Preservation of Trustee’s Rights.




     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt of the Company which may at any time be held by it, to the
same extent as any other holder of Senior Debt of the Company, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.



     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.



SECTION 1214. Article Applicable to Paying Agents.




     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that Section 1213
shall not apply to the Company, any Subsidiary Guarantor or any Affiliate of the Company if it or
such Subsidiary Guarantor or Affiliate acts as Paying Agent.



SECTION 1215. Defeasance of this Article Twelve.




     The subordination of the Securities of a series provided by this Article Twelve is expressly
made subject to the provisions for Defeasance or Covenant Defeasance in Article Fifteen hereof and,
anything herein to the contrary notwithstanding, upon the effectiveness of any such Defeasance or
Covenant Defeasance, the Securities of such series then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.



ARTICLE THIRTEEN




SUBSIDIARY GUARANTEES




SECTION 1301. Applicability of Article.




     Notwithstanding any provision of this Article 13 to the contrary, the provisions of this
Article 13 shall be applicable to, and inure solely to the benefit of, the Securities of any series
designated, pursuant to Section 301, as entitled to the benefits of the Subsidiary Guarantee of any
Subsidiary Guarantor.



SECTION 1302. Subsidiary Guarantees.




     Subject to Section 1301, each Subsidiary Guarantor hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee,
the due and punctual payment of the principal of (and premium, if any) and interest on such
Security when and as the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, in accordance with the terms of
such Security and of this Indenture, and each Subsidiary Guarantor similarly



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guarantees to the Trustee the payment of all amounts owing to the Trustee in accordance with
the terms of this Indenture. In case of the failure of the Company punctually to make any such
payment, each Subsidiary Guarantor hereby, jointly and severally, agrees to cause such payment to
be made punctually when and as the same shall become due and payable, whether at the Stated
Maturity or by acceleration, call for redemption, offer to purchase or otherwise, and as if such
payment were made by the Company.



     Each of the Subsidiary Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be absolute, unconditional, irrespective of, and shall be unaffected by, the
validity, regularity or enforceability of such Security or this Indenture, the absence of any
action to enforce the same or any release, amendment, waiver or indulgence granted to the Company
or any guarantor or any consent to departure from any requirement of any other guarantee of all or
any of the Securities of such series or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor; provided, however, that,
notwithstanding the foregoing, no such release, amendment, waiver or indulgence shall, without the
consent of such Subsidiary Guarantor, increase the principal amount of such Security, or increase
the interest rate thereon, or alter the Stated Maturity thereof. Each of the Subsidiary Guarantors
hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the
Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other
lien on any property subject thereto or exhaust any right or take any action against the Company or
any other Person or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest or
notice with respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged in respect of such
Security except by complete performance of the obligations contained in such Security and in such
Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the occurrence and during
the continuance of an Event of Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the maturity of the Securities
of a series, to collect interest on the Securities of a series, or to enforce or exercise any other
right or remedy with respect to the Securities of a series, such Subsidiary Guarantor agrees to pay
to the Trustee for the account of the Holders, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been permitted to be exercised by
the Trustee or any of the Holders.



     The indebtedness of each Subsidiary Guarantor evidenced by the Subsidiary Guarantees is, to
the extent provided in this Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of each Subsidiary Guarantor, and the Subsidiary Guarantees are
issued subject to the provisions of this Indenture with respect thereto. Each Holder of such
Security, by accepting the same, will be deemed to have (a) agreed to and be bound by such
provisions, (b) authorized and directed the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c) appointed the Trustee
his attorney-in-fact for any and all such purposes.



     Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of the Securities
upon which its Subsidiary Guarantee is endorsed against the Company in respect of any amounts paid
by such Subsidiary Guarantor on account of such Security pursuant to the provisions of its
Subsidiary Guarantee or this Indenture; provided, however, that no Subsidiary



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Guarantor shall be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if any) and interest on all
Securities of the relevant series issued hereunder shall have been paid in full.



     Each Subsidiary Guarantor that makes or is required to make any payment in respect of its
Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to
the extent permitted by applicable law; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
contribution until the principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.



     Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or reorganization, should
the Company become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any part of the Company’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Securities of a series, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of the
Securities, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or any part thereof,
is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.



SECTION 1303. Execution and Delivery of Subsidiary Guarantees.




     The Subsidiary Guarantees to be endorsed on the Securities shall include the terms of the
Subsidiary Guarantee set forth in Section 1302 and any other terms that may be set forth in the
form established pursuant to Section 204. Subject to Section 1301, each of the Subsidiary
Guarantors hereby agrees to execute its Subsidiary Guarantee, in a form established pursuant to
Section 204, to be endorsed on each Security authenticated and delivered by the Trustee.



     The Subsidiary Guarantee shall be executed on behalf of each respective Subsidiary Guarantor
by any one of such Subsidiary Guarantor’s Chairman of the Board of Directors, Vice Chairman of the
Board of Directors, Chief Executive Officer, President, one of its Vice Presidents, its Treasurer
or its Secretary. The signature of any or all of these persons on the Subsidiary Guarantee may be
manual or facsimile.



     A Subsidiary Guarantee bearing the manual or facsimile signature of individuals who were at
any time the proper officers of a Subsidiary Guarantor shall bind such Subsidiary Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of the Security on which such Subsidiary Guarantee is endorsed or did
not hold such offices at the date of such Subsidiary Guarantee.



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee endorsed thereon on behalf of the Subsidiary
Guarantors and shall bind each Subsidiary Guarantor notwithstanding the fact that



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Subsidiary Guarantee does not bear the signature of such Subsidiary Guarantor. Each of the
Subsidiary Guarantors hereby jointly and severally agrees that its Subsidiary Guarantee set forth
in Section 1302 and in the form of Subsidiary Guarantee established pursuant to Section 204 shall
remain in full force and effect notwithstanding any failure to endorse a Subsidiary Guarantee on
any Security.



SECTION 1304. Release of Subsidiary Guarantors.




     Unless otherwise specified pursuant to Section 301 with respect to a series of Securities,
each Subsidiary Guarantee will remain in effect with respect to the respective Subsidiary Guarantor
until the entire principal of, premium, if any, and interest on the Securities to which such
Subsidiary Guarantee relates shall have been paid in full or otherwise satisfied and discharged in
accordance with the provisions of such Securities and this Indenture and all amounts owing to the
Trustee hereunder have been paid; provided, however, that if (i) such Subsidiary Guarantor ceases
to be a Subsidiary in compliance with the applicable provisions of this Indenture, (ii) either
Defeasance or Covenant Defeasance occurs with respect to such Securities pursuant to Article
Fifteen or (iii) all or substantially all of the assets of such Subsidiary Guarantor or all of the
Capital Stock of such Subsidiary Guarantor is sold (including by sale, merger, consolidation or
otherwise) by the Company or any Subsidiary in a transaction complying with the requirements of
this Indenture, then, in each case of (i), (ii) or (iii), upon delivery by the Company of an
Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent herein
provided for relating to the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee and this Article Thirteen have been complied with, such Subsidiary Guarantor
shall be released and discharged of its obligations under its Subsidiary Guarantee and under this
Article Thirteen without any action on the part of the Trustee or any Holder, and the Trustee shall
execute any documents reasonably required in order to acknowledge the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee endorsed on the Securities of such
series and under this Article Thirteen.



SECTION 1305. Additional Subsidiary Guarantors.




     Unless otherwise specified pursuant to Section 301 with respect to a series of Securities, the
Company will cause any domestic Subsidiary of the Company that becomes a Subsidiary after the date
the Securities of a series are first issued hereunder to become a Subsidiary Guarantor as soon as
practicable after such Subsidiary becomes a Subsidiary. The Company shall cause any such
Subsidiary to become a Subsidiary Guarantor with respect to the Securities by executing and
delivering to the Trustee (a) a supplemental indenture, in form and substance satisfactory to the
Trustee, which subjects such Person to the provisions (including the representations and
warranties) of this Indenture as a Subsidiary Guarantor and (b) an Opinion of Counsel to the effect
that such supplemental indenture has been duly authorized and executed by such Person and such
supplemental indenture and such Person’s obligations under its Subsidiary Guarantee and this
Indenture constitute the legal, valid, binding and enforceable obligations of such Person (subject
to such customary exceptions concerning creditors’ rights and equitable principles as may be
acceptable to the Trustee in its discretion).



SECTION 1306. Limitation on Liability.




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     Any term or provision of this Indenture to the contrary notwithstanding, the maximum amount of
the Subsidiary Guarantee of any Subsidiary Guarantor shall not exceed the maximum amount that can
be hereby guaranteed by such Subsidiary Guarantor without rendering such Subsidiary Guarantee
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.



ARTICLE FOURTEEN




SUBORDINATION OF SUBSIDIARY GUARANTEES




SECTION 1401. Applicability of Article.




     Unless otherwise provided with respect to the Securities of any series in or pursuant to the
Board Resolution or supplemental indenture establishing such series of Securities pursuant to
Section 301, the provisions of this Article shall be applicable to each series of Securities.



SECTION 1402. Subsidiary Guarantees Subordinate to Senior Debt of Subordinate Guarantors.




     Each Subsidiary Guarantor covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article Four and Article
Fifteen), the Subsidiary Guarantee of such Subsidiary Guarantor is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all Senior Debt of such
Subsidiary Guarantor.



     No provisions of this Article Fourteen shall prevent the occurrence of any Event of Default.



SECTION 1403. Payment Over of Proceeds Upon Dissolution, Etc.




     In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to any Subsidiary Guarantor or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of any Subsidiary Guarantor, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Subsidiary Guarantor, then and
in any such event specified in (a), (b) or (c) above (each such event, if any, herein sometimes
referred to as a “Guarantor Proceeding”) the holders of Senior Debt of such Subsidiary Guarantor
shall be entitled to receive payment in full of all amounts due or to become due on or in respect
of all Senior Debt of such Subsidiary Guarantor, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt of
such Subsidiary Guarantor, before the Holders of the Securities are entitled to receive any payment
or distribution of any kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the payment of any other
indebtedness of such Subsidiary Guarantor subordinated to the payment of the Securities, such
payment or distribution being hereinafter referred to as a “Guarantor Junior Subordinated
Payment”), on account of the Subsidiary Guarantee of such



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Subsidiary Guarantor (all such payments, other than the payment or distribution of stock or
securities of a Subsidiary Guarantor referred to in the second succeeding paragraph, herein
referred to, individually and collectively, as a “Guarantee Payment”), and to that end the holders
of Senior Debt of such Subsidiary Guarantor shall be entitled to receive, for application to the
payment thereof, any Guarantee Payment which may be payable or deliverable in respect of such
Subsidiary Guarantor’s Subsidiary Guarantee in any such Guarantor Proceeding.



     In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any Guarantee Payment before all Senior Debt of such
Subsidiary Guarantor is paid in full or payment thereof provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt of such Subsidiary Guarantor, and
if such fact shall, at or prior to the time of such Guarantee Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such Guarantee Payment shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of assets of such
Subsidiary Guarantor for application to the payment of all Senior Debt of such Subsidiary Guarantor
remaining unpaid, to the extent necessary to pay all Senior Debt of such Subsidiary Guarantor in
full, after giving effect to any concurrent payment or distribution to or for the holders of Senior
Debt of such Subsidiary Guarantor.



     For purposes of this Article only, the words “any payment or distribution of any kind or
character, whether in cash, property or securities” shall not be deemed to include a payment or
distribution of stock or securities of a Subsidiary Guarantor provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which stock or securities
are subordinated in right of payment to all then outstanding Senior Debt of such Subsidiary
Guarantor to substantially the same extent as the Subsidiary Guarantees are so subordinated as
provided in this Article. The consolidation of a Subsidiary Guarantor with, or the merger of a
Subsidiary Guarantor into, another Person or the liquidation or dissolution of such Subsidiary
Guarantor following the conveyance or transfer of all or substantially all of its assets to another
Person upon the terms and conditions set forth in Article Eight shall not be deemed a Guarantor
Proceeding for the purposes of this Section if the Person formed by such consolidation or into
which such Subsidiary Guarantor is merged or the Person which acquires by conveyance or transfer
such assets, as the case may be, shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions set forth in Article Eight.



SECTION 1404. No Payment When Senior Debt of such Subsidiary Guarantor in Default.




     In the event that any Senior Payment Default shall have occurred and be continuing, then no
Guarantee Payment shall be made unless and until such Senior Payment Default shall have been cured
or waived or shall have ceased to exist or all amounts then due and payable in respect of the
relevant Senior Debt of the Company shall have been paid in full, or provision shall have been made
for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of such Senior Debt; provided, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by delivering and



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crediting pursuant to Section 1602 Securities which have been acquired (upon redemption or
otherwise) prior to such Senior Payment Default.



     In the event that any Senior Nonmonetary Default shall have occurred and be continuing, then,
upon the receipt by the Company, the Subsidiary Guarantors and the Trustee of written notice of
such Senior Nonmonetary Default from any holder, or agent for the holders, of any Designated Senior
Debt of the Company, no Guarantee Payment shall be made during the applicable Payment Blockage
Period; provided, however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by delivering and crediting pursuant to
Section 1602 Securities which have been acquired (upon redemption or otherwise) prior to the date
of such receipt of such written notice. No more than one Payment Blockage Period may be commenced
with respect to the Subsidiary Guarantees during any 360-day period and there shall be a period of
at least 181 consecutive days in each 360-day period when no Payment Blockage Period is in effect.
For all purposes of this paragraph, no Senior Nonmonetary Default that existed or was continuing on
the date of commencement of any Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period, whether or not within a period of 360
consecutive days, unless such Senior Nonmonetary Default shall have been cured for a period of not
less than 90 consecutive days.



     In the event that, notwithstanding the foregoing, a Subsidiary Guarantor shall make any
Guarantee Payment to the Trustee or any Holder prohibited by the foregoing provisions of this
Section, and if such fact shall, at or prior to the time of such Guarantee Payment, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event such Guarantee
Payment shall be paid over and delivered forthwith to the Company.



     The provisions of this Section shall not apply to any Guarantee Payment with respect to which
Section 1403 would be applicable.



SECTION 1405. Payment Permitted If No Default.




     Nothing contained in this Article or elsewhere in this Indenture or in any of the Subsidiary
Guarantees shall prevent (a) a Subsidiary Guarantor, at any time except during the pendency of any
Guarantor Proceeding referred to in Section 1403 or under the conditions described in Section 1404,
from making Guarantee Payments, or (b) the application by the Trustee of any money deposited with
it hereunder to Guarantee Payments or the retention of such Guarantee Payment by the Holders, if,
at the time of such application by the Trustee, it did not have knowledge that such Guarantee
Payment would have been prohibited by the provisions of this Article.



SECTION 1406. Subrogation to Rights of Holders of Senior Debt of such Subsidiary Guarantor.




     Subject to the payment in full of all amounts due or to become due on or in respect of Senior
Debt of a Subsidiary Guarantor, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt of such Subsidiary Guarantor, the
Holders of the Securities shall be subrogated to the rights of the



73









 







holders of such Senior Debt of such Subsidiary Guarantor to receive payments and distributions
of cash, property and securities applicable to the Senior Debt of such Subsidiary Guarantor until
the principal of (and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of a
Subsidiary Guarantor of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt of a Subsidiary Guarantor
by Holders of the Securities or the Trustee, shall, as among a Subsidiary Guarantor, its creditors
other than holders of Senior Debt of such Subsidiary Guarantor and the Holders of the Securities,
be deemed to be a payment or distribution by such Subsidiary Guarantor to or on account of the
Senior Debt of such Subsidiary Guarantor.



SECTION 1407. Provisions Solely to Define Relative Rights.




     The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior Debt of a Subsidiary
Guarantor on the other hand. Nothing contained in this Article or elsewhere in this Indenture or
in the Subsidiary Guarantees is intended to or shall (a) impair, as among a Subsidiary Guarantor,
its creditors other than holders of Senior Debt of such Subsidiary Guarantor and the Holders of the
Securities, the obligation of such Subsidiary Guarantor, which is absolute and unconditional (and
which, subject to the rights under this Article of the holders of Senior Debt of such Subsidiary
Guarantor, is intended to rank equally with all other general obligations of such Subsidiary
Guarantor), to guarantee payment to the Holders of the Securities of the principal of (and premium,
if any) and interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against a Subsidiary Guarantor of
the Holders of the Securities and creditors of such Subsidiary Guarantor other than the holders of
Senior Debt of such Subsidiary Guarantor; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt of a
Subsidiary Guarantor to receive cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder.



SECTION 1408. Trustee to Effectuate Subordination.




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



SECTION 1409. No Waiver of Subordination Provisions.




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



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



SECTION 1410. Notice to Trustee.




     Each Subsidiary Guarantor shall give prompt written notice to the Trustee of any fact known to
such Subsidiary Guarantor which would prohibit the making of any payment to or by the Trustee in
respect of its Subsidiary Guarantee. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in respect of the
Subsidiary Guarantees, unless and until the Trustee shall have received written notice thereof from
a Subsidiary Guarantor or a holder of Senior Debt of such Subsidiary Guarantor or from any trustee
therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be affected by any notice
to the contrary which may be received by it within three Business Days prior to such date.



     Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt
of a Subsidiary Guarantor (or a trustee therefor) to establish that such notice has been given by a
holder of Senior Debt of such Subsidiary Guarantor (or a trustee therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt of a Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt of such Subsidiary
Guarantor held by such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.



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SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.




     Upon any payment or distribution of assets of a Subsidiary Guarantor referred to in this
Article, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction
in which such Guarantor Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt of such Subsidiary Guarantor and other indebtedness of
such Subsidiary Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.



SECTION 1412. Trustee Not Fiduciary for Holders of Senior Debt of such Subsidiary Guarantor.




     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of a
Subsidiary Guarantor and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company, a Subsidiary
Guarantor, or to any other Person cash, property or securities to which any holders of Senior Debt
of such Subsidiary Guarantor shall be entitled by virtue of this Article or otherwise.



SECTION 1413. Rights of Trustee as Holder of Senior Debt of such Subsidiary Guarantor; Preservation of Trustee’s Rights.




     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt of a Subsidiary Guarantor which may at any time be held by
it, to the same extent as any other holder of Senior Debt of such Subsidiary Guarantor, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.



     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.



SECTION 1414. Article Applicable to Paying Agents.




     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that Section 1413
shall not apply to the Company, any Subsidiary Guarantor or any Affiliate of the Company if it or
such Subsidiary Guarantor or Affiliate acts as Paying Agent.



SECTION 1415. Defeasance of this Article Fourteen.




     The subordination of the Subsidiary Guarantees provided by this Article Fourteen is expressly
made subject to the provisions for Defeasance or Covenant Defeasance of a series of Securities in
Article Fifteen hereof and, anything herein to the contrary notwithstanding, upon



76









 







the effectiveness of any such Defeasance or Covenant Defeasance with respect to a series of
Securities, the Subsidiary Guarantees of the Securities of such series shall thereupon cease to be
subordinated pursuant to this Article Fourteen.



ARTICLE FIFTEEN




DEFEASANCE AND COVENANT DEFEASANCE




SECTION 1501. Company’s Option to Effect Defeasance or Covenant Defeasance.




     The Company may elect, at its option at any time, to have Section 1502 or Section 1503 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
301 as being defeasible pursuant to such Section 1502 or 1503, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced in or pursuant to a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities.



SECTION 1502. Defeasance and Discharge.




     Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and any Subsidiary Guarantor shall be deemed to have been
discharged from its obligations with respect to its Subsidiary Guarantee of such Securities, and
the provisions of Articles Twelve and Fourteen shall cease to be effective, with respect to such
Securities and Subsidiary Guarantees as provided in this Section on and after the date the
conditions set forth in Section 1504 are satisfied (herein called “Defeasance”). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund described in Section
1504 and as more fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, or, if applicable, to convert such
Securities in accordance with their terms, (2) the Company’s and each Subsidiary Guarantor’s
obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, and, if
applicable, their obligations with respect to the conversion of such Securities, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section
1503 applied to such Securities.



SECTION 1503. Covenant Defeasance.




     Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from



77









 







its obligations under Section 801(3), Sections 1005 through 1008, inclusive, and any covenants
provided pursuant to Section 301(22), 901(2) or 901(7) for the benefit of the Holders of such
Securities, and (2) the occurrence of any event specified in Sections 501(5) (with respect to any
of Section 801(3), Sections 1005 through 1008, inclusive, and any such covenants provided pursuant
to Section 301(22), 901(2) or 901(7)), 501(6), 501(7)), 501(10) and 501(11) shall be deemed not to
be or result in an Event of Default and (3) the provisions of Articles Twelve, Thirteen and
Fourteen shall cease to be effective, in each case with respect to such Securities and Subsidiary
Guarantees as provided in this Section on and after the date the conditions set forth in Section
1504 are satisfied (herein called “Covenant Defeasance”). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company and the Subsidiary Guarantors,
as applicable, 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 (to the extent so specified in the
case of Section 501(5)) or Article Twelve, Thirteen or Article Fourteen, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or Article or by reason
of any reference in any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be unaffected thereby.



SECTION 1504. Conditions to Defeasance or Covenant Defeasance.




     The following shall be the conditions to the application of Section 1502 or Section 1503 to
any Securities or any series of Securities, as the case may be:




     (1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 609
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 Securities, (A) money in
an amount, or (B) U.S. Government Obligations 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 recognized
firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used herein, “U.S. Government
Obligation” means (x) any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United States of America
is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the account of the holder
of such depositary receipt, or with



78









 







respect to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.




     (2) In the event of an election to have Section 1502 apply to any Securities or any
series of Securities, 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
instrument, 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 Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance and discharge were
not to occur.




     (3) In the event of an election to have Section 1503 apply to any Securities or any
series of Securities, 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 Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.




     (4) The Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that neither such Securities nor any other Securities of the same series, if then
listed on any securities exchange, will be delisted as a result of such deposit.




     (5) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such event specified in
Sections 501(7) and (8), at any time on or prior to the 121st day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied until after
such 121st day).




     (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).




     (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the Company
or any Subsidiary is a party or by which it is bound.



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     (8) At the time of such deposit, (A) no default in the payment of any principal of or
premium or interest on any Senior Debt of the Company or any Subsidiary Guarantor shall
have occurred and be continuing, (B) no event of default with respect to any Senior Debt of
the Company or any Subsidiary Guarantor shall have resulted in such Senior Debt becoming,
and continuing to be, due and payable prior to the date on which it would otherwise have
become due and payable (unless payment of such Senior Debt has been made or duly provided
for), and (C) no other event of default with respect to any Senior Debt of the Company or
any Subsidiary Guarantor shall have occurred and be continuing permitting (after notice or
lapse of time or both) the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable.




     (9) The Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause either the Trustee or the trust so created to be
subject to the Investment Company Act of 1940.




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



SECTION 1505. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.




     Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1506, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to Section 1504 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law. Money and U.S. Government Obligations so held in trust shall not be
subject to the provisions of Article Twelve or Article Fourteen.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 1504 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 Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 1504 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.



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SECTION 1506. Reinstatement.




     If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1505 with respect
to such Securities in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.



ARTICLE SIXTEEN




SINKING FUNDS




SECTION 1601. Applicability of Article.




     The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 301 for such
Securities.



     The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1602. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.



SECTION 1602. Satisfaction of Sinking Fund Payments with Securities.




     The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been (x)
converted or (y) redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such Securities; provided,
however, that the Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



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SECTION 1603. Redemption of Securities for Sinking Fund.




     Not less than 35 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 1602 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 32 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.



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



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



	 	 	 	 	 
	 	ISSUER:



SUPERIOR WELL SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	SUBSIDIARY GUARANTORS:



[INSERT ANY SUBSIDIARY GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	TRUSTEE:



[TRUSTEE’S NAME],
  as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: