Exhibit
4.2


 


EXECUTION COPY




 





 


SEALED AIR CORPORATION


 


As Issuer


 


to


 


SUNTRUST BANK


 


As Trustee


 












 


Indenture


 


Dated as of July
1, 2003


 












 


3% CONVERTIBLE SENIOR NOTES DUE 2033




 





 

















 


TABLE OF CONTENTS


 


	
  Parties

  
	
  Recitals

  
	
   

  
	
  ARTICLE ONE

  
	
   

  
	
  Definitions and
  Other Provisions

  of General Application

  
	
   

  
	
   

  
	
  SECTION 101.   Definitions

  
	
   

  
	
  Accounts
  Receivable

  
	
  Act

  
	
  Additional
  Securities

  
	
  Adjustment
  Event

  
	
  Affiliate

  
	
  Agent
  Member

  
	
  Applicable
  Procedures

  
	
  Authenticating
  Agent

  
	
  Board
  of Directors

  
	
  Board
  Resolution

  
	
  Business
  Day

  
	
  Capital
  Lease

  
	
  Commission

  
	
  Company

  
	
  Company
  Order

  
	
  Company
  Request

  
	
  Consolidated
  Assets

  
	
  Consolidated
  Net Tangible Assets

  
	
  Conversion
  Agent

  
	
  Corporate
  Trust Office

  
	
  corporation

  
	
  Credit
  Agreements

  
	
  Defaulted
  Interest

  
	
  Depositary

  
	
  Domestic
  Subsidiary

  
	
  DTC

  
	
  Event
  of Default

  
	
  Exchange
  Act

  
	
  Expiration
  Date

  
	
  Foreign
  Subsidiary

  
	
  Funded
  Debt

  



 












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


 


i

















 


	
  GAAP

  
	
  Global
  Security

  
	
  Holder

  
	
  Indebtedness

  
	
  Indenture

  
	
  Initial
  Purchasers

  
	
  Interest
  Payment Date

  
	
  Issue
  Date

  
	
  Lien

  
	
  Material
  Subsidiary

  
	
  Maturity

  
	
  Notice
  of Default

  
	
  Officers’
  Certificate

  
	
  Opinion
  of Counsel

  
	
  Original
  Securities

  
	
  Outstanding

  
	
  Paying
  Agent

  
	
  Permitted
  Encumbrances

  
	
  Permitted
  Receivables Financing

  
	
  Person

  
	
  Predecessor
  Security

  
	
  Principal
  Property

  
	
  Purchased
  Shares

  
	
  Record
  Date

  
	
  Redemption
  Date

  
	
  Redemption
  Price

  
	
  Restricted
  Securities

  
	
  Restricted
  Subsidiary

  
	
  Rule
  144A

  
	
  Sale
  and Leaseback Transaction

  
	
  Securities

  
	
  Securities
  Act

  
	
  Security
  Register

  
	
  Security
  Registrar

  
	
  Special
  Record Date

  
	
  Stated
  Maturity

  
	
  Subsidiary

  
	
  Subsidiary
  Guarantee

  
	
  Subsidiary
  Guarantor

  
	
  Trigger
  Event

  
	
  Trust
  Indenture Act

  
	
  Trustee

  
	
  Vice
  President

  
	
  SECTION
  102.    Compliance Certificates and
  Opinions

  
	
  SECTION
  103.    Form of Documents Delivered to
  Trustee

  
	
  SECTION
  104.    Acts of Holders; Record Dates

  



 


ii

















 


	
  SECTION 105.

  	
  Notices, Etc., to Trustee, Company and
  Subsidiary Guarantors

  
	
  SECTION 106.

  	
  Notice to
  Holders; Waiver

  
	
  SECTION
  107.

  	
  Effect
  of Headings and Table of Contents

  
	
  SECTION 108.

  	
  Successors and
  Assigns

  
	
  SECTION 109.

  	
  Separability
  Clause

  
	
  SECTION 110.

  	
  Benefits of
  Indenture

  
	
  SECTION 111.

  	
  Governing Law

  
	
  SECTION 112.

  	
  Legal Holidays

  
	
  SECTION 113.

  	
  Confidentiality

  
	
   

  	
   

  
	
  ARTICLE TWO

  
	
   

  
	
  Security Forms

  
	
   

  
	
  SECTION
  201.

  	
  Forms
  Generally; Initial Forms

  
	
  SECTION 202.

  	
  Form of Face
  of Security

  
	
  SECTION
  203.

  	
  Form of Reverse
  of Security

  
	
  SECTION
  204.

  	
  Form
  of Trustee’s Certificate of Authentication

  
	
   

  	
   

  
	
  ARTICLE THREE

  
	
   

  	
   

  
	
  The Securities

  
	
   

  	
   

  
	
  SECTION 301.

  	
  Title and Terms

  
	
  SECTION 302.

  	
  Denominations

  
	
  SECTION 303.

  	
  Execution, Authentication, Delivery and
  Dating

  
	
  SECTION 304.

  	
  Temporary
  Securities

  
	
  SECTION 305.

  	
  Global Securities

  
	
  SECTION 306.

  	
  Registration, Registration of Transfer and
  Exchange Generally; Securities Act Legends

  
	
  SECTION 307.

  	
  Mutilated, Destroyed, Lost and Stolen
  Securities

  
	
  SECTION 308.

  	
  Payment of Interest; Interest Rights
  Preserved

  
	
  SECTION 309.

  	
  Persons Deemed Owners

  
	
  SECTION 310.

  	
  Cancellation

  
	
  SECTION 311.

  	
  Computation of Interest

  
	
  SECTION 312.

  	
  CUSIP Numbers

  
	
   

  	
   

  
	
  ARTICLE FOUR

  
	
   

  	
   

  
	
  Satisfaction and Discharge

  
	
   

  	
   

  
	
  SECTION 401.

  	
  Satisfaction and Discharge of Indenture

  
	
  SECTION 402.

  	
  Application of Trust Money

  



 


iii

















 


	
  ARTICLE FIVE

  
	
   

  	
   

  
	
  Remedies

  
	
   

  	
   

  
	
  SECTION 501.

  	
  Events of Default

  
	
  SECTION 502.

  	
  Acceleration of Maturity; Rescission and
  Annulment

  
	
  SECTION 503.

  	
  Collection of Indebtedness and Suits for
  Enforcement by Trustee

  
	
  SECTION 504.

  	
  Trustee May File Proofs of Claim

  
	
  SECTION 505.

  	
  Trustee May Enforce Claims Without
  Possession of Securities

  
	
  SECTION 506.

  	
  Application of Money Collected

  
	
  SECTION 507.

  	
  Limitation on Suits

  
	
  SECTION 508.

  	
  Unconditional Right of Holders to Receive
  Principal, Premium and Interest and to Conversion

  
	
  SECTION 509.

  	
  Restoration of Rights and Remedies

  
	
  SECTION 510.

  	
  Rights and Remedies Cumulative

  
	
  SECTION 511.

  	
  Delay or Omission Not Waiver

  
	
  SECTION 512.

  	
  Control by Holders

  
	
  SECTION 513.

  	
  Waiver of Past Defaults

  
	
  SECTION 514.

  	
  Undertaking for Costs

  
	
  SECTION 515.

  	
  Waiver of Stay or Extension Laws

  
	
   

  	
   

  
	
  ARTICLE SIX

  
	
   

  	
   

  
	
  The Trustee

  
	
   

  	
   

  
	
  SECTION 601.

  	
  Certain Duties and Responsibilities

  
	
  SECTION 602.

  	
  Notice of Defaults

  
	
  SECTION 603.

  	
  Certain Rights of Trustee

  
	
  SECTION 604.

  	
  Not Responsible for Recitals or Issuance of
  Securities

  
	
  SECTION 605.

  	
  May Hold Securities

  
	
  SECTION 606.

  	
  Money Held in Trust

  
	
  SECTION 607.

  	
  Compensation and Reimbursement

  
	
  SECTION 608.

  	
  Disqualification; Conflicting Interests

  
	
  SECTION 609.

  	
  Corporate Trustee Required; Eligibility

  
	
  SECTION 610.

  	
  Resignation and Removal; Appointment of
  Successor

  
	
  SECTION 611.

  	
  Acceptance of Appointment by Successor

  
	
  SECTION 612.

  	
  Merger, Conversion, Consolidation or
  Succession to Business

  
	
  SECTION 613.

  	
  Preferential Collection of Claims Against
  Company

  
	
  SECTION 614.

  	
  Appointment of Authenticating Agent

  
	
   

  	
   

  
	
  ARTICLE SEVEN

  
	
   

  	
   

  
	
  Holders’
  Lists and Reports by Trustee and Company

  
	
   

  	
   

  
	
  SECTION 701.

  	
  Company to Furnish Trustee Names and
  Addresses of Holders

  
	
  SECTION 702.

  	
  Preservation of Information; Communications
  to Holders

  
	
  SECTION 703.

  	
  [Reserved]

  
	
  SECTION 704.

  	
  Reports by Company

  
	
  SECTION 705.

  	
  Rule 144A Information Requirement

  



 


iv

















 


	
  ARTICLE EIGHT

  
	
   

  	
   

  
	
  Merger,
  Consolidation, Etc.

  
	
   

  	
   

  
	
  SECTION 801.

  	
  Mergers, Consolidations and Certain
  Transfers, Leases and Acquisitions of Assets

  
	
  SECTION 802.

  	
  Successor Substituted

  
	
   

  	
   

  
	
  ARTICLE NINE

  
	
   

  	
   

  
	
  Supplemental
  Indentures

  
	
   

  	
   

  
	
  SECTION 901.

  	
  Supplemental
  Indentures Without Consent of Holders

  
	
  SECTION 902.

  	
  Supplemental Indentures with Consent of
  Holders

  
	
  SECTION 903.

  	
  Execution of Supplemental Indentures

  
	
  SECTION 904.

  	
  Effect of Supplemental Indentures

  
	
  SECTION 905.

  	
  Reference in Securities to Supplemental
  Indentures

  
	
   

  	
   

  
	
  ARTICLE TEN

  
	
   

  	
   

  
	
  Covenants

  
	
   

  	
   

  
	
  SECTION
  1001.

  	
  Payment
  of Principal, Premium and Interest

  
	
  SECTION 1002.

  	
  Maintenance of Office or Agency

  
	
  SECTION 1003.

  	
  Money for Security Payments to Be Held in
  Trust

  
	
  SECTION 1004.

  	
  Statement by Officers as to Default

  
	
  SECTION 1005.

  	
  Existence

  
	
  SECTION 1006.

  	
  Maintenance of Properties

  
	
  SECTION 1007.

  	
  Payment of Taxes and Other Claims

  
	
  SECTION 1008.

  	
  Maintenance of Insurance

  
	
  SECTION 1009.

  	
  Limitation on Liens

  
	
  SECTION 1010.

  	
  Limitations on Sale and Leaseback
  Transactions

  
	
  SECTION 1011.

  	
  Waiver of Certain Covenants

  
	
  SECTION 1012.

  	
  Liquidated Damages Notice

  
	
   

  	
   

  
	
  ARTICLE ELEVEN

  
	
   

  	
   

  
	
  Redemption and
  Repurchase of Securities

  
	
   

  	
   

  
	
  SECTION 1101.

  	
  Redemption of Securities at the Option of
  the Company

  
	
  SECTION 1102.

  	
  Applicability of Article

  
	
  SECTION 1103.

  	
  Election to Redeem; Notice to Trustee

  
	
  SECTION 1104.

  	
  Selection by Trustee of Securities to Be
  Redeemed

  
	
  SECTION 1105.

  	
  Notice of Redemption

  
	
  SECTION 1106.

  	
  Deposit of Redemption Price

  
	
  SECTION 1107.

  	
  Securities Payable on Redemption Date

  
	
  SECTION 1108.

  	
  Securities Redeemed in Part

  



 


v

















 


	
  SECTION 1109.

  	
  Conversion Arrangement on Call for
  Redemption

  
	
  SECTION 1110.

  	
  Redemption at Option of Holders Upon a
  Designated Event

  
	
  SECTION 1111.

  	
  Repurchase of Securities by the Company at
  Option of Holder

  
	
  SECTION 1112.

  	
  Procedures for the Repurchase of
  Securities

  
	
  SECTION 1113.

  	
  Effect of Repurchase Notice

  
	
  SECTION 1114.

  	
  Deposit of Purchase Price

  
	
  SECTION 1115.

  	
  Securities Repurchased in Part

  
	
  SECTION 1116.

  	
  Repayment to the Company

  
	
   

  	
   

  
	
  ARTICLE TWELVE

  
	
   

  	
   

  
	
  Conversion
  of Securities

  
	
   

  	
   

  
	
  SECTION 1201.

  	
  Right to Convert

  
	
  SECTION 1202.

  	
  Conversion Procedures

  
	
  SECTION 1203.

  	
  Cash Payment in lieu of Fractional Shares

  
	
  SECTION 1204.

  	
  Conversion Rate

  
	
  SECTION 1205.

  	
  Adjustment of Conversion Rate

  
	
  SECTION 1206.

  	
  Effect of Reclassification, Consolidation,
  Merger or Sale

  
	
  SECTION 1207.

  	
  Taxes on Shares Issued

  
	
  SECTION 1208.

  	
  Reservation of Shares, Shares to be Fully
  Paid;  Compliance with Governmental
  Requirements;  Listing of Common Stock

  
	
  SECTION 1209.

  	
  Responsibility of Trustee

  
	
  SECTION 1210.

  	
  Notice to Holders Prior to Certain Actions

  
	
  SECTION 1211.

  	
  Rights Issued in Respect of Common Stock
  Issued Upon Conversion

  
	
   

  	
   

  
	
  ARTICLE
  THIRTEEN

  
	
   

  	
   

  
	
  Subsidiary
  Guarantee

  
	
   

  	
   

  
	
  SECTION 1301.

  	
  [Reserved]

  
	
  SECTION 1302.

  	
  Subsidiary Guarantors

  
	
  SECTION 1303.

  	
  Subsidiary Guarantors May
  Consolidate,  Etc., on Certain Terms

  
	
  SECTION 1304.

  	
  Release of Subsidiary Guarantors

  
	
   

  	
   

  
	
  TESTIMONIUM

  
	
   

  	
   

  
	
  SIGNATURES AND SEALS

  
	
   

  	
   

  
	
  ANNEX A 
  Form of Subsidiary Guarantee

  



 


vi

















 


INDENTURE, dated as of
July 1, 2003, between SEALED AIR CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the “Company”),
having its principal office at Park 80 East, Saddle Brook, New Jersey 07663,
and SunTrust Bank, a state banking corporation organized and existing under the
laws of the State of Georgia, as Trustee (herein called the “Trustee”).


 


RECITALS


 


The Company has duly
authorized the creation of an issue of its 3% Convertible Senior Notes due
2033 (herein called the “Securities”) of substantially the tenor hereinafter
set forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.


 


All things necessary (i)
to make the Securities, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid obligations of
the Company, and (ii) to make this Indenture a valid agreement of the Company,
all in accordance with their respective terms, have been done.  In addition, all things necessary to duly
authorize the issuance of the Common Stock of the Company issuable upon the
conversion of the Securities, and to duly reserve for issuance the number of
shares of Common Stock issuable upon such conversion, 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, 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 GAAP, and, except as otherwise herein expressly provided, the term “GAAP”
with respect to any computation required or permitted hereunder shall mean GAAP
as are generally accepted at the date of such computation;


 


1

















 


(4)           all references in
this Indenture, the Securities and any Subsidiary Guarantee to principal in
respect of any Security shall be deemed to mean and include any Redemption
Price or repurchase price payable in respect of such Security pursuant to any
redemption or repurchase hereunder, as the case may be (and all such references
to the Stated Maturity of the principal in respect of any Security shall be
deemed to mean and include the Redemption Date or Repurchase Date with respect
to any such Redemption Price or repurchase price, as the case may be, and
express mention of the payment of any Redemption Price or repurchase price in
any provision hereof or thereof shall not be construed as excluding reference
to any Redemption Price or repurchase price, as the case may be, in those
provisions hereof or thereof where such express reference is not made);


 


(5)           unless the context
otherwise requires, any reference to “Article”, “Section” or “Annex” refers to
an Article or Section of or Annex to this Indenture; and


 


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


 


“Accounts Receivable”
means, with respect to any Person, all rights of such Person to the payment of
money arising out of any sale, lease or other disposition of goods or provision
of services by such Person.


 


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


 


“Additional Securities”
has the meaning specified in Section 301.


 


“Adjustment Event” has
the meaning specified in Section 1205(j).


 


“Affiliate” of any Person
means any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person.  For the purposes of this definition,
“control”, when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.


 


“Agent Member” means any
member of, or participant in, the Depositary.


 


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


 


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


 


“Average Market Price”
has the meaning specified in Section 1205(f).


 


2

















 


“Board of Directors”
means, with respect to the Company, the board of directors of the Company, or
any duly authorized committee of that board.


 


“Board Resolution” of the
Company means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, 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” means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in The City of New York are authorized or obligated by law
or executive order to close.


 


“Capital Lease” means at
any date any lease of property which, in accordance with GAAP, would be
required to be capitalized on the balance sheet of the lessee.


 


“Closing Sale Price” of
the shares of Common Stock or capital stock of, or similar equity interests in,
a corporation on any date means the closing sale price per share (or, if no
closing sale price is reported, the average of the closing bid and ask prices
or, if more than one in either case, the average of the average closing bid and
the average closing ask prices) on such date as reported in composite
transactions for the New York Stock Exchange or such other principal United
States securities exchange on which shares of Common Stock may be traded or, if
the shares of Common Stock are not listed on a United States national or
regional securities exchange, as reported by the Nasdaq system or by the
National Quotation Bureau Incorporated. 
In the absence of such quotations, the Company shall be entitled to
determine the Closing Sale Price on the basis of such quotations as it
considers appropriate.  Closing Sale
Price shall be determined without reference to extended or after hours trading.


 


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


 


“Common Stock” means any
stock of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject
to redemption by the Company.  Subject
to the provisions of Section 1206, however, shares issuable on conversion of
Securities shall include only shares of the class designated as common stock of
the Company at the date of this Indenture (namely, the Common Stock, par value
$0.10) or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which are not subject to
redemption by the Company; provided
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable on conversion shall be substantially
in the proportion which the total number of shares of such class resulting from
all such reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.


 


3

















 


“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.


 


“Company Order” or
“Company Request” 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 Chief Executive Officer, its President, its Chief
Financial Officer, or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.


 


“Company Repurchase Notice” has the meaning specified in Section
1112(c).


 


“Company Repurchase Notice Date” has the meaning specified in
Section 1112(b).


 


“Consolidated Assets”
means, at any date, the total consolidated assets of the Company and its
Subsidiaries, all as set forth on the most recent publicly issued balance sheet
of the Company and its Subsidiaries and computed in accordance with GAAP.


 


“Consolidated Net
Tangible Assets” means, at any date, Consolidated Assets after deducting
therefrom, without duplication, (i) applicable reserves and other properly
deductible items, (ii) all current liabilities and (iii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other
like intangibles, all as set forth on the most recent publicly issued balance
sheet of the Company and its Subsidiaries and computed in accordance with GAAP.


 


“Conversion Agent” means
the Trustee or any other Person appointed by the Company to accept Securities
presented for conversion.


 


“Conversion Date” has the meaning specified in Section 1202.


 


“Conversion Notice” has
the meaning specified in Section 1202.


 


“Conversion Price” as of
any day will equal $1,000 divided by the Conversion Rate as of such date.


 


“Conversion Rate” has the
meaning specified in Section 1204.


 


“Corporate Trust Office”
means the principal office of the Trustee in Atlanta, Georgia, at which its
corporate trust business shall be administered at all times, which at the date
hereof is 25 Park Place, 24th floor, Atlanta, Georgia 30303.


 


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


 


“Credit Agreements” means
the Global Revolving Credit Agreement (5-Year) among the Company, the
subsidiary borrowers parties thereto, the subsidiary guarantors parties
thereto, the banks parties thereto, and ABN AMRO Bank N.V., as administrative
agent, dated


 


4

















 


March 30, 1998, as amended, and the Global Revolving Credit Agreement
(364-Day) among the Company, the subsidiary borrowers parties thereto, the
subsidiary guarantors parties thereto, the banks parties thereto, and Bank of
America, N.A., as administrative agent, dated as of March 23, 2001, as such
Credit Agreements may, pursuant to any future global revolving credit agreement
entered into by the Company, be amended, supplemented, extended, renewed,
consolidated into a single agreement, restated, replaced, refinanced or
modified from time to time (whether or not there is ever a period when there is
no Credit Agreement then in effect), including, without limitation, by adding
additional parties to or increasing the commitments under such Credit
Agreements.


 


“Defaulted Interest” has
the meaning specified in Section 308.


 


“Depositary” means, with
respect to any Securities, a clearing agency that is registered as such under
the Exchange Act and is designated by the Company to act as Depositary for such
Securities (or any successor securities clearing agency so registered).


 


A “Designated Event” will
be deemed to have occurred upon a Fundamental Change or a Termination of
Trading.


 


“Designated Event
Expiration Time” has the meaning specified in Section 1110(b).


 


“Designated Event Notice”
has the meaning specified in Section 1110(b).


 


“Designated Event
Redemption Date” has the meaning specified in Section 1110(a).


 


“Determination Date” has
the meaning specified in Section 1205(j).


 


“Distribution” has the
meaning specified in Section 1205(d).


 


“Domestic Subsidiary”
means each Subsidiary of the Company that is not a Foreign Subsidiary.


 


“DTC” means The
Depository Trust Company, a New York corporation.


 


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


 


“Exchange Act” means the
Securities Exchange Act of 1934 (or any successor statute), as it may be
amended from time to time.


 


“Ex-Dividend Time” has
the meaning specified in Section 1201(b).


 


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


 


“Expiration Time” has the
meaning specified in Section 1205(e).


 


“Fair Market Value” has
the meaning specified in Section 1205(f).


 


5

















 


“Foreign Subsidiary”
means (i) each Subsidiary of the Company not incorporated under the laws of the
United States or of any State thereof and (ii) any other Subsidiary of the
Company substantially all of the operations of which remain outside the United
States.


 


“Fundamental Change”
means the occurrence of any transaction or event (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) in connection with which all
or substantially all of the Common Stock shall be exchanged for, converted
into, acquired for or constitutes solely the right to receive consideration
which is not all or substantially all common stock that is (or, upon
consummation of or immediately following such transaction or event, which will
be) listed on a United States national securities exchange or approved (or,
upon consummation of or immediately following such transaction or event, which
will be approved) for quotation on the Nasdaq National Market or any similar
United States system of automated dissemination of quotations of securities
prices.


 


“Funded Debt” means all
Indebtedness having a maturity of more than 12 months from the date as of which
the computation of Funded Debt is made or having a maturity of 12 months or
less but by its terms being renewable or extendible beyond 12 months from such
date at the option of the borrower.


 


“GAAP” means United
States generally accepted accounting principles.


 


“Global Security” means a
Security that is registered in the Security Register in the name of a
Depositary or a nominee thereof.


 


“Holder” or “holder” as
applied to any Security, or other similar terms (but excluding the term
“beneficial holder”), means a Person in whose name a Security is registered in
the Security Register.


 


“Indebtedness” of any
Person means, at any date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services (except
trade accounts payable and accrued expenses arising in the ordinary course of
business) to the extent such amounts would be, in accordance with GAAP,
recorded as debt on a balance sheet of such Person, (iv) all obligations of
such Person under Capital Leases, (v) all Indebtedness secured by a Lien on any
asset of such Person, whether or not such Indebtedness is otherwise an
obligation of such Person, (vi) all non-contingent obligations of such Person
to reimburse any bank or other Person in respect of amounts paid under a letter
of credit (other than letters of credit which secure obligations in respect of
trade payables or other letters of credit not securing Indebtedness, unless
such reimbursement obligation remains unsatisfied for more than three Business
Days) and (vii) all guarantees or endorsements (other than endorsements for
collection or deposit in the ordinary course of business) of such Person of
Indebtedness of others.


 


“Indenture” means this
instrument as originally executed or 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


 


6

















 


any such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of this instrument and any such supplemental
indenture, respectively.


 


“Initial Purchasers”
Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., Credit
Suisse First Boston LLC, Banc of America Securities LLC, Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Lehman Brothers Inc.


 


“interest” means, when
used with reference to any Security, any interest payable under the terms of
such Security and Liquidated Damages, if any, payable under the terms of the
Registration Rights Agreement.


 


“Interest Payment Date”
means the Stated Maturity of an installment of interest on the Securities.


 


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


 


“Lien” means any
mortgage, pledge, hypothecation, encumbrance, lien (statutory or other) or other
security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Capital Lease).


 


“Liquidated Damages” has
the meaning specified for “Liquidated Damages Amount” in Section 2(e) of the
Registration Rights Agreement.


 


“Liquidated Damages
Notice” has the meaning specified in Section 1012.


 


“Material Subsidiary”
means any Subsidiary that, directly or indirectly through a Subsidiary, either
(A) owns assets with a book value in excess of 5% of the book value of the
Consolidated Assets of the Company and its Subsidiaries, taken as a whole,
measured as of the last day of the most recently completed fiscal quarter for
which the Company has publicly issued financial statements or (B) generated
annual revenues in excess of 5% of the revenues of the Company and its
Subsidiaries, taken as a whole, for the most recently completed four fiscal
quarter period for which the Company has publicly issued financial statements.


 


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


 


“Moody’s” means Moody’s
Investors Services, Inc. and its successors.


 


“nonelecting share” has the meaning specified in 1206.


 


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


 


“Officers’ Certificate”
of the Company or any Subsidiary Guarantor means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the Chief Executive Officer, the President or a Vice President or the Chief
Financial


 


7

















 


Officer, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company or such 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 or the chief operating officer of the Company.  Unless the context otherwise requires, each
reference herein to an “Officers’ Certificate” means an Officers’ Certificate
of the Company.  References herein, or
in any Security or Subsidiary Guarantee, to any officer of a Subsidiary
Guarantor or other Person that is a partnership means such officer of the partnership
or, if none, of a general partner of the partnership authorized thereby to act
on its behalf.


 


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


 


“Original Securities” has
the meaning specified in Section 301.


 


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


 


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


 


(ii)           Securities for
whose payment or redemption or repurchase money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the
Company or any Subsidiary Guarantor) in trust or set aside and segregated in
trust by the Company or any Subsidiary Guarantor (if the Company or any
Subsidiary Guarantor, as the case may be, shall act as a Paying Agent) for the
Holders of such Securities which have otherwise been discharged pursuant to
Article Four hereof; provided that, if such Securities are to be
redeemed or repurchased, notice of such redemption or repurchase, as the case
may be, has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(iii)          Securities which
have been paid pursuant to Section 307 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a protected purchaser in whose hands such Securities are valid
obligations of the Company; and


 


(iv)          Securities converted into Common Stock
pursuant to Article Twelve and Securities deemed not outstanding pursuant to
Article Eleven;


 


provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a responsible officer of the Trustee
actually knows to be so owned shall be


 


8

















 


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 or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.


 


“Paying Agent” means the
Trustee or any other Person authorized by the Company to pay the principal of
(and premium, if any) or interest on any Securities on behalf of the Company.


 


“Permitted Encumbrances”
means, as of any particular time and with respect to any real property of the
Company or any of its Subsidiaries, (i) such easements, leases, subleases,
encroachments, rights of way, minor defects, irregularities or encumbrances on
title which are not unusual with respect to property similar in character to
any such real property and which do not secure Indebtedness and do not
materially impair such real property for the purpose for which it is held or
materially interfere with the conduct of the business of the Company or any of
its Subsidiaries and (ii) municipal and zoning ordinances which are not
violated by the existing improvements and the present use made by the Company
or any of its Subsidiaries of such real property.


 


“Permitted Receivables
Financing” means a sale, pledge or any other transfer of Accounts Receivable as
a method of financing.


 


“Person” means any
individual, partnership, joint venture, firm, corporation, limited liability
company, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.


 


“Predecessor Security” of
any particular Security means every Security issued before, and evidencing all
or a portion of the same debt as that evidenced by, such particular Security;
for the purposes of this definition, any Security authenticated and delivered
under Section 307 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.


 


“Principal Property”
means any manufacturing plant located in the United States currently owned or
subsequently acquired by the Company or any Subsidiary which has a gross book
value which (including related land, improvements, machinery and equipment
without deduction of any depreciation reserves) on the date as of which the
determination is being made exceeds 1% of Consolidated Assets, other than
properties or any portion of a particular property which the Company’s Board of
Directors determines, in good faith, not to be of material importance to the
business of the Company and its Subsidiaries, taken as a whole, or, in the case
of a portion of a particular property, to the use or operation of such
property.


 


“Purchased Shares” has
the meaning specified in Section 1205(e).


 


“Record Date” has the
meaning specified in Section 1205(f).


 


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


 


9

















 


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


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of July 1, 2003,
between the Company and the Initial Purchasers, as amended from time to time in
accordance with its terms.


 


“Regular Record Date” for
the interest payable on any Interest Payment Date means the June 15 or the
December 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date.


 


“Repurchase Date” has the
meaning specified in Section 1111.


 


“Repurchase Notice” has
the meaning specified in Section 1111.


 


“Restricted Securities“
means all Securities required pursuant to Section 306(b) to bear a Restricted
Securities Legend.


 


“Restricted Subsidiary“
means any Subsidiary of the Company that is a Material Subsidiary and a
Domestic Subsidiary.


 


“Rights” has the meaning
specified in Section 1211.


 


“Rights Agreement” has
the meaning specified in Section 1211.


 


“Rule 144A” means
Rule 144A under the Securities Act (or any successor provision), as it may
be amended from time to time.


 


“Sale and Leaseback
Transaction” means an arrangement with any lender or investor, or to which any
lender or investor is a party, providing for the leasing by a Person of any
Principal Property of such Person which has been or is being sold or
transferred by such Person to such lender or investor or to any person to whom
funds have been or are to be advanced by such lender or investor on the
security of such Principal Property, other than such arrangements involving any
Principal Property within 180 days after the purchase or completion of
construction of such Principal Property. 
The stated maturity of such arrangement shall be the date of the last
payment of rent or any other amount due under such arrangement prior to the
first date on which such arrangement may be terminated by the lessee without
payment of a penalty.


 


“Securities” has the
meaning specified in the first paragraph of the recitals to this instrument,
and includes both Original Securities and Additional Securities.


 


“Securities Act” means
the Securities Act of 1933 (or any successor statute), as it may be amended
from time to time.


 


“Security Register” and
“Security Registrar” have the respective meanings specified in
Section 306(a).


 


10

















 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 308.


 


“Spinoff Valuation
Period” has the meaning specified in Section 1205(d).


 


“Standard & Poor’s”
means Standard & Poor’s Credit Market Services, a division of the
McGraw-Hill Companies, and its successors.


 


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


 


“Subsidiary” of any
Person means (i) any corporation more than 50% of whose stock of any class or
classes having by the terms of such stock ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not
at the time stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) is at
the time owned by such Person and/or by one or more Subsidiaries of such Person
or by such Person and one or more Subsidiaries of such Person and (ii) any
partnership, association, limited liability company, joint venture or other
entity in which such Person and/or one or more Subsidiaries of such Person or
such Person and one or more Subsidiaries of such Person has more than a 50%
equity interest at the time.


 


“Subsidiary Guarantee”
means the unconditional guarantee by the Subsidiary Guarantor of the due and
punctual payment of principal, premium, if any, and interest on the Securities,
executed in the form established pursuant to Annex A hereof.


 


“Subsidiary Guarantor”
means at any time each Subsidiary that has become a Subsidiary Guarantor pursuant
to Section 1302 of this Indenture, in each case so long as it remains a
Subsidiary Guarantor.


 


A “Termination of
Trading” will be deemed to have occurred if the Common Stock (or other common
stock into which the Securities are then convertible) is neither listed for
trading on a United States national securities exchange nor approved for
trading on the Nasdaq National Market.


 


“Trading Day” means (x)
if the applicable security is listed or admitted for trading on the New York
Stock Exchange or such other national securities exchange, a day on which the
New York Stock Exchange or another national securities exchange is open for
business or (y) if the applicable security is quoted on the Nasdaq National
Market, a day on which trades may be made thereon or (z) if the applicable
security is not so listed, admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.


 


“Trading Price” means, on
any date, the average of the secondary market bid quotations for the Securities
obtained by the Trustee for $10,000,000 principal amount of Securities at
approximately 3:30 p.m., New York City time, on such date from three independent
nationally recognized securities dealers selected by the Company; provided that if at least three such bids
cannot reasonably be obtained by the Trustee, but two bids are obtained, then
the


 


11

















 


average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, one bid shall be used; and provided further that if the Trustee
cannot reasonably obtain at least one bid for $10,000,000 principal amount of
Securities from a nationally recognized securities dealer or in the Company’s
reasonable judgment, the bid quotations are not indicative of the secondary
market value of the Securities, then the Trading Price per $1,000 principal
amount of Securities shall be deemed to be less than 98% of the product of (a)
the number of shares of Common Stock issuable upon conversion of $1,000
principal amount of Securities and (b) the Closing Sale Price of shares of
Common Stock on such date.


 


“Trigger Event” has the
meaning specified in Section 1205(d).


 


“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” 
means such successor Trustee.


 


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


 


SECTION 102.       Compliance Certificates and Opinions.


 


Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act (as if such Act
applied) or this Indenture.  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 an Opinion of Counsel, if to be
given by counsel, and shall comply with any requirement 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;


 


(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


 


12

















 


(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 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
stating that the information with respect to such factual matters is in the
possession of the Company, 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.


 


Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent of such Holders duly appointed in writing and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 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


 


13

















 


fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.


 


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 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; 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 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 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 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 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 entitled to join in the giving or making of (i) any Notice 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. 
If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities 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 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 on the date such action is taken. 
Promptly after any record date is set pursuant to this


 


14

















 


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 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 date 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 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, Company and
Subsidiary Guarantors.


 


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 to or with
the Trustee at its Corporate Trust Office, Attention:  Corporate
Trust Department, or at any other address previously furnished in writing to
the Holders or the Company by the Trustee, or, with respect to notices by the
Company or any Subsidiary Guarantor, transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following facsimile numbers:
(404) 588-7335 or to any other facsimile number previously furnished in
writing to the Company by the Trustee, or


 


(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 and mailed, first-class postage prepaid, to it addressed to it at the
address of the Company’s principal office specified in the first paragraph of
this instrument, Attention:  General
Counsel and Secretary, or at any other address previously furnished in writing
to the Trustee by the Company or, with respect to notices by the Trustee,
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile number: (201) 703-4113 or to any other
facsimile number previously furnished in writing to the Trustee by the Company.


 


15

















 


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.       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 108.       Successors and Assigns.


 


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


 


SECTION 109.       Separability Clause.


 


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


 


SECTION 110.       Benefits of Indenture.


 


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


 


SECTION 111.       Governing Law.


 


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


 


16

















 


SECTION 112.       Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Repurchase Date or Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities or any Subsidiary Guarantee)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Repurchase
Date or at the Stated Maturity, provided that no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date, Repurchase Date or Stated Maturity, as the case may be,
to such Business Day if such payment is made or duly provided for on such
Business Day.


 


SECTION 113.       Confidentiality.


 


Notwithstanding anything to the contrary set forth herein or
in any other written or oral understanding or agreement among the parties, the
parties (and each employee, representative, or other agent of the parties) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and any facts that may be relevant to the tax structure of the
transactions (and any related transactions or arrangement) contemplated hereby,
provided, however, that no party (and no employee,
representative, or other agent thereof) shall disclose any other information
that is not relevant to understanding the tax treatment and tax structure of
the transactions contemplated hereby (including the identity of any party and
any information that could lead another to determine the identity of any
party), or any other information to the extent that such disclosure could
reasonably result in a violation of any federal or state securities law.


 


ARTICLE TWO


 


Security Forms


 


SECTION 201.       Forms Generally; Initial Forms.


 


The Securities and the
Trustee’s certificates of authentication shall be in substantially the forms
set forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.


 


Any Subsidiary Guarantees
shall be in substantially the form set forth in Annex A hereto.


 


The definitive Securities
shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed and
(with respect to Global Securities) the rules of the Depositary, all as
determined by the officers of the Company executing such Securities as
evidenced by their execution thereof.


 


17

















 


Upon their original
issuance, the Securities shall be issued in the form of one or more Global
Securities registered in the name of DTC, as Depositary, or its nominee and
deposited with the Trustee, as custodian for DTC, for credit by DTC to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as they may direct).


 


So long as the Securities
are eligible for book-entry settlement with the Depositary, or unless otherwise
required by law, or otherwise contemplated by Section 305, all of the
Securities will be represented by one or more Global Securities.  The transfer and exchange of beneficial
interests in any such Global Security shall be effected through the Depositary
in accordance with this Indenture and the Applicable Procedures.  Except as provided in Section 305,
beneficial owners of a Global Security shall not be entitled to have
certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form and will not be
considered holders of such Global Security.


 


Payment of principal of
and interest and premium, if any, on any Global Security shall be made to the
Holder of such Global Security.


 


SECTION 202.       Form of Face of Security.


 


[If
the Security is a Restricted Security, then insert — THE
SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE.  BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2)
AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS
SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT
(A) TO SEALED AIR CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN
A TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE), IT WILL FURNISH TO SUNTRUST BANK,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE AND UPON THE COMPANY’S
REQUEST, TO THE COMPANY), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS THE TRUSTEE AND THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS


 


18

















 


TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY
TRANSFER OF THIS SECURITY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION).  THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTION.]


 


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


 


SEALED AIR CORPORATION 

3% CONVERTIBLE SENIOR NOTES DUE 2033


 


[If Restricted Global
Security - CUSIP Number: 81211KAG5]


 


	
  No. 

  	
   

  	
  $ 

  



 


SEALED AIR CORPORATION, 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 [if the Security is a Global
Security, then insert — (which principal amount may from time to
time be increased or decreased to such other principal amounts (which, when
taken together with the principal amounts of all other Outstanding Securities,
shall not exceed $431,250,000) by adjustments made on the records of the
Trustee hereinafter referred to in accordance with the Indenture)] on June 30, 2033 and to pay interest
thereon from July 1, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually on June 30 and
December 30, in each year, commencing December 30, 2003, at the rate of 3.00%
per annum, until the principal hereof is paid or made available for payment, provided
that any amount of principal, premium, if any, and interest on this Security
which is overdue shall bear interest (to the extent that payment thereof shall
be legally enforceable) at the rate per annum then borne by this Security, plus
1.00%, from the date such amount is due to the day it is paid or made available
for payment, and such overdue interest shall be payable on demand.


 


19

















 


Except as otherwise
provided in such Indenture, 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 June 15 or December 15 (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 the relevant 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 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 may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. 
Interest on this Security shall be computed on the basis set forth in
the Indenture.


 


Payment of the principal
of (and premium, if any) and interest on this Security will be made at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, maintained for such purpose and at any other office or agency
maintained by the Company for such purpose, 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 either (i) by check
mailed to the registered address of such Person (provided that the
holder of Securities with an aggregate principal amount in excess of $2,000,000
shall, at the written election (timely made and containing appropriate wire
transfer information) of such holder, be paid by wire transfer of immediately
available funds) or (ii) by transfer to an account maintained by such Person
located in the United States; provided that payments to the Depositary
will be made by wire transfer of immediately available funds to the account of
the Depositary or its nominee.


 


Reference is hereby made
to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the holder of this Security
the right to convert this Security into Common Stock of the Company on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. 
Such 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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [SEAL]

  	
  SEALED AIR CORPORATION

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  	
   

  
				



 


20

















 


SECTION 203.       Form of Reverse of Security.


 


This Security is one of a
duly authorized issue of Securities of the Company designated as its 3%
Convertible Senior Notes due 2033 (herein called the “Securities”) issued under
an Indenture, dated as of July 1, 2003 (herein called the “Indenture”, which
term shall have the meaning assigned to it in such instrument), between the
Company and the Trustee, as Trustee (herein called the “Trustee”, which term
includes any successor trustee under the Indenture).  The aggregate principal amount of the Securities shall not exceed
$431,250,000.  Reference is hereby made
to the Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.


 


If an Event of Default
shall occur and be continuing, the principal of all the Securities may be
declared due and payable in the manner and with the effect provided in the
Indenture.


 


The Original Securities
(as defined in the Indenture) and the Additional Securities (as defined in the
Indenture), if any, shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers, redemptions,
repurchases and conversions.


 


As provided in the
Indenture and subject to certain limitations therein set forth, the obligations
of the Company under the Indenture and this Security are, under certain
circumstances provided in the Indenture, required to be guaranteed pursuant to
Subsidiary Guarantees with respect to the payment of the principal, premium, if
any, and interest on the Securities. 
Each Holder, by holding this Security, agrees to all of the terms and
provisions of any such Subsidiary Guarantees. 
Each Subsidiary Guarantee issued pursuant to the terms of the Indenture
shall provide that the Subsidiary Guarantor party thereto shall be released
from its obligations under such Subsidiary Guarantee if it is no longer a
subsidiary guarantor under, and as such term is defined in, the Credit
Agreements and upon delivery to the Trustee of an Officers’ Certificate
certifying to that effect.  On the Issue
Date, no Subsidiaries of the Company shall be required to provide Subsidiary
Guarantees.


 


At any time on or after
July 2, 2007 and prior to maturity, the Securities may be redeemed at the
option of the Company, in whole or in part, upon mailing a notice of such
redemption not less than 30 days but not more than 60 days before the
Redemption Date to the Holders of Securities at their last registered
addresses, all as provided in the Indenture, at the Redemption Prices
(expressed as percentages of the principal amount of the Securities) set forth
below, together with accrued and unpaid interest to, but excluding, the
Redemption Date;


 


21

















 


provided that if the Redemption Date
is on an Interest Payment Date, then the interest payable on such date shall be
paid to the holder of record on the preceding Regular Record Date:


 


	
  Year

  	
   

  	
  Percentages

  	
   

  
	
  On
  July 2, 2007 through June 29, 2008

  	
   

  	
  101.286

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On
  June 30, 2008 through June 29, 2009

  	
   

  	
  100.857

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On
  June 30, 2009 through June 29, 2010

  	
   

  	
  100.429

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On
  June 30, 2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


The Company may not give
notice of any redemption of the Securities if a default in the payment of
interest, or premium, if any, on the Securities has occurred and is continuing.


 


The Securities are not
subject to redemption through the operation of any sinking fund.


 


If a Designated Event
occurs at any time prior to maturity of the Securities, this Security will be
redeemable on a Designated Event Redemption Date, 30 days after notice thereof,
at the option of the Holder of this Security at a Redemption Price equal to
100% of the principal amount thereof, together with accrued and unpaid interest
to (but excluding) the Redemption Date; provided that if such Designated
Event Redemption Date is an Interest Payment Date, the interest payable on such
date shall be paid to the holder of record of this Security on the preceding
Regular Record Date, respectively.  The
Securities will be redeemable in multiples of $1,000 principal amount.  The Company shall mail to all Holders of the
Securities a notice of the occurrence of a Designated Event and of the
redemption right arising as a result thereof on or before the 10th day after
the occurrence of such Designated Event. 
For a Security to be so redeemed at the option of the Holder, the Company
must receive at the office or agency of the Company maintained for that purpose
in accordance with the terms of the Indenture, such Security with the form
entitled “Option to Elect Redemption Upon a Designated Event” on the reverse
thereof duly completed, together with such Security, duly endorsed for
transfer, on or before the 30th day after the date of such notice of a
Designated Event (or if such 30th day is not a Business Day, the immediately
succeeding Business Day).  Holders have
the right to withdraw any surrendered Securities prior to such 30th
day.


 


Subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase, at
the option of the Holder, all or any portion of the Securities held by such
Holder on June 30, 2010, June 30, 2013, June 30, 2018, June 30, 2023 and June
30, 2028, in whole multiples of $1,000 at a purchase price of 100% of the
principal amount, plus any accrued and unpaid interest, on such Security to
(but excluding) the Repurchase Date.  To
exercise such right, a Holder shall deliver to the Company such Security with
the form entitled “Repurchase Notice” on the reverse thereof duly completed,
together with the Security, duly endorsed for transfer, at any time from the
opening of business on the date that is 20 Business Days prior to such
Repurchase Date until the close of business on such Repurchase Date, and shall
deliver the Securities to the Trustee (or other Paying Agent appointed by the
Company) as set forth in the Indenture.


 


22

















 


Holders have the right to
withdraw any Repurchase Notice by delivering to the Trustee (or other Paying
Agent appointed by the Company) a written notice of withdrawal up to the close
of business on the Repurchase Date, all as provided in the Indenture.


 


If cash sufficient to pay
the purchase price of all Securities or portions thereof to be purchased as of
the Repurchase Date is deposited with the Trustee (or other Paying Agent
appointed by the Company), on the Business Day following the Repurchase Date,
interest will cease to accrue on such Securities (or portions thereof)
immediately after such Repurchase Date, and the Holder thereof shall have no
other rights as such other than the right to receive the purchase price upon
surrender of such Security.


 


In the event of
redemption or repurchase of this Security in part only, a new Security or
Securities for the unredeemed or unrepurchased portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.


 


Subject to the occurrence
of certain events and in compliance with the provisions of the Indenture, the
Holder hereof has the right, at its option, to convert each $1,000 principal
amount of the Securities into 14.2857 shares of the Company’s Common Stock. A
Security in respect of which a Holder is exercising its right to require
redemption upon a Designated Event or repurchase on a Repurchase Date may be
converted only if such Holder withdraws its election to exercise either such
right in accordance with the terms of the Indenture. The Conversion Rate for
the Securities on any Conversion Date shall be determined as set forth in the
Indenture.  The Company shall deliver
cash or a check in lieu of any fractional share of Common Stock.


 


The Company shall deliver
to the Holder through the Conversion Agent, no later than the third Business
Day following the Conversion Date, a certificate for the number of whole shares
of Common Stock issuable upon the conversion and, if applicable, cash in lieu
of any fractional shares.


 


A Holder may convert a portion
of a Security if the principal amount of such portion is $1,000 or an integral
multiple of $1,000. No payment or adjustment shall be made for dividends on the
Common Stock except as provided in the Indenture.  On conversion of a Security, except for conversion during the
period from the close of business on any Regular Record Date immediately
preceding any Interest Payment Date to the close of business on the Business
Day immediately preceding such Interest Payment Date, in which case the Holder
on such Regular Record Date shall receive the interest payable on such Interest
Payment Date, that portion of accrued and unpaid interest on the converted
Security attributable to the period from the most recent Interest Payment Date
(or, if no Interest Payment Date has occurred, from the Issue Date) through the
Conversion Date shall not be cancelled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through delivery of
the Common Stock (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the Security being converted pursuant to the provisions
hereof.


 


Securities or portions
thereof surrendered for conversion during the period from the close of business
on any Regular Record Date immediately preceding any Interest Payment Date to
the close of business on the Business Day immediately preceding such Interest
Payment Date shall be accompanied by payment to the Company or its order, in
New York Clearing


 


23

















 


House funds or other funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment Date with respect to the
principal amount of Securities or portions thereof being surrendered for
conversion; provided
that no such payment need be made if (1) the Company has specified a Redemption
Date that occurs during the period from the close of business on a Regular
Record Date to the close of business on the Business Day immediately preceding
the Interest Payment Date to which such Regular Record Date relates, (2) the
Company has specified a Designated Event Redemption Date during such period or
(3) only to the extent of overdue interest, any overdue interest exists on the
Conversion Date with respect to the Securities converted.


 


No fractional shares will
be issued upon conversion; in lieu thereof, an amount will be paid in cash
based upon the current market price of the Common Stock as provided in Section
1203 of the Indenture.


 


To convert a Security, a
Holder must (a) complete and manually sign the conversion notice set forth
below or a facsimile thereof and deliver such notice to a Conversion Agent, (b)
surrender the Security to the Conversion Agent, (c) furnish appropriate
endorsements and transfer documents (including any certification that may be
required under applicable law) if required by the Conversion Agent, (d) pay any
transfer or similar tax, if required and (e) if required, pay funds equal to
the interest payable on the next Interest Payment Date.


 


The Conversion Rate will
be adjusted as set forth in Article Twelve of the Indenture.


 


Any Securities called for
redemption, unless surrendered for conversion by the Holders thereof on or
before the close of business on the Business Day preceding the redemption date,
may be deemed to be redeemed from the Holders of such Securities for an amount
equal to the applicable Redemption Price, together with accrued but unpaid
interest to, but excluding, the date fixed for redemption, by one or more
investment banks or other purchasers who may agree with the Company (i) to
purchase such Securities from the Holders thereof and convert them into shares
of the Company’s Common Stock and (ii) to make payment for such Securities as
aforesaid to the Trustee in trust for the Holders.


 


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 under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding.  The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, 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.


 


24

















 


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, the
Holders of not less than 25% in principal amount of the Securities 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 indemnity reasonably satisfactory to the Trustee and the Trustee shall
not have received from the Holders of a majority in principal amount of
Securities 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 certain
suits described in the Indenture, including 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 (or, in the case of redemption or repurchase, on or after the Redemption
Date or Repurchase Date, as the case may be) or any right to convert this Security
in accordance with the terms hereof and of the Indenture.


 


No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest on this Security at
the times, place and rate, and in the coin or currency, and to convert this
security as 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
the Borough of Manhattan, The City of New York (which initially shall be the office
of the Trustee located at SunTrust Bank c/o Computershare Trust Company of New
York, Wall Street Plaza, 88 Pine Street, 19th Floor, New York, New
York 10005), 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 authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.


 


The Securities are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.  As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
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, any Subsidiary
Guarantor, the Trustee and any agent of the Company, any Subsidiary Guarantor
or the Trustee, may treat the Person in whose name this Security is registered
as the owner hereof


 


25

















 


for all purposes, whether or not this Security be overdue, and neither
the Company, any Subsidiary Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.


 


This Security shall be
deemed to be a contract made under the laws of New York, and for all purposes
shall be construed in accordance with the laws of New York.


 


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


 












	
   

  	
   

  	
   

  
	
   

  	
  CONVERSION NOTICE

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TO:

  	
  SEALED AIR CORPORATION

  
	
   

  	
  SUNTRUST BANK

  
				



 


The undersigned
registered owner of this Security hereby irrevocably exercises the option to
convert this Security, or the portion thereof (which is $1,000 or a multiple
thereof) below designated, into shares of Common Stock of Sealed Air
Corporation in accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable upon such
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below.  Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the
Indenture.  If shares or any portion of
this Security not converted are to be issued in the name of a person other than
the undersigned, the undersigned will provide the appropriate information below
and 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:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name of Holder or
  underlying

  participant of Depository

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


26

















 


Fill in the registration
of shares of Common Stock if to be issued, and Securities if to be delivered,
other than to and in the name of the registered holder:


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City, State and Zip
  Code)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Please print name and
  address

  	
   

  
	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
  $

  	
   

  
	
   

  	
   

  
	
  Social Security or
  Other Taxpayer
 Identification Number:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


27

















 


OPTION TO ELECT REDEMPTION

UPON A DESIGNATED EVENT


 


TO:                                                                            SEALED
AIR CORPORATION

SUNTRUST BANK


 


The undersigned registered
owner of this Security hereby irrevocably acknowledges receipt of a notice from
Sealed Air Corporation (the “Company”)
as to the occurrence of a Designated Event with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of
this Security, or the portion thereof (which is $1,000 or a multiple thereof)
below designated, in accordance with the terms of the Indenture referred to in
this Security at the price of 100% of such entire principal amount or portion
thereof, together with accrued interest to, but excluding, the Designated Event
Redemption Date, to the registered holder hereof.  Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture.


 


	
  Dated: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  NOTICE: The above
  signatures of the holder(s) hereof must correspond with the name as written
  upon the face of the Security in every particular without alteration or
  enlargement or any change whatever.

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Social Security or
  Other Taxpayer Identification

  Number

  



 


28

















 


REPURCHASE NOTICE


 


TO:                                                                            SEALED
AIR CORPORATION

SUNTRUST BANK


 


The undersigned
registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from Sealed Air Corporation (the “Company”) regarding the right of holders to
elect to require the Company to repurchase the Securities and requests and
instructs the Company to repay the entire principal amount of this Security, or
the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture at the price of 100%
of such entire principal amount or portion thereof, together with accrued
interest to, but excluding, the Repurchase Date, to the registered holder
hereof.  Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the
Indenture.  The Securities shall be
repurchased by the Company as of the Repurchase Date pursuant to the terms and
conditions specified in the Indenture.


 


Dated:


 


Signature(s):


 


NOTICE:  The above signatures of the holder(s) hereof
must correspond with the name as written upon the face of the Security in every
particular without alteration or enlargement or any change whatever.


 


Security Certificate
Number (if applicable):


 


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


 


Social Security or Other
Taxpayer Identification Number:


 


29

















 


ASSIGNMENT


 


For value received
                                                                            
hereby sell(s) assign(s) and transfer(s) unto
                                                                            
(Please insert social security or other Taxpayer Identification Number of
assignee) the within Security, and hereby irrevocably constitutes and appoints
                                                                            
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.


 


In connection with any
transfer of the Security prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act of 1933,
as amended (or any successor provision) (other than any transfer pursuant to a
registration statement that has been declared effective under the Securities
Act of 1933, as amended), the undersigned confirms that such Security is being
transferred:


 


•              To Sealed Air Corporation or a
subsidiary thereof; or


 


•                                          To
a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended; or


 


•                                          Pursuant
to and in compliance with Rule 144 under the Securities Act of 1933, as
amended; or


 


•                                          Pursuant
to a Registration Statement which has been declared effective under the
Securities Act of 1933, as amended, and which continues to be effective at the
time of transfer;


 


and unless the Security
has been transferred to Sealed Air Corporation or a subsidiary thereof, the
undersigned confirms that such Security is not being transferred to an
“affiliate” of the Company as defined in Rule 144 under the Securities Act of
1933, as amended.


 


Unless one of the boxes is checked,
the Trustee will refuse to register any of the Securities evidenced by this
certificate in the name of any person other than the registered holder thereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 


30

















 


NOTICE: The signature on
the Conversion Notice, the Option to Elect Redemption Upon a Designated Event,
the Repurchase Notice or the Assignment must correspond with the name as
written upon the face of the Security in every particular without alteration or
enlargement or any change whatsoever.


 












 


SECTION 204.       Form of Trustee’s Certificate of
Authentication.


 


Dated:


 


This is one of the
Securities described in the within-mentioned Indenture.


 


	
   

  	
  SunTrust Bank,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  	
   

  



 


ARTICLE THREE


The Securities


 


SECTION 301.       Title and Terms.


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture shall not exceed $431,250,000 (except pursuant to Sections 305, 307,
1108, 1110 and 1202 hereof).  The Trustee
shall authenticate Securities on the Issue Date in an aggregate principal
amount not to exceed $375,000,000 (“Original Securities”).  In addition, subject to the provisions of
Section 102, the Trustee shall authenticate additional Securities (“Additional
Securities”) upon receipt of an Officers’ Certificate specifying the amount of
Securities to be authenticated and the date on which such Securities are to be
authenticated and certifying that all conditions precedent to the issuance of
the Additional Securities contained herein have been complied with and that no
Default or Event of Default would occur as a result of the issuance of such
Additional Securities.  The aggregate
principal amount of the Additional Securities, if any, shall not exceed
$56,250,000.


 


The Securities shall be
known and designated as the “3% Convertible Senior Notes due 2033” of the
Company.  Their Stated Maturity shall be
June 30, 2033 and they shall bear interest at the rate of 3.00% per annum, from
July 1, 2003 or from the most recent Interest


 


31

















 


Payment Date to which interest has been paid or duly provided for, as
the case may be, payable semiannually on June 30 and December 30, commencing
December 30, 2003, until the principal thereof is paid or made available for
payment.


 


The principal of (and
premium, if any) and interest on the Securities shall be payable at the office
or agency of the Company in the Borough of Manhattan, The City of New York, New
York (which initially shall be the office of the Trustee located at SunTrust
Bank c/o Computershare Trust Company of New York, Wall Street Plaza, 88 Pine
Street, 19th Floor, New York, New York 10005), maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company
payment of interest may, as the Company shall specify to the Paying Agent in
writing by each Regular Record Date, be made either (i) by check mailed to the
address of the Person entitled thereto as it appears in the Security Register (provided
that any Holder of Securities with an aggregate principal amount in excess of
$2,000,000 shall, at the written election of such Holder (such election to be
made prior to the relevant Regular Record Date and to contain appropriate wire
transfer information), be paid by wire transfer in immediately available funds)
or (ii) by transfer to an account maintained by such Person located in the
United States; provided that payments to the Depositary will be made by
wire transfer of immediately available funds to the account of the Depositary
or its nominee.


 


The Securities shall not
have the benefit of any sinking fund obligations.


 


The Original Securities
and the Additional Securities, if any, shall constitute one series for all
purposes under this Indenture, including, without limitation, amendments,
waivers and redemptions.


 


The Securities shall be
guaranteed by any Subsidiary Guarantors as provided in Article Thirteen and any
Subsidiary Guarantees, the form of which is set forth in Annex A hereto.


 


SECTION 302.       Denominations.


 


The Securities shall be
issuable only in registered form without coupons and only 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 Chief Executive Officer, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries.  The signature of
any of these officers or the Company’s seal 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.


 


32

















 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.


 


Each Security shall be
dated the date of its authentication.


 


No Security 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.


 


SECTION 304.       Temporary Securities.


 


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


 


If temporary Securities
are issued, the Company will cause definitive Securities to be prepared without
unreasonable delay.  After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities, upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. 
Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
authorized denominations.  Until so
exchanged the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.


 


SECTION 305.       Global Securities.


 


(a)           Each Global Security
authenticated under this Indenture shall be registered in the name of the
Depositary designated by the Company 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.


 


(b)           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 (i) such
Depositary (A) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, (ii) there
shall have occurred and be continuing an Event of Default with respect to such
Global Security, or (iii) the Company executes and delivers to the Trustee
an Officer’s Certificate


 


33

















 


stating that all Global Securities shall be
exchanged in whole for Securities that are not Global Securities (in which case
such exchange shall be effected by the Trustee).


 


(c)           If any Global
Security is to be exchanged for other Securities or cancelled in whole, it
shall be surrendered by or on behalf of the Depositary or its nominee to the
Trustee, as Security Registrar, for exchange or cancellation as provided in
this Article Three.  If any Global
Security is to be exchanged for other Securities or cancelled in part, or if
another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall be
so surrendered for exchange or cancellation as provided in this Article Three
or (ii) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal to the
principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made on the records of the Trustee, as Security Registrar, whereupon the
Trustee, in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding adjustment
to its records.  Upon any such surrender
or adjustment of a Global Security, the Trustee shall, subject to Section
305(b) and as otherwise provided in this Article Three, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may
be directed by, the Depositary or its authorized representative.  Upon the request of the Trustee in
connection with the occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the Trustee a
reasonable supply of Securities that are not in the form of Global
Securities.  The Trustee shall be
entitled to rely upon any order, direction or request of the Depositary or its
authorized representative which is given or made pursuant to this Article Three
if such order, direction or request is given or made in accordance with the
Applicable Procedures.


 


(d)           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 Article Three, Section 905, or Section 1108 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.


 


(e)           The Depositary or
its nominee, as registered owner of a Global Security, shall be the Holder of
such Global Security for all purposes under this Indenture, the Securities and
any Subsidiary Guarantees, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.  Accordingly, any such owner’s beneficial
interest in a Global Security will be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Depositary
or its nominee or its Agent Members.


 


SECTION 306.       Registration,
Registration of Transfer and Exchange Generally; Securities Act Legends.


 


(a)           Registration,
Registration of Transfer and Exchange Generally.   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 designated pursuant to Section 1002 being herein
sometimes collectively referred to as the “Security Register”) in


 


34

















 


which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers and exchanges of Securities.  The Trustee is hereby appointed “Security Registrar” for the purpose
of registering Securities and transfers and exchanges of Securities as herein
provided.


 


Upon surrender for
registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 1002 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture.


 


At the option of the
Holder, Securities may be exchanged for new Securities of any authorized denominations,
of a like aggregate principal amount and bearing such restrictive legends as
may be required by this Indenture, 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, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.


 


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


 


Every Security presented
or surrendered for registration of transfer or for exchange, redemption,
repurchase or conversion 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 exchange of Securities, other than exchanges pursuant to Section
304, 305, 306, 905, 1108 or 1115 not involving any transfer.


 


The Company shall not be
required to issue, register the transfer of or exchange (a) any Security during
a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities selected for redemption
under Section 1104 and ending at the close of business on the day of such
mailing, (b) any Securities or portions thereof called for redemption pursuant
to Section 1105, except the unredeemed portion of any Securities being redeemed
in part, (c) any Securities or portions thereof surrendered for conversion
pursuant to Article Twelve, except the unconverted portion of any Securities
surrendered for conversion in part, (d) any Securities or portions thereof
tendered for redemption (and not withdrawn) pursuant to Section 1110 or (e) any
Securities or portions thereof tendered for repurchase (and not withdrawn)
pursuant to Section 1111, except the unrepurchased portion of any Securities
being repurchased in part.


 


35

















 


(b)           Securities Act
Legend:  Security.  Every Security that bears or is required
under this Section 306(b) to bear the legend set forth in this Section 306(b)
(together with any Common Stock issued upon conversion of the Securities and
required to bear the legend set forth in Section 306(c), collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set
forth in this Section 306(b) (including those set forth in the legend below)
unless such restrictions on transfer shall be waived by written consent of the
Company, and the Holder of each such Restricted Security, by such Holder’s
acceptance thereof, agrees to be bound by all such restrictions on
transfer.  As used in Sections 306(b)
and 306(c), the term “transfer” encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security or any interest
therein.


 


Until the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision), any certificate evidencing such
Security (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof, which
shall bear the legend set forth in Section 306(c), if applicable) shall bear a
legend in substantially the following form, unless such Security has been sold
pursuant to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such
transfer), or unless otherwise agreed by the Company in writing, with written
notice thereof to the Trustee:


 


THE SECURITY EVIDENCED
HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
RESELL OR OTHERWISE TRANSFER THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY EXCEPT (A) TO SEALED AIR CORPORATION OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3)
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE),
IT WILL FURNISH TO SUNTRUST BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE AND UPON THE COMPANY’S REQUEST, TO THE COMPANY), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE AND THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT


 


36

















 


SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. 
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS
SECURITY PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY
UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).  THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF
THE FOREGOING RESTRICTION.


 


Any Security (or security
issued in exchange or substitution therefor) as to which such restrictions on
transfer shall have expired in accordance with their terms or as to conditions
for removal of the foregoing legend set forth therein have been satisfied may,
upon surrender of such Security for exchange to the Security Registrar in
accordance with the provisions of this Section 306, be exchanged for a new
Security or Securities, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 306(b).  If the Restricted Security surrendered for
exchange is represented by a Global Security bearing the legend set forth in
this Section 306(b), the principal amount of the legended Global Security shall
be reduced by the appropriate principal amount and the principal amount of a
Global Security without the legend set forth in this Section 306(b) shall be
increased by an equal principal amount. 
If a Global Security without the legend set forth in this Section 306(b)
is not then outstanding, the Company shall execute and the Trustee shall
authenticate and deliver an unlegended Global Security to the Depositary.


 


(c)           Securities Act
Legend:  Common Stock.  Until the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), any stock certificate representing Common Stock issued
upon conversion of any Security shall bear a legend in substantially the
following form, unless such Common Stock has been sold pursuant to a
registration statement that has been declared effective under the Securities
Act (and which continues to be effective at the time of such transfer) or such
Common Stock has been issued upon conversion of Securities that have been
transferred pursuant to a registration statement that has been declared
effective under the Securities Act, or unless otherwise agreed by the Company
in writing with written notice thereof to the transfer agent:


 


THE COMMON STOCK
EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE.  THE HOLDER HEREOF AGREES
THAT, UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
COMMON STOCK EVIDENCED HEREBY, UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO SEALED


 


37

















 


AIR CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN
A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE), IT WILL FURNISH TO MELLON INVESTOR
SERVICES LLC, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE
AND UPON THE COMPANY’S REQUEST, TO THE COMPANY), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED
HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF
THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE (1)(D) ABOVE OR UPON ANY
TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).


 


Any such Common Stock as
to which such restrictions on transfer shall have expired in accordance with
their terms or as to which the conditions for removal of the foregoing legend
set forth therein have been satisfied may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be exchanged for a new
certificate or certificates for a like number of shares of Common Stock, which
shall not bear the restrictive legend required by this Section 306(c).


 


(d)           Restricted
Securities.  Any Security or Common
Stock issued upon the conversion of a Security that, prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision), is purchased or owned by the
Company or any Affiliate thereof may not be resold by the Company or such
Affiliate unless registered under the Securities Act or resold pursuant to an
exemption from the registration requirements of the Securities Act in a
transaction which results in such Securities or Common Stock, as the case may
be, no longer being “restricted securities” (as defined under Rule 144 under the
Securities Act).


 


Notwithstanding the
foregoing provisions of Section 306(b), (c) and (d), a successor security of
any Security or Common Stock that does not bear a particular form of Restricted
Securities Legend shall not bear such form of legend unless the Company has
reasonable cause to believe that such successor security is a “restricted
security” within the meaning of Rule 144, in which case the Trustee, at the
written direction of the Company, shall


 


38

















 


authenticate and deliver a new Security or a new stock certificate
representing Common Stock, as the case may be, bearing a Restricted Securities
Legend in exchange for such successor security as provided in this Article
Three.


 


SECTION 307.       Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security
is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security 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, any Subsidiary Guarantor and any agent of any of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, 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 has been called for redemption or has been tendered for
redemption upon a Designated Event (and not withdrawn) or has been surrendered
for repurchase on a Repurchase Date (and not withdrawn) or is to be converted
into Common Stock, the Company in its discretion may, instead of issuing a new
Security, pay such Security or authorize the payment of or convert or authorize
the conversion of such Security (without surrender thereof except in the case
of a mutilated Security), as the case may be.


 


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 issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the Company
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 duly
issued hereunder.


 


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


 


SECTION 308.       Payment
of Interest; Interest Rights Preserved.


 


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.


 


39

















 


The Person in whose name
any Security (or its Predecessor Security) is registered on the Security
Register at the close of business on any Regular Record Date with respect to any
Interest Payment Date shall be entitled to receive the interest payable on such
Interest Payment Date, except that the interest payable upon redemption or
repurchase will be payable to the Person to whom principal is payable pursuant
to such redemption or repurchase (unless the Redemption Date or the Repurchase
Date, as the case may be, is an Interest Payment Date, in which case the
semi-annual payment of interest becoming due on such date shall be payable to
the Holders of such Securities registered as such on the applicable Regular
Record Date).


 


Any interest on any
Security 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:


 


(1)           The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Securities (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 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 in the manner provided 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 given,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (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 in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the 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.


 


40

















 


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 309.       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 premium, if any) and (subject to Section 308) 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.


 


SECTION 310.       Cancellation.


 


All Securities
surrendered for payment, redemption, repurchase, conversion, registration of
transfer or exchange 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 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 in accordance with the Trustee’s customary procedures.


 


SECTION 311.       Computation
of Interest.


 


Interest on the
Securities shall be computed on the basis of a 360-day year of twelve
30-day months provided, however, that any overdue interest and
interest on overdue interest on any Securities, shall be computed on the basis
of a 365-day or 366-day year, as the case may be, and the number of days
actually elapsed during the relevant period.


 


SECTION 312.       CUSIP
Numbers.


 


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


 


41

















 


ARTICLE FOUR


 


Satisfaction and Discharge


 


SECTION 401.       Satisfaction
and Discharge of Indenture.


 


This Indenture shall
cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when


 


(1)           either


 


(a)           all Securities theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 307 and (ii) Securities 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 not theretofore delivered to the Trustee for cancellation have
become due and payable, whether at Stated Maturity, any Redemption Date, any
Repurchase Date, a Designated Event Redemption Date, or otherwise, and the
Company deposited or caused to be deposited with the Trustee, any Paying Agent
or the Conversion Agent, if applicable, cash sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity, Redemption Date or Repurchase Date, as the
case may be; or


 


(c)           all such Securities have been
converted into shares of Common Stock;


 


(2)           the
Company has or any Subsidiary Guarantors have, jointly or severally, paid or
caused to be paid all other sums payable hereunder by the Company and under any
Subsidiary Guarantees by any Subsidiary Guarantors, as the case may be; 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 have been complied
with.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 607, the obligations of the Company 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.


 


42

















 


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 or
any Subsidiary Guarantor acting as the Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) 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, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(1)           default in the
payment of any interest upon any Security 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 premium, if any, on) any Security at its Maturity; or


 


(3)           default in the
performance, or breach, of Section 801 hereof or Section 1302 hereof
(relating to the obligation of the Company to cause Subsidiaries to become
Subsidiary Guarantors); or


 


(4)           default in the
Company’s obligation to provide a Designated Event Notice upon the occurrence
of a Designated Event as provided in Section 1110; or


 


(5)           default in the
performance, or breach, of any covenant or warranty of the Company 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), and
continuance of such default or breach for a period of 60 days after there
has been given, in the manner provided in Section 106, 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 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)           a default or
defaults under the terms of any bond(s), debenture(s), note(s) or other
evidence(s) of, or under any mortgage(s), indenture(s), agreement(s) or
instrument(s) under which there may be issued or by which there may be secured
or evidenced, any Indebtedness of the Company or any Restricted Subsidiary with
a principal amount then outstanding, individually or in the aggregate, of at
least


 


43

















 


$25,000,000,
whether such Indebtedness now exists or is hereafter incurred, which default or
defaults (i) shall have resulted in such Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable or (ii) shall constitute the failure to pay all or
any portion of such Indebtedness at the final stated maturity thereof (after
expiration of any applicable grace period) and such default shall not have been
rescinded or such Indebtedness shall not have been discharged within 10
days; or


 


(7)           the entry by a court
having jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company or any Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Restricted Subsidiary under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Restricted Subsidiary or of any substantial part of the property
of the Company or any Restricted Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any Restricted Subsidiary, 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


 


(8)           the commencement by
the Company or any Restricted Subsidiary 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 the Company or any Restricted
Subsidiary to the entry of a decree or order for relief in respect of the
Company or any Restricted Subsidiary 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 the Company or any Restricted Subsidiary or the filing by the Company
or any Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by the Company or any Restricted Subsidiary to the filing of such a
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Company or any Restricted Subsidiary or of any substantial part of the
property of the Company or any Restricted Subsidiary, or the making by the
Company or any Restricted Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company or any Restricted Subsidiary in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any Restricted Subsidiary in
furtherance of any such action.


 


SECTION 502.       Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default
(other than an Event of Default specified in Section 501(7) or (8) that
occurs with respect to the Company) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding


 


44

















 


Securities may declare the principal of all the Securities 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 and
any accrued interest shall become immediately due and payable.  If an Event of Default specified in
Section 501(7) or (8) involving the Company occurs, the principal of and
any accrued interest on the Securities then Outstanding 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 has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if


 


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


 


(a)           all overdue interest on all
Securities,


 


(b)           the principal of (and premium, if
any, on) any Securities which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate provided in
the Securities for overdue principal, premium, if any, and interest on the
Securities (which shall include the 1.00% additional interest referred to
therein),


 


(c)           to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate provided in the
Securities for overdue principal, premium, if any, and interest on the
Securities (which shall include the 1.00% additional interest referred to
therein), 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, other than the non-payment of the principal of Securities
which have 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.


 


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


 


45

















 


(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 premium, if any) and interest, and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate
provided therefor in the Securities (which shall include the 1.00% additional
interest referred to therein) 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
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders 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 of the Company or its creditors or
of any Subsidiary Guarantor or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions, including participation as a member, voting or otherwise, of any
committee of creditors, which would be authorized under the Trust Indenture Act
(as if such Act applied) 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.


 


Notwithstanding the
foregoing, 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 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.


 


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


 


46

















 


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 premium, if any) 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:  To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on the Securities
and, to the extent that payment of such interest has been collected by the Trustee,
interest upon overdue interest at the rate provided in the Securities for
overdue principal, premium, if any, and interest on the Securities (which shall
include the 1.00% additional interest referred to therein), 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 premium, if any) and interest, respectively;
and


 


THIRD:  To the payment of the remainder, if any, to
the Company, its successors or assigns, or to whoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may direct.


 


SECTION 507.       Limitation
on Suits.


 


No Holder of any Security
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;


 


(2)           the Holders of not
less than 25% in principal amount of the Outstanding Securities 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 indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;


 


47

















 


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


 


(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;


 


it being understood and
intended that no one or more 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 Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all the Holders.


 


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


 


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 premium, if any) and (subject to Section 308) interest on such
Security on the respective Stated Maturity expressed in such Security (or, in
the case of redemption or repurchase, on the Redemption Date or Repurchase
Date, as the case may be) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the written consent of
such Holder.


 


Anything in this Indenture or the Securities to the
contrary notwithstanding, the Holder of any Security, without the consent of
either the Trustee or the holder of any other Security, in its own behalf and
for its own benefit, may enforce, and may institute and maintain any proceeding
suitable to enforce, its rights of conversion as provided herein.


 


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,
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 307, 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


 


48

















 


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 Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given
by this Article 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 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, 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 may on behalf of
the Holders of all the Securities waive any past default hereunder and its
consequences, except a default


 


(1)           in the payment of
the principal of (or premium, if any) or interest on any Security, or


 


(2)           as a result of a
failure by the Company to convert any Securities into Common Stock, or


 


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


 


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


 


49

















 


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, including legal fees and expenses,
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act (as if such Act applied); provided that this
Section shall not be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, any Subsidiary Guarantor, the Trustee or any Holder, or group of
Holders, holding in the aggregate at least 10% in principal amount of the
Outstanding Securities or in any suit instituted by any Holder for the
enforcement of principal of (and premium, if any) or interest on any Security
on or after the respective Stated Maturity expressed in such Security (or, in
the case of redemption or repurchase, on or after the Redemption Date or
Repurchase Date, as the case may be).


 


SECTION 515.       Waiver
of Stay or Extension Laws.


 


The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (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 provided by the Trust Indenture Act
(as if such Act applied). 
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.


 


Subject to the provisions
of Section 603(i), the Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act (as if such
Act applied); provided, however, that in the case of any default
of the character specified in Section 501(4), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof provided,
further that, except in the case of default in the payment of the


 


50

















 


principal of, or premium, if any, or interest on any of the Securities,
the Trustee shall be protected in withholding such notice if and so long as a
trust committee of directors and/or responsible officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders.  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.


 


SECTION 603.       Certain
Rights of Trustee.


 


Subject to the provisions
of Section 601:


 


(a)           the Trustee may conclusively 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;


 


(b)           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 may be
sufficiently evidenced by a Board Resolution;


 


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


 


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


 


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


 


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


 


(g)           the Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee


 


51

















 


shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;


 


(h)           the Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;


 


(i)            the Trustee shall not be deemed to
have knowledge of any default or Event of Default unless a responsible officer
(with direct responsibility for the administration of this Indenture) of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture; and


 


(j)            the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.


 


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


 


The recitals contained
herein and in the Securities and in any Subsidiary Guarantee, except the
Trustee’s certificates of authentication, shall be taken as the statements of
the Company or the applicable Subsidiary Guarantor as the case may be, and the
Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture, the Securities or any Subsidiary
Guarantees.  The Trustee shall not 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 Conversion Agent, any Security
Registrar or any other agent of the Company, any Subsidiary Guarantor or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company, any Subsidiary Guarantor and any other obligor upon the
Securities and any Subsidiary Guarantees with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Conversion 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 in writing with the Company or any Subsidiary Guarantor, as
the case may be.


 


SECTION 607.       Compensation
and Reimbursement.


 


The Company agrees


 


52

















 


(1)           to pay to the Trustee
from time to time such compensation as shall be agreed in writing between the
Company and the Trustee 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
gross negligence or bad faith; and


 


(3)           to indemnify each of
the Trustee and any predecessor Trustee for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense, including taxes (other
than taxes based on the income of the Trustee) incurred without gross
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses,
including reasonable attorney’s fees and expenses, of defending itself against
any claim (whether asserted by the Company, any Subsidiary Guarantor, a Holder
or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


The Trustee shall have a
lien prior to the Securities as to all property and funds held by it hereunder
for any amount owing it or any predecessor Trustee pursuant to this
Section 607, except with respect to funds held in trust for the benefit of
the Holders of particular Securities.


 


When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 501(7) or Section 501(8), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.


 


The provisions of this
Section shall survive the resignation or removal of the Trustee and the
termination of this Indenture.


 


SECTION 608.       Disqualification;
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, this
Indenture.


 


SECTION 609.       Corporate
Trustee Required; Eligibility.


 


There shall at all times
be a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such, has a combined capital and surplus of at
least $50,000,000 and has its Corporate Trust Office located in the Borough of
Manhattan, The City of New York.  If
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


 


53

















 


Section, 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 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.


 


(a)           No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 611.


 


(b)           The Trustee may
resign at any time by giving written notice thereof to the Company.  If an instrument of acceptance by a
successor Trustee 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.


 


(c)           The Trustee may be
removed at any time by Act of the Holders of a majority in principal amount of
the Outstanding Securities, delivered to the Trustee and the Company.  If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of a
successor.


 


(d)           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,
(i) the Company by a Board Resolution may remove the Trustee, or
(ii) 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 and the appointment of a successor Trustee.


 


(e)           If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee. 
If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and


 


54

















 


supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, 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 appointment of a
successor Trustee.


 


(f)            The Company shall
give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all Holders in the manner provided in
Section 106.  Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.


 


SECTION 611.       Acceptance
of Appointment by Successor.


 


Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Company 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 written 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.  Upon request of any such successor Trustee,
the Company 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.


 


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


 


SECTION 613.       Preferential
Collection of Claims Against Company.


 


If and when the Trustee
shall be or become a creditor of the Company, any Subsidiary Guarantor or any
other obligor upon the Securities or any Subsidiary Guarantee, the Trustee
shall be subject to the provisions of the Trust Indenture Act (as if such Act
applied) regarding the collection of claims against the Company, any Subsidiary
Guarantor or any such other obligor.


 


55

















 


SECTION 614.       Appointment
of Authenticating Agent.


 


The Trustee may appoint
an Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer, partial redemption or pursuant to
Section 307, and Securities so authenticated, shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if such Securities had been 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 reasonably acceptable to the Company
and shall at all times be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority.  If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.  If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.


 


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


 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and 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 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 reasonably acceptable
to the Company and shall send written notice of such appointment, in the manner
provided in Section 106, to all Holders. 
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.


 


The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.


 


56

















 


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


 


Dated:


 


This is one of the
Securities described in the within-mentioned Indenture.


 


	
   

  	
  SUNTRUST BANK,

  
	
   

  	
  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


 


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


 


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


 


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


 


SECTION 702.       Preservation
of Information; Communications to Holders.


 


(a)           The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 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.


 


(b)           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 duties


 


57

















 


of the Trustee, shall be as provided by the Trust Indenture Act as if
this Indenture were subject to such Act.


 


(c)           Every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company 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 applicable law or in accordance
with the provisions of this Indenture.


 


SECTION 703.       [Reserved].


 


SECTION 704.       Reports
by Company.


 


The Company shall file
with the Trustee and transmit to Holders, such information, documents and other
reports as it is required to file with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 within
15 days after the same is so required to be filed with the Commission.  Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


SECTION 705.       
Rule 144A Information Requirement.


 


Within the period prior
to the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available to any
holder or beneficial holder of Securities or any shares of Common Stock issued
upon conversion thereof which continue to be Restricted Securities in
connection with any sale thereof and any prospective purchaser of Securities or
such Common Stock designated by such holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the Securities Act upon
the request of any holder or beneficial holder of the Securities or such Common
Stock and it will take such further action as any holder or beneficial holder
of such Securities or such Common Stock may reasonably request, all to the
extent required from time to time to enable such holder or beneficial holder to
sell its Securities or Common Stock without registration under the Securities
Act within the limitation of the exemption provided by Rule 144A, as such Rule
may be amended from time to time.  Upon
the request of any holder or any beneficial holder of the Securities or such
Common Stock, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.


 


58

















 


ARTICLE EIGHT


 


Merger, Consolidation, Etc.


 


SECTION 801.       Mergers,
Consolidations and Certain Transfers, Leases and Acquisitions of Assets.


 


The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, unless:


 


(1)           in case the Company
shall consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be 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 premium, if any)
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; and


 


(2)           immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Company or a Subsidiary as a result of such transaction as
having been incurred by the Company 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.


 


SECTION 802.       Successor Substituted.


 


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


 


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 of the Company
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 and the assumption by any such
successor of the covenants of the Company herein and in the Securities; or


 


59

















 


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


 


(3)           to secure the
Securities pursuant to the requirements of Section 1009 or otherwise; or


 


(4)           to provide for the
issuance of Additional Securities in accordance with the provisions of its
Indenture; or


 


(5)           to cure any ambiguity,
to correct or supplement any provision herein or in any Subsidiary Guarantee
which may be inconsistent with any other provision herein or in any Subsidiary
Guarantee, or to make any other provisions with respect to matters or questions
arising under this Indenture or any Subsidiary Guarantee which shall not be
inconsistent with the provisions of this Indenture, provided that such
action pursuant to this Clause (5) shall not adversely affect the
interests of the Holders in any material respect; or


 


(6)           to add to, change or
eliminate any of the provisions of this Indenture to permit or facilitate the
issuance of Global Securities and matters related thereto, provided that
such action pursuant to this Clause (6) shall not adversely affect the
interests of the Holders in any material respect; or


 


(7)           to provide for
conversion rights of the Holders of Securities pursuant to the requirements of
Section 1206 and the redemption obligations of the Company pursuant to the
requirements of Section 1110.


 


Notwithstanding any other
provision of the Indenture or the Securities, the Registration Rights Agreement
and the obligation to pay Liquidated Damages thereunder may be amended,
modified or waived in accordance with the provisions of the Registration Rights
Agreement.


 


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, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution of the Company, 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 any Subsidiary Guarantee or of
modifying in any manner the rights of the Holders under this Indenture or any
Subsidiary Guarantee; 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 interest on, any Security,
or reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption or repurchase thereof, or change the 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 any such payment on or after the Stated Maturity thereof (or, in
the case


 


60

















 


of redemption
or repurchase, on or after the Redemption Date or Repurchase Date, as the case
may be), or


 


(2)           modify the
provisions of any Subsidiary Guarantee or the provisions of this Indenture
relating to any such Subsidiary Guarantee in any way that shall adversely
affect the interests of each Holder, or


 


(3)           change the
obligation of the Company to redeem any Security on a redemption date in a
manner adverse to the Holders of Securities or change the obligation of the
Company to redeem any Security upon the happening of a Designated Event in a
manner adverse to the Holders of Securities or change the obligation of the
Company to repurchase any Security on a Repurchase Date in a manner adverse to
the Holders of Securities or impair the right to convert the Securities into
Common Stock subject to the terms set forth herein, including Section 1206, or


 


(4)           reduce the
percentage in principal amount of the Outstanding Securities, 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


 


(5)           modify any of the
provisions of this Section, Section 513 or Section 1011 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.


 


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 Officers’
Certificate and 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.


 


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SECTION 905.       Reference
in Securities to Supplemental Indentures.


 


Securities 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 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 and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.


 


ARTICLE TEN


 


Covenants


 


SECTION 1001.     Payment of Principal, Premium and Interest.


 


The Company will duly and
punctually pay the principal of (and premium, if any) and interest on the
Securities in accordance with the terms of the Securities and this Indenture.


 


SECTION 1002.     Maintenance
of Office or Agency.


 


The Company will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange or for conversion,
redemption or repurchase and where notices and demands to or upon the Company
or any Subsidiary Guarantor in respect of the Securities, any Subsidiary
Guarantees 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 office of the Trustee located at SunTrust
Bank c/o Computershare Trust Company of New York, Wall Street Plaza, 88 Pine
Street, 19th Floor, New York, New York 10005, and the Company 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 (in or outside the
Borough of Manhattan, The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York, for such purposes. 
The Company 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 Security Payments to Be Held in Trust.


 


If the Company or any
Subsidiary Guarantor shall at any time act as the Paying Agent, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such


 


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sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.


 


Whenever the Company
shall have one or more Paying Agents, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities, 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 in writing of its action
or failure so to act.


 


The Company will cause
each Paying Agent 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 (i) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent (as if such Act applied) and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.


 


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.


 


Subject to any applicable
abandoned property laws, any money deposited with the Trustee or any Paying
Agent, or then held by the Company or any Subsidiary Guarantor, in trust for
the payment of the principal of (and premium, if any) or interest on any Security
and remaining unclaimed for two years after such principal (and premium, if
any) or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company or any Subsidiary Guarantor)
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, 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.


 


The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers’ Certificate, stating whether
or not to the best knowledge of the signers thereof the Company is in default
in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard


 


63

















 


to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.


 


The Company shall deliver
to the Trustee, as soon as possible and in any event within 30 days after
the Company becomes aware of the occurrence of any 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 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 its corporate existence.


 


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 Guarantor to be maintained and kept in good condition, repair
and working order 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 of its Subsidiaries or upon the income, profits
or property of the Company or any of its Subsidiaries, 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 of its Subsidiaries; 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 and for
which adequate reserves have been established in accordance with generally
accepted accounting principles or which if unpaid would reasonably not be
expected to result in a material adverse effect on the business, results of
operations, or financial condition of the Company and its Subsidiaries, taken
as a whole.


 


SECTION 1008.     Maintenance of Insurance.


 


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


 


64

















 


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


 


SECTION 1009.     Limitation
on Liens.


 


The Company shall not,
and shall not permit any Restricted Subsidiary of the Company to, create, assume
or suffer to exist any Lien securing Indebtedness on (a) any Principal Property
now owned or hereafter acquired by the Company or any Restricted Subsidiary or
(b) shares of capital stock or Indebtedness of any Material Subsidiary owned by
or owing to the Company or any Restricted Subsidiary, or on any income,
revenues or rights in respect of any such capital stock or Indebtedness, unless
the Securities shall be equally and ratably secured.  This restriction shall not apply, however, to:


 


(i)            Liens existing on
the date of this Indenture; provided that such Liens secure only those
obligations which they secure as of the date of this Indenture;


 


(ii)           Liens on any
property securing Indebtedness incurred or assumed after the date of the
Indenture for the purposes of financing all or any part of the cost of
purchasing, constructing or improving such property (including any Capitalized
Lease); provided that such Lien attaches to such property concurrently
with or within 180 days after the purchase, completion of construction or
improvement of such property and that such Lien applies to no other property of
the Company or any Subsidiary;


 


(iii)          any Lien on any
property of any Person existing at the time such Person becomes a Subsidiary of
the Company and not incurred in contemplation of such event;


 


(iv)          any Lien on any
property of any Person existing at the time such Person is merged or
consolidated with or into the Company or any of its Subsidiaries and not
incurred in contemplation of such event;


 


(v)           any Lien on any
property existing prior to the acquisition thereof by the Company or any of its
Subsidiaries and not incurred in contemplation of such acquisition;


 


(vi)          Liens securing any
obligations of any Subsidiary of the Company to the Company or a Subsidiary;


 


(vii)         Liens incurred to
extend, renew or replace Liens referred to in clauses (i) through (vi) above; provided
that any such extension, renewal or replacement Lien shall be limited to the
property covered by the Lien extended, renewed or replaced and that the
obligation secured by such new Lien shall not be greater in amount than the
obligations secured by the Lien extended, renewed or replaced (plus an amount
in respect of reasonable financing fees and related transaction costs);


 


(viii)        Liens incurred pursuant
to any industrial revenue bond or similar conduit financing to secure the
related Indebtedness, so long as such Lien is limited to the property of the
related project;


 


65

















 


(ix)           Liens on Accounts
Receivable that are the subject of a Permitted Receivables Financing (and any
related property that would ordinarily be subjected to a Lien in connection
with such Permitted Receivables Financing, such as proceeds and records);


 


(x)            Liens for taxes,
governmental assessments, charges or levies in the nature of taxes not yet due
and payable, or Liens for taxes, governmental assessments, charges or levies in
the nature of taxes being contested in good faith and by appropriate
proceedings for which adequate reserves, to the extent required by GAAP, have
been established;


 


(xi)           Liens imposed by
law, which were incurred in the ordinary course of business and do not secure
Indebtedness, such as carriers’ warehousemen’s, materialmen’s, repairmen’s, and
mechanic’s liens and other similar Liens arising in the ordinary course of
business, including without limitation, Liens in respect of litigation claims
made or filed against the Company or any of its Subsidiaries in the ordinary
course of business, and (x) which do not in the aggregate materially detract
from the value of the property or assets subject to such Lien or materially
impair the use of such property in the operation of the business of the Company
and its Subsidiaries or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;


 


(xii)          Permitted
Encumbrances;


 


(xiii)         utility deposits
and pledges or deposits in connection with the worker’s compensation,
unemployment insurance and other social security legislation, or to secure the
performance of tenders, statutory obligations, surety, customs and appeal
bonds, bids, leases, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);


 


(xiv)        landlord’s liens
under leases to which the Company or any of its Subsidiaries is a party;


 


(xv)         Liens arising from
precautionary UCC financing statement or similar filings regarding operating
leases; and


 


(xvi)        Liens not otherwise
permitted by the foregoing clauses (i) through (xv) securing Indebtedness in an
aggregate principal amount outstanding at any time not exceeding the greater of
(x) $235,000,000 and (y) 15% of Consolidated Net Tangible Assets as at the last
day of the most recently ended fiscal quarter of the Company for which the
Company has publicly issued financial statements.


 


SECTION 1010.     Limitations
on Sale and Leaseback Transactions.


 


The Company shall not
enter into, or allow any Restricted Subsidiary of the Company to enter into,
any Sale and Leaseback Transaction except for Sale and Leaseback Transactions:


 


66

















 


(i)            to which the sole
parties are the Company and one or more Restricted Subsidiaries of the Company;


 


(ii)           which do not
involve a lease term of more than three years; or


 


(iii)          in connection with
which the Company or such Restricted Subsidiary, within 120 days after the
effective date of such Sale and Leaseback Transaction, applies an amount equal
to the greater of (a) the net proceeds of such sale or transfer and (b) the
fair value, as determined by the Company’s Board of Directors at the time of
such sale or transfer, of the Principal Property sold pursuant to the Sale and
Leaseback Transaction,


 


(x)            to the repayment or retirement
(other than mandatory repayment or retirement) of Funded Debt of the Company or
such Restricted Subsidiary; or


 


(y)                                 to
the purchase of other property that will constitute Principal Property.


 


SECTION 1011.     Waiver
of Certain Covenants.


 


The Company may omit in
any particular instance to comply with any covenant or condition set forth in
Sections 1005 through 1010, inclusive, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant 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 covenant or condition shall remain in full force
and effect.


 


SECTION 1012.     Liquidated
Damages Notice.


 


In the event that the
Company is required to pay Liquidated Damages to Holders of Securities pursuant
to the Registration Rights Agreement, the Company will provide written notice
(“Liquidated Damages Notice”) to
the Trustee of its obligation to pay Liquidated Damages no later than fifteen
(15) days prior to the proposed payment date for the Liquidated Damages, and
the Liquidated Damages Notice shall set forth the amount of Liquidated Damages
to be paid by the Company on such payment date.  The Trustee shall not at any time be under any duty or
responsibility to any Holder of Securities to determine the Liquidated Damages,
or with respect to the nature, extent or calculation of the amount of
Liquidated Damages when made, or with respect to the method employed in such
calculation of the Liquidated Damages.


 


ARTICLE ELEVEN


 


Redemption and Repurchase of Securities


 


SECTION 1101.     Redemption
of Securities at the Option of the Company.


 


Except as otherwise
provided in Section 1110, the Company may not redeem any Securities prior to
July 2, 2007.  At any time on or after
July 2, 2007 and prior to maturity, the Securities may be redeemed as a whole
at any time or in part from time to time, at the option of


 


67

















 


the Company, at the Redemption Prices (expressed as percentages of the
principal amount of the Securities) set forth below, plus, in each case,
accrued and unpaid interest, if any, to, but excluding the Redemption Date:


 


	
  Year

  	
   

  	
  Percentages

  	
   

  
	
  On
  July 2, 2007 through June 29, 2008

  	
   

  	
  101.286

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On
  June 30, 2008 through June 29, 2009

  	
   

  	
  100.857

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On
  June 30, 2009 through June 29, 2010

  	
   

  	
  100.429

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On
  June 30, 2010 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


SECTION 1102.     Applicability
of Article.


 


Redemption of Securities
at the election of the Company and redemption of Securities at the option of
Holders if there shall occur a Designated Event, as permitted by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.


 


SECTION 1103.     Election
to Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities pursuant to Section 1101 shall be
evidenced by a Board Resolution.  In
case of any redemption at the election of the Company of less than all the
Securities, the Company shall, at least five Business Days prior to the date on
which notice of such redemption is given to Holders of Securities (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing
of such Redemption Date and of the principal amount of Securities to be
redeemed.  In addition, in case of any
redemption at the election of the Company, the Company shall, at least five
Business Days prior to the date on which notice of such redemption is given to
Holders of Securities (unless a shorter notice shall be satisfactory to the
Trustee), furnish the Trustee with an Officers’ Certificate as to the aggregate
principal amount of Securities to be redeemed.


 


SECTION 1104.     Selection
by Trustee of Securities to Be Redeemed.


 


If less than all the
Securities are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities not previously called for redemption,
by lot, on a pro rata basis or by another 
method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Securities of a
denomination larger than $1,000.   If
any Security selected for partial redemption is submitted for conversion in
part after such selection, the portion of such Security submitted for conversion
shall be deemed (so far as may be possible) to be the portion to be selected
for redemption.  The Securities (or
portions thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Security is submitted for
conversion in part before the mailing of the notice of redemption.


 


Upon any redemption of
less than all of the outstanding Securities, the Company and the Trustee may
(but need not), solely for purposes of determining the pro rata allocation


 


68

















 


among such Securities as are unconverted and outstanding at the time of
redemption, treat as outstanding any Securities surrendered for conversion
during the period of fifteen (15) days next preceding the mailing of a notice
of redemption and may (but 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.


 


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


 


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


 


SECTION 1105.     Notice
of Redemption.


 


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


 


All notices of redemption
shall identify the Securities (including CUSIP number) to be redeemed and shall
state:


 


(1)           the Redemption Date,


 


(2)           the Redemption
Price,


 


(3)           if less than all the
Outstanding Securities are to be redeemed, the identification (and, in the case
of partial redemption of any Securities, the principal amounts) of the
particular Securities 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 that interest thereon will cease to accrue on and
after said date,


 


(5)           the place or places
where such Securities are to be surrendered for payment of the Redemption
Price,


 


(6)           the aggregate
principal amount of all Securities that will have been redeemed pursuant to
Section 1101 through and including the Redemption Date for which such notice is
being given, and


 


(7)           the current
Conversion Rate and the date on which the right to convert such Securities or
portions thereof into Common Stock will expire.


 


69

















 


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 written request, by the Trustee in the name and at
the expense of the Company.


 


SECTION 1106.     Deposit
of Redemption Price.


 


Prior to 10:00 a.m., New
York City time, on any Redemption Date, the Company shall deposit with the
Trustee or other Paying Agent (or, if the Company or a Subsidiary Guarantor is
acting as the Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price
of, and accrued interest on, all the Securities which are to be redeemed on
that date (other than those theretofore surrendered for conversion into Common
Stock).  If any Security called for
redemption is converted pursuant hereto prior to such redemption date, 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
its written request, or, if then held by the Company or any Subsidiary
Guarantor, shall be discharged from such trust.


 


SECTION 1107.     Securities
Payable on Redemption Date.


 


Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, unless
converted into Common Stock pursuant to the terms hereof, 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 and, after the close of business on the Business Day immediately
preceding the Redemption Date, such Securities shall cease to be convertible
into Common Stock.  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, but excluding, the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Date according to their terms and the provisions of Section 308.


 


Notwithstanding the
foregoing, the Trustee shall not redeem any Securities or mail any notice of
redemption during the continuance of a default in payment of interest or
premium, if any, on the Securities.  If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate equal to 1.00% per annum plus the
rate borne by the Security (without duplication of the 1.00% increase provided
for under Section 503 hereof) and such Security shall remain convertible into
Common Stock until the principal and premium, if any, and interest shall have
been paid or duly provided for.


 


SECTION 1108.     Securities
Redeemed in Part.


 


Any Security which is to
be redeemed only in part shall be surrendered at an office or agency of the
Company designated for that purpose pursuant to Section 1002 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer


 


70

















 


in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities (each with,
if applicable, a Subsidiary Guarantee of each Subsidiary Guarantor executed by
such Subsidiary Guarantor), 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.


 


SECTION 1109.     Conversion
Arrangement on Call for Redemption.


 


In connection with any
redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities by an agreement with one or more investment banks
or other purchasers to purchase such Securities by paying to the Trustee in
trust for the Holders, on or before the Redemption Date, an amount not less
than the applicable Redemption Price, together with interest accrued to, but
excluding, the Redemption Date, of such Securities.  Notwithstanding anything to the contrary contained in this
Article Eleven, the obligation of the Company to pay the Redemption Price of
such Securities, together with interest accrued to, but excluding, the
Redemption Date, shall be deemed to be satisfied and discharged to the extent
such amount is so paid by such purchasers. 
If such an agreement is entered into, a copy of which will be filed with
the Trustee prior to the Redemption Date, any Securities not duly surrendered
for conversion by the holders thereof may, at the option of the Company, be
deemed, to the fullest extent permitted by law, acquired by such purchasers
from such holders and (notwithstanding anything to the contrary contained in
Article Twelve) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the Redemption Date (and the
right to convert any such Securities shall be extended through such time),
subject to payment of the above amount as aforesaid.  At the direction of the Company, the Trustee shall hold and
dispose of any such amount paid to it in the same manner as it would monies
deposited with it by the Company for the redemption of Securities.  Without the Trustee’s prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture.


 


SECTION 1110.     Redemption
at Option of Holders Upon a Designated Event.


 


(a)           If there shall occur
a Designated Event at any time prior to maturity of the Securities, then each
Holder shall have the right, at such Holder’s option, to require the Company to
redeem all of such Holder’s Securities, or any portion thereof that is a
multiple of $1,000 principal amount, on the date (the “Designated Event Redemption Date”)
that is thirty (30) days after the date of the Designated Event Notice (as
defined in Section 1110(b)) of such Designated Event (or, if such 30th day is
not a Business Day, the next succeeding Business Day) at a Redemption Price
equal to 100% of the principal amount thereof, together with accrued interest
to, but excluding, the Designated Event Redemption Date; provided that
if such Designated Event Redemption Date is an Interest Payment Date, then the
interest payable on such Interest Payment Date shall be paid to the Holders of
record of the Securities on the applicable Regular Record Date instead of the
Holders surrendering the Securities for redemption on such date.


 


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Upon presentation of any
Security redeemed in part only, the Company shall execute and, upon the
Company’s written direction to the Trustee, the Trustee shall authenticate and
make available for delivery to the Holder thereof, at the expense of the
Company, a new Security or Securities, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Securities
presented.


 


(b)           On or before the
tenth day after the occurrence of a Designated Event, the Company or at its
written request (which must be received by the Trustee at least five (5)
Business Days prior to the date the Trustee is requested to give notice as
described below, unless the Trustee shall agree in writing to a shorter
period), the Trustee, in the name of and at the expense of the Company, shall
mail or cause to be mailed to all holders of record on the date of the
Designated Event a notice (the “Designated Event Notice”) of the occurrence of such Designated
Event and of the redemption right at the option of the Holders arising as a
result thereof.  If the Company shall
give such notice, the Company shall also deliver a copy of the Designated Event
Notice to the Trustee at such time as it is mailed to Holders.  Concurrently with the mailing of any
Designated Event Notice, the Company shall issue a press release announcing
such Designated Event referred to in the Designated Event Notice, the form and
content of which press release shall be determined by the Company in its sole
discretion.  The failure to issue any
such press release or any defect therein shall not affect the validity of the
Designated Event Notice or any proceedings for the redemption of any Security
which any Holder may elect to have the Company redeem as provided in this
Section 1110.


 


Each Designated Event
Notice shall specify the circumstances constituting the Designated Event, the
Designated Event Redemption Date, the price at which the Company shall be
obligated to redeem Securities, that the holder must exercise the redemption
right on or prior to the close of business on the Designated Event Redemption
Date (the “Designated Event Expiration Time”), that the holder shall have the
right to withdraw any Securities surrendered prior to the Designated Event
Expiration Time, a description of the procedure which a Holder must follow to
exercise such redemption right and to withdraw any surrendered Securities, the
place or places where the holder is to surrender such holder’s Securities, the
amount of interest accrued on each Security to (but excluding) the Designated
Event Redemption Date and the CUSIP number or numbers of the Securities (if
then generally in use).


 


No failure of the Company
to give the foregoing notices and no defect therein shall limit the Holders’
redemption rights or affect the validity of the proceedings for the redemption
of the Securities pursuant to this Section 1110.


 


(c)           For a Security to be
so redeemed at the option of the holder, the Company must receive at the office
or agency of the Company maintained for that purpose pursuant to Section 1002,
such Security with the form entitled “Option to Elect Redemption Upon A
Designated Event” on the reverse thereof duly completed, together with such
Securities duly endorsed for transfer, on or before the Designated Event
Expiration Time.  All questions as to
the validity, eligibility (including time of receipt) and acceptance of any
Security for redemption shall be determined by the Company, whose determination
shall be final and binding absent manifest error.


 


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(d)           Prior to 10:00 am
(New York City Time) on the Business Day following the Designated Event
Redemption Date, the Company will deposit with the Trustee or with one or more
Paying Agents (or, if the Company or any Subsidiary Guarantor is acting as the
Paying Agent, set aside, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to redeem on the Designated Event
Redemption Date all the Securities to be redeemed on such date at the
appropriate Redemption Price, together with accrued interest to, but excluding,
the Designated Event Redemption Date. 
Payment for Securities surrendered for redemption (and not withdrawn)
prior to the Designated Event Expiration Time will be made promptly (but in no
event more than five (5) Business Days) following the Designated Event
Redemption Date by mailing checks for the amount payable to the holders of such
Securities entitled thereto as they shall appear in the Security Register.


 


(e)           In the case of a
reclassification, change, consolidation, merger, combination, sale or
conveyance to which Section 1206 applies, in which the Common Stock of the
Company is changed or exchanged as a result into the right to receive stock,
securities or other property or assets (including cash), which includes shares
of Common Stock of the Company or shares of common stock of another Person that
are, or upon issuance will be, traded on a United States national securities
exchange or approved for trading on an established automated over-the-counter
trading market in the United States and such shares constitute at the time such
change or exchange becomes effective in excess of 50% of the aggregate fair
market value of such stock, securities or other property or assets (including
cash) (as determined by the Company, which determination shall be conclusive
and binding), then the Person formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture (accompanied by an Opinion of
Counsel that such supplemental indenture complies with this Indenture)
modifying the provisions of this Indenture relating to the right of holders of
the Securities to cause the Company to repurchase the Securities following a
Designated Event, including without limitation the applicable provisions of
this Section 1110 and the definitions of Common Stock and Designated Event, as
appropriate, as determined in good faith by the Company (which determination
shall be conclusive and binding), to make such provisions apply to such other
Person if different from the Company and the common stock issued by such Person
(in lieu of the Company and the Common Stock of the Company).


 


(f)            The Company will
comply with the provisions of Rule 13e-4 and any other tender offer rules under
the Exchange Act to the extent then applicable in connection with the
redemption rights of the holders of Securities in the event of a Designated
Event.


 


SECTION 1111.     Repurchase
of Securities by the Company at Option of Holder.


 


Securities shall be
purchased by the Company pursuant to the terms of the Securities at the option
of the holder on June 30, 2010, June 30, 2013, June 30, 2018, June 30, 2023 and
June 30, 2028  (each, a “Repurchase Date”), at a purchase price
of 100% of the principal amount, plus any accrued and unpaid interest, in each
case, to, but excluding, such Repurchase Date, subject to the provisions of
Section 1112.  Repurchases of Securities
under this Section 1111 shall be made, at the option of the holder thereof,
upon:


 


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(a)           delivery to the
Trustee (or other Paying Agent appointed by the Company) by a holder of a duly
completed Repurchase Notice (a “Repurchase Notice”) in the form set forth on
the reverse of the Security during the period beginning at any time from the
opening of business on the date that is 20 Business Days prior to the
applicable Repurchase Date until the close of business on such Repurchase Date;
and


 


(b)           delivery or
book-entry transfer of the Securities to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the applicable
Repurchase Notice (together with all necessary endorsements) at the Corporate
Trust Office of the Trustee (or other Paying Agent appointed by the Company),
such delivery being a condition to receipt by the holder of the purchase price
therefor; provided that such purchase price shall be so paid pursuant to
this Section 1111 only if the Security so delivered to the Trustee (or other
Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Repurchase Notice.


 


The Company shall
purchase from the holder thereof, pursuant to this Section 1111, a portion of a
Security, if the principal amount of such portion is $1,000 or an integral
multiple of $1,000.  Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.


 


Any purchase by the
Company contemplated pursuant to the provisions of this Section 1111 shall be
consummated by the delivery of the consideration to be received by the holder
promptly following the later of the Repurchase Date and the time of the
book-entry transfer or delivery of the Security.


 


Notwithstanding anything
herein to the contrary, any holder delivering to the Trustee (or other Paying
Agent appointed by the Company) the Repurchase Notice contemplated by this
Section 1111 shall have the right to withdraw such Repurchase Notice at any
time prior to the close of business on the Repurchase Date by delivery of a
written notice of withdrawal to the Trustee (or other Paying Agent appointed by
the Company) in accordance with Section 1113.


 


The Trustee (or other
Paying Agent appointed by the Company) shall promptly notify the Company of the
receipt by it of any Repurchase Notice or written notice of withdrawal thereof.


 


SECTION 1112.     Procedures
for the Repurchase of Securities.


 


(a)           At least three
Business Days before each Company Repurchase Notice Date, the Company shall
deliver an Officers’ Certificate to the Trustee specifying:


 


(i)            the information
required by Section 1112(c) in the Company Repurchase Notice, and


 


(ii)           whether the Company
desires the Trustee to give the Company Repurchase Notice required by Section
1112(c).


 


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(b)           The Company
Repurchase Notice, as provided in Section 1112(c), shall be sent to holders not
less than 20 Business Days prior to such Repurchase Date (the “Company Repurchase Notice Date”).


 


(c)           In connection with
any repurchase of Securities, the Company shall, no less than 20 Business Days
prior to each Repurchase Date, give notice to holders (with a copy to the Trustee)
setting forth information specified in this Section 1112(c) (the “Company Repurchase Notice”).


 


Each Company Repurchase
Notice shall:


 


(1)           state the repurchase
price and the Repurchase Date to which the Company Repurchase Notice relates;


 


(2)           include a form of
Repurchase Notice;


 


(3)           state the name and
address of the Trustee (or other Paying Agent or Conversion Agent appointed by
the Company);


 


(4)           state that
Securities must be surrendered to the Trustee (or other Paying Agent appointed
by the Company) to collect the purchase price;


 


(5)           if the Securities
are then convertible, state that Securities as to which a Repurchase Notice has
been given may be converted only if the Repurchase Notice is withdrawn in
accordance with the terms of this Indenture; and


 


(6)           state the CUSIP
number of the Securities.


 


Company Repurchase
Notices may be given by the Company or, at the Company’s written request, the
Trustee shall give such Company Repurchase Notice in the Company’s name and at
the Company’s expense.


 


(d)           The Company will
comply with the provisions of Rule 13e-4 and any other tender offer rules under
the Exchange Act to the extent then applicable in connection with the
repurchase rights of the holders of Securities.


 


SECTION 1113.     Effect
of Repurchase Notice.


 


Upon receipt by the
Trustee (or other Paying Agent appointed by the Company) of the Repurchase
Notice specified in Section 1111, the holder of the Security in respect of
which such Repurchase Notice was given shall (unless such Repurchase Notice is
validly withdrawn) thereafter be entitled to receive solely the purchase price
with respect to such Security.  Such
purchase price shall be paid to such holder, subject to receipt of funds and/or
Securities by the Trustee (or other Paying Agent appointed by the Company),
promptly following the later of (x) the Repurchase Date with respect to
such Security (provided the holder has satisfied the conditions in Section
1111) and (y) the time of delivery of such Security to the Trustee (or
other Paying Agent appointed by the Company) by the holder thereof in the
manner required by Section 1111. 
Securities in respect of which a Repurchase Notice has been given by


 


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the holder thereof may not be converted pursuant to Article Twelve
hereof on or after the date of the delivery of such Repurchase Notice unless
such Repurchase Notice has first been validly withdrawn.


 


A Repurchase Notice may
be withdrawn by means of a written notice of withdrawal delivered to the
Corporate Trust Office of the Trustee (or other Paying Agent appointed by the
Company) in accordance with the Repurchase Notice at any time prior to the
close of business on the Repurchase Date, specifying:


 


(a)           the certificate
number, if any, of the Security in respect of which such notice of withdrawal
is being submitted, or the appropriate Depositary information if the Security
in respect of which such notice of withdrawal is being submitted is represented
by a Global Security,


 


(b)           the principal amount
of the Security with respect to which such notice of withdrawal is being
submitted, and


 


(c)           the principal
amount, if any, of such Security which remains subject to the original
Repurchase Notice and which has been or will be delivered for purchase by the
Company.


 


SECTION 1114.     Deposit
of Purchase Price.


 


Prior to 10:00 a.m., New
York City Time, on the Business Day following the Repurchase Date, the Company
shall deposit with the Trustee or other Paying Agent (or, if the Company or a
Subsidiary Guarantor is acting as the Paying Agent, it shall segregate and hold
in trust as provided in Section 1003) an amount of money (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate purchase price of all the Securities or portions thereof that are to
be purchased as of the Repurchase Date.


 


SECTION 1115.     Securities
Repurchased in Part.


 


Upon presentation of any
Security repurchased only in part, the Company shall execute and the Trustee
shall authenticate and make available for delivery to the holder thereof, at
the expense of the Company, a new Security or Securities, of any authorized
denomination, in aggregate principal amount equal to the unrepurchased portion
of the Securities presented.


 


SECTION 1116.     Repayment
to the Company.


 


The Trustee (or other
Paying Agent appointed by the Company) shall return to the Company any cash
that remain unclaimed, together with interest, if any, thereon, held by them
for the payment of the purchase price; provided that to the extent that
the aggregate amount of cash deposited by the Company pursuant to Section 1114
exceeds the aggregate purchase price of the Securities or portions thereof
which the Company is obligated to purchase as of the Repurchase Date then,
unless otherwise agreed in writing with the Company, promptly after the
Business Day following the Repurchase Date, the Trustee shall return any such
excess to the Company together with interest, if any, thereon.


 


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ARTICLE TWELVE


 


Conversion of Securities


 


SECTION 1201.     Right
to Convert.


 


(a)           Subject
to and upon compliance with the provisions of this Indenture, the holder of any
Security shall have the right, at such holder’s option, to convert the
principal amount of the Security, or any portion of such principal amount which
is a multiple of $1,000, into fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) at the Conversion Rate in
effect at such time, by surrender of the Security so to be converted in whole
or in part, together with any required funds, in the manner provided in Section
1202.  The Securities shall be
convertible only upon the occurrence of one of the following events:


 


(i)            during any calendar quarter
commencing after September 30, 2003, if the Closing Sale Price of shares of
Common Stock exceeds 120% of the Conversion Price for at least 20 Trading Days
in the 30 consecutive Trading Day period ending on the last Trading Day of the
immediately preceding calendar quarter (it being understood for purposes of
this Section 1201(a)(i) that the Conversion Price in effect at the close of
business on each of the 30 consecutive Trading Days should be used);


 


(ii)           during
any period in which (1) the long-term credit rating assigned to the Securities
by Standard & Poor’s or Moody’s is lower than “BB+” or “Ba2,” respectively,
(2) either Standard & Poor’s or Moody’s no longer rates the Securities or
has suspended or withdrawn the rating assigned to the Securities, or (3) the
Securities are not assigned a rating by both Standard & Poor’s and Moody’s;
provided, however, the Securities may not be convertible pursuant to
this Section 1201(a)(ii) until after the earlier of (a) the date the Securities are
rated by both Standard & Poor’s and Moody’s and (b) five Business Days from
the Issue Date;


 


(iii)          during the five Business Day period
immediately after any five consecutive Trading Day period in which the Trading
Price per $1,000 principal amount of the Securities for each day of such five
day measurement period was less than 98% of the product of the Closing Sale
Price of shares of Common Stock on the applicable date and the Conversion Rate;
provided, however, the Securities shall not be convertible pursuant to this
Section 1201(a)(iii) after June 30, 2028 if on any Trading Day during such five
day measurement period the Closing Sale Price of shares of Common Stock was
between 100% and 120% of the then current Conversion Price;


 


(iv)          if such Security has been called for
redemption, at any time on or after the date the notice of redemption has been
given until the close of business on the Business Day immediately preceding the
Redemption Date or, if earlier, the discharge of the Indenture under Section
401; or


 


(v)           as provided in Section 1201(b).


 


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The Trustee (or other
Conversion Agent appointed by the Company) shall, on behalf of the Company,
determine on a daily basis whether the Securities shall be convertible as a
result of the occurrence of an event specified in clause (i) above and, if the
Securities shall be convertible, the Trustee (or other Conversion Agent
appointed by the Company) shall promptly deliver to the Company and the Trustee
(if the Trustee is not the Conversion Agent) written notice thereof. Whenever
the Securities shall become convertible pursuant to this Section 1201, the
Company or, at the Company’s written request, the Trustee in the name and at
the expense of the Company, shall notify the holders of the event triggering
such convertibility in the manner provided in Section 106, and the Company
shall also publicly announce such information and publish it on the Company’s
web site.  Any notice so given shall be
conclusively presumed to have been duly given, whether or not the holder receives
such notice.


 


The Trustee (or other
Conversion Agent appointed by the Company) shall have no obligation to
determine the Trading Price under this Section 1201 unless the Company has
requested in writing such a determination; and the Company shall have no
obligation to make such request unless a holder provides it with reasonable
evidence that the Trading Price per $1,000 principal amount of Securities would
be less than 98% of the product of the Closing Sale Price of shares of Common
Stock and the Conversion Rate.  If such
evidence is provided, the Company shall instruct the Trustee (or other
Conversion Agent) in writing to determine the Trading Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of Securities is greater than or
equal to 98% of the product of the Closing Sale Price of shares of Common Stock
and the Conversion Rate.


 


(b)           In addition, if:


 


(i)            (A)          the Company distributes to all holders
of its Common Stock rights or warrants entitling them (for a period expiring
within 45 days of the record date for the determination of the stockholders
entitled to receive such distribution) to subscribe for or purchase shares of
Common Stock, at a price per share less than the average of the Closing Sale
Price of shares of Common Stock for the ten Trading Days immediately preceding,
but not including, the date such distribution is first publicly announced by
the Company, or (B) the Company distributes to all holders of its Common Stock,
assets, debt securities or rights to purchase its securities, where the fair
market value of such distribution per share of Common Stock exceeds 5% of the
Closing Sale Price of shares of Common Stock on the Trading Day immediately preceding
the date such distribution is first publicly announced by the Company, then, in
either case, the Securities may be surrendered for conversion at any time on
and after the date that the Company gives notice to the holders of such
distribution, which shall be not less than 20 days prior to the Ex-Dividend
Time for such distribution, until the earlier of the close of business on the
Business Day immediately preceding, but not including, the Ex-Dividend Time or
the date the Company publicly announces that such distribution will not take
place; provided that no adjustment to the Conversion Price or the
ability of a holder of a Security to convert will be made if the holder will
otherwise participate in such distribution without conversion; or


 


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(ii)           the Company
consolidates with or merges with or into another Person or is a party to a
binding share exchange or conveys, transfers, sells, leases or otherwise
disposes of all or substantially all of its properties and assets, then the
Securities may be surrendered for conversion at any time from and after the
date fifteen (15) days prior to the anticipated effective date of the
transaction and ending on and including the date fifteen (15) days after the
consummation of the transaction.  The
Board of Directors shall determine the anticipated effective date of the
transaction, and such determination shall be conclusive and binding on the
holders and shall be publicly announced by the Company and posted on its web
site not later than two Business Day prior to such 15th day.  If the Company is a party to a
consolidation, merger, binding share exchange or conveyance, transfer, sale,
lease or other disposal of all or substantially all of its assets, in each case
pursuant to which the Common Stock is converted into cash, securities, or other
property, then at the effective time of the transaction, a holder’s right to
convert a Security into the Common Stock will be changed into a right to
convert it into the kind and amount of cash, securities and other property
which such holder would have received if such holder had converted such
Securities immediately prior to the transaction.


 


“Ex-Dividend
Time” means, with respect to any
distribution on shares of Common Stock, the first date on which the Common
Stock trades, regular way, on the principal securities market on which the
Common Stock is then traded without the right to receive such distribution.


 


(c)           A Security in
respect of which a holder is electing to exercise its option to require
redemption upon a Designated Event pursuant to Section 1110(a) or repurchase
pursuant to Section 1111 may be converted only if such holder withdraws its
election in accordance with Section 1110(b) or Section 1113, respectively.  A holder of Securities is not entitled to
any rights of a holder of Common Stock until such holder has converted his
Securities to Common Stock, and only to the extent such Securities are deemed
to have been converted to Common Stock under this Article Twelve.


 


SECTION 1202.     Conversion
Procedures.


 


To convert a Security, a
holder must (a) complete and manually sign the Conversion Notice or a facsimile
of the Conversion Notice (a “Conversion Notice”) in the form set forth on the
reverse of the Security and deliver such notice to the Conversion Agent, (b)
surrender the Security to the Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by the Security Registrar or
the Conversion Agent, (d) pay any transfer or similar tax, if required and (e)
if required, pay funds equal to the interest payable on the next Interest
Payment Date. In the case of a Global Security, the Conversion Notice shall be
completed by a DTC participant on behalf of the beneficial holder. The date,
within the time periods set forth in Section 1201, on which the holder
satisfies all of those requirements is the “Conversion Date.”  The
Company shall deliver to the holder through the Conversion Agent, no later than
the third Business Day following the Conversion Date, a certificate for the
number of whole shares of Common Stock issuable upon the conversion and, if
applicable, cash in lieu of any fractional shares pursuant to Section 1203.


 


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Anything herein to the
contrary notwithstanding, in the case of Global Securities, Conversion Notices
may be delivered and such Securities may be surrendered for conversion in
accordance with the applicable procedures of the Depositary as in effect from
time to time. The Person in whose name the Common Stock certificate is
registered shall be deemed to be a stockholder of record at the close of
business on the applicable Conversion Date; provided, however, that if any such date is a date when the stock
transfer books of the Company are closed, such Person shall be deemed a
stockholder of record as of the next date on which the stock transfer books of
the Company are open.


 


No payment or adjustment
shall be made for dividends on, or other distributions with respect to, any
Common Stock except as provided in this Article. On conversion of a Security,
except for conversion during the period from the close of business on any
Regular Record Date immediately preceding any Interest Payment Date to the
close of business on the Business Day immediately preceding such Interest
Payment Date, in which case the holder on such Regular Record Date shall
receive the interest payable on such Interest Payment Date, that portion of
accrued and unpaid interest on the converted Security attributable to the period
from the most recent Interest Payment Date (or, if no Interest Payment Date has
occurred, from the Issue Date) through the Conversion Date shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the holder thereof through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares) in exchange for the
Security being converted pursuant to the provisions hereof, and the fair market
value of such shares of Common Stock (together with any such cash payment in
lieu of fractional shares) shall be treated as issued, to the extent thereof,
first in exchange for accrued and unpaid interest accrued through the
Conversion Date and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the principal amount of the Security being converted pursuant to the
provisions hereof.


 


If a holder converts more
than one Security at the same time, the number of shares of Common Stock
issuable upon the conversion shall be based on the aggregate principal amount
of Securities converted.


 


Upon surrender of a
Security that is converted in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the holder, a new Security equal in principal
amount to the principal amount of the unconverted portion of the Security
surrendered.


 


Securities or portions
thereof surrendered for conversion during the period from the close of business
on any Regular Record Date immediately preceding any Interest Payment Date to
the close of business on the Business Day immediately preceding such Interest
Payment Date shall be accompanied by payment to the Company or its order, in
New York Clearing House funds or other funds acceptable to the Company, of an
amount equal to the interest payable on such Interest Payment Date with respect
to the principal amount of Securities or portions thereof being surrendered for
conversion; provided that no such payment need be made if (1) the
Company has specified a Redemption Date that occurs during the period from the
close of business on a Regular Record Date to the close of business on the
Business Day immediately preceding the Interest Payment Date to which such
Regular Record Date relates, (2) the Company has specified a Designated Event
Redemption Date during such period or (3) only to


 


80

















 


the extent of overdue interest, any overdue interest exists on the
Conversion Date with respect to the Securities converted.


 


SECTION 1203.     Cash
Payment in lieu of Fractional Shares.


 


No fractional shares of
Common Stock or scrip certificates representing fractional shares shall be
issued upon conversion of Securities.  
If more than one Security shall be surrendered for conversion at one
time by the same holder, the number of full shares that shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered.   If any fractional
share of stock would be issuable upon the conversion of any Security or
Securities, the Company shall make an adjustment and payment therefor in cash
at the current market price thereof to the holder of Securities.  For purposes of this Section 1203, the “current market price” of a share of
Common Stock shall be the Closing Sale Price of shares of Common Stock on the
last Business Day immediately preceding the day on which the Securities (or
specified portions thereof) are deemed to have been converted.


 


SECTION 1204.     Conversion
Rate.


 


Each $1,000 principal
amount of the Securities shall be convertible into the number of shares of
Common Stock specified in the form of Security (herein called the “Conversion Rate”), subject to
adjustment as provided in this Article Twelve.


 


SECTION 1205.     Adjustment
of Conversion Rate.


 


The Conversion Rate shall
be adjusted from time to time by the Company as follows:


 


(a)           In case the Company shall hereafter
pay a dividend or make a distribution to all holders of the outstanding Common
Stock in shares of Common Stock, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect at the opening of business on the date following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution by a fraction,


 


(i)            the numerator of
which shall be the sum of the number of shares of Common Stock outstanding at
the close of business on the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution plus the total number
of shares of Common Stock constituting such dividend or other distribution; and


 


(ii)           the denominator of
which shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination,


 


such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination.  For
the purpose of this paragraph (a), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company.  The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.  If any
dividend or distribution of


 


81

















 


the type described in
this Section 1205 is declared but not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared.


 


(b)           In case the Company shall issue
rights or warrants to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within forty-five (45) days after the
date fixed for determination of stockholders entitled to receive such rights or
warrants) to subscribe for or purchase shares of Common Stock at a price per
share less than the Average Market Price on the date fixed for determination of
stockholders entitled to receive such rights or warrants, the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the date fixed
for determination of stockholders entitled to receive such rights or warrants
by a fraction,


 


(i)            the numerator of which shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for determination of stockholders entitled to receive such rights or
warrants plus the total number of additional shares of Common Stock so offered
for subscription or purchase, and


 


(ii)           the denominator of which shall be the
sum of the number of shares of Common Stock outstanding at the close of
business on the date fixed for determination of stockholders entitled to
receive such rights or warrants plus the number of shares that the aggregate
offering price of the total number of shares so offered would purchase at such
Average Market Price.


 


Such adjustment shall be
successively made whenever any such rights or warrants are issued, and shall
become effective immediately after the opening of business on the day following
the date fixed for determination of stockholders entitled to receive such rights
or warrants.  To the extent that shares
of Common Stock are not delivered after the expiration of such rights or
warrants, the Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. 
If such rights or warrants are not so issued, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such date fixed for the determination of stockholders entitled to receive such
rights or warrants had not been fixed. 
In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such Average
Market Price, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by
the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.


 


(c)           In case outstanding shares of Common
Stock shall be subdivided into a greater number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
increased, and conversely, in case outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the day upon which
such combination becomes


 


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effective shall be proportionately reduced, such increase or reduction,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.


 


(d)           In case the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock shares of
any class of capital stock of the Company or evidences of its indebtedness or
assets (including cash and securities, but excluding any rights or warrants
referred to in Section 1205(b), and excluding any dividend or distribution
referred to in Section 1205(a)) (any of the foregoing hereinafter in this
Section 1205(d) called the “Distribution”), then, in each such case (unless the
Company elects to reserve such Distribution for distribution to the holders
upon the conversion of the Securities so that any such holder converting
Securities will receive upon such conversion, in addition to the shares of
Common Stock to which such holder is entitled, the amount and kind of such
Distribution which such holder would have received if such holder had converted
its Securities into Common Stock immediately prior to the Record Date), the
Conversion Rate shall be increased so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect at the close of
business on the Record Date with respect to such distribution by a fraction,


 


(i)            the numerator of which shall be the
Average Market Price on such Record Date; and


 


(ii)           the denominator of which shall be the
Average Market Price on such Record Date less (A) in the case of Distributions
other than cash, the Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion of such
Distributions applicable to one share of Common Stock and (B) in the case of
Distributions of cash, the amount of such Distributions applicable to one share
of Common Stock,


 


such adjustment to become
effective immediately prior to the opening of business on the day following
such Record Date; provided that if the then Fair Market Value (as so
determined) of the portion of the Distribution so distributed applicable to one
share of Common Stock is equal to or greater than the Average Market Price on
the Record Date, in lieu of the foregoing adjustment, adequate provision shall
be made so that each holder shall have the right to receive upon conversion the
amount of Distribution such holder would have received had such holder
converted each Security on the Record Date. 
A holder who converts a Security pursuant to Section 1201(b) shall not
be entitled to any adjustment to the Conversion Rate with respect to such
Security so converted.  If such dividend
or distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.  If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 1205 by reference to the actual or
when issued trading market for any securities, it must in doing so consider the
prices in such market over the same period used in computing the Average Market
Price on the applicable Record Date. 
Notwithstanding the foregoing, if the Distribution distributed by the
Company to all holders of its Common Stock consists of capital stock of, or
similar equity interests in, a Subsidiary or other business unit, the
Conversion Rate shall be increased so that the same shall


 


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be equal to the rate
determined by multiplying the Conversion Rate in effect on the Record Date with
respect to such distribution by a fraction:


 


(i)            the numerator of
which shall be the sum of (x) the average Closing Sale Price of one share of
Common Stock over the ten consecutive Trading Day period (the “Spinoff Valuation Period”)
commencing on and including the fifth Trading Day after the date on which
“ex-dividend trading” commences on the Common Stock on the New York Stock
Exchange or such other national or regional exchange or market on which the
Common Stock is then listed or quoted and (y) the average Closing Sale Price
over the Spinoff Valuation Period of the portion of the Distribution so distributed
applicable to one share of Common Stock; and


 


(ii)           the denominator of which shall be the
average Closing Sale Price of one share of Common Stock over the Spinoff
Valuation Period,


 


such adjustment to become
effective immediately prior to the opening of business on the day following
such Record Date;  provided
that the Company may in lieu of the foregoing adjustment make adequate
provision so that each holder shall have the right to receive upon conversion
the amount of Distribution such holder would have received had such holder
converted each note on the Record Date with respect to such distribution.


 


Rights or warrants
distributed by the Company to all holders of Common Stock entitling the holders
thereof to subscribe for or purchase shares of the Company’s capital stock
(either initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events (“Trigger Event”): (i) are
deemed to be transferred with such shares of Common Stock; (ii) are not exercisable;
and (iii) are also issued in respect of future issuances of Common Stock, shall
be deemed not to have been distributed for purposes of this Section 1205 (and
no adjustment to the Conversion Rate under this Section 1205 will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights and
warrants shall be deemed to have been distributed and an appropriate adjustment
(if any is required) to the Conversion Rate shall be made under this Section
1205.  If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof).  In addition, in the
event of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this
Section 1205 was made, (1) in the case of any such rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with
respect to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase,


 


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and (2) in the case of
such rights or warrants that shall have expired or been terminated without
exercise by any holders thereof, the Conversion Rate shall be readjusted as if
such rights and warrants had not been issued.


 


No adjustment of the
Conversion Rate shall be made pursuant to this Section 1205 in respect of
rights or warrants distributed or deemed distributed on any Trigger Event to
the extent that such rights or warrants are actually distributed, or reserved
by the Company for distribution, to holders of Securities upon conversion by
such holders of Securities to Common Stock.


 


For purposes of this
Section 1205(d)  and 1205(a) and (b),
any dividend or distribution to which this Section 1205(d) is applicable that
also includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate adjustment required by this Section 1205(d) with respect to
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate adjustment required by Sections
1205(a) and (b) with respect to such dividend or distribution shall then be
made), except


 


(A)          the Record Date of such dividend or
distribution shall be substituted as “the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution”, “the
date fixed for the determination of stockholders entitled to receive such
rights or warrants” and “the date fixed for such determination” within the
meaning of Section 1205(a) and (b) and


 


(B)           any shares of Common Stock included
in such dividend or distribution shall not be deemed “outstanding at the close
of business on the date fixed for such determination” within the meaning of
Section 1205(a).


 


(e)           In case a tender or exchange offer
made by the Company or any Subsidiary for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of consideration
per share of Common Stock having a Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) that as of the last time (the “Expiration
Time”) tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended) exceeds the Closing Sale Price of a share of
Common Stock on the Trading Day next succeeding the Expiration Time, the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
the Expiration Time by a fraction,


 


(i)            the numerator of which shall be the
sum of (x) the Fair Market Value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being referred to
as the


 


85

















 


“Purchased Shares”) and
(y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the Closing Sale Price of a
share of Common Stock on the Trading Day next succeeding the Expiration Time,
and


 


(ii)           the denominator of which shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the Closing Sale Price
of a share of Common Stock on the Trading Day next succeeding the Expiration
Time


 


such adjustment to become
effective immediately prior to the opening of business on the day following the
Expiration Time.  If the Company is
obligated to purchase shares pursuant to any such tender or exchange offer, but
the Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.


 


(f)            For purposes of this Section 1205,
the following terms shall have the meaning indicated:


 


(1)           “Average Market Price” shall mean the
average of the daily Closing Sale Prices per share of Common Stock for the ten
consecutive Trading Days immediately preceding the earlier of such date of
determination and the day before the “ex” date with respect to the issuance,
distribution, subdivision or combination requiring such computation immediately
prior to the date in question.  For
purpose of this paragraph, the term “ex” date, (1) when used with respect to
any issuance or distribution, means the first date on which the Common Stock
trades, regular way, on the relevant exchange or in the relevant market from
which the Closing Sale Price of shares of Common Stock was obtained without the
right to receive such issuance or distribution, and (2) when used with respect
to any subdivision or combination of shares of Common Stock, means the first
date on which the Common Stock trades, regular way, on such exchange or in such
market after the time at which such subdivision or combination becomes effective.


 


If
another issuance, distribution, subdivision or combination to which Section
1205 applies occurs during the period applicable for calculating “Average
Market Price” pursuant to the definition in the preceding paragraph, “Average
Market Price” shall be calculated for such period in a manner determined by the
Board of Directors to reflect the impact of such issuance, distribution,
subdivision or combination on the Closing Sale Price of shares of Common Stock
during such period.


 


(2)           “Fair Market Value” shall mean the
amount which a willing buyer would pay a willing seller in an arm’s-length
transaction.


 


(3)           “Record Date” shall mean, with
respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or converted into any
combination of cash,


 


86

















 


securities or other
property, the date fixed for determination of stockholders entitled to receive
such cash, securities or other property (whether such date is fixed by the
Board of Directors or by statute, contract or otherwise).


 


(g)           The Company may make such increases
in the Conversion Rate, in addition to those required by Section 1205(a), (b),
(c), (d) or (e), as the Board of Directors considers to be advisable to avoid
or diminish any income tax to any holders of Common Stock or rights to purchase
Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.


 


To the extent permitted
by applicable law, the Company from time to time may increase the Conversion
Rate by any amount for any period of time if the period is at least twenty (20)
days, the increase is irrevocable during the period and the Board of Directors
shall have made a determination that such increase would be in the best
interests of the Company, which determination shall be conclusive.  Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to holders of record
of the Securities a notice of the increase at least fifteen (15) days prior to
the date the increased Conversion Rate takes effect, and such notice shall
state the increased Conversion Rate and the period during which it will be in
effect.


 


(h)           No adjustment in the Conversion Rate
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in such rate; provided that any adjustments
that by reason of this Article Twelve are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.  All calculations under this Article Twelve
shall be made by the Company and shall be made to the nearest cent or to the
nearest one-ten thousandth (1/10,000) of a share, as the case may be.  No adjustment need be made for rights to
purchase Common Stock pursuant to a Company plan for reinvestment of dividends or
interest.  To the extent the Securities
become convertible into cash, assets, property or securities (other than
capital stock of the Company), no adjustment need be made thereafter as to the
cash, assets, property or such securities. 
Interest will not accrue on any cash into which the Securities are
convertible.


 


(i)            Whenever the Conversion Rate is
adjusted as herein provided, the Company shall promptly file with the Trustee
and any Conversion Agent other than the Trustee an Officers’ Certificate setting
forth the Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.  Unless and until a responsible officer of the Trustee shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that the last
Conversion Rate of which it has knowledge is still in effect.  Promptly after delivery of such certificate,
the Company shall prepare a notice of such adjustment of the Conversion Rate
setting forth the adjusted Conversion Rate and the date on which each
adjustment becomes effective and shall mail such notice of such adjustment of
the Conversion Rate to the holder of each Security at his last address
appearing on the Security Register provided for in Section 306 of this
Indenture, within twenty (20) days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


87

















 


(j)            In any case in which this Section
1205 provides that an adjustment shall become effective immediately after (1)
the Record Date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to Section
1205(a), (3) a date fixed for the determination of stockholders entitled to
receive rights or warrants pursuant to Section 1205(b), or (4) the Expiration
Time for any tender or exchange offer pursuant to Section 1205(e), (each a “Determination
Date”), the Company may elect to defer until the occurrence of the applicable
Adjustment Event (as hereinafter defined) (x) issuing to the holder of any
Security converted after such Determination Date and before the occurrence of
such Adjustment Event, the additional shares of Common Stock or other
securities issuable upon such conversion by reason of the adjustment required
by such Adjustment Event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (y) paying to such
holder any amount in cash in lieu of any fraction pursuant to Section 203.  For purposes of this Section 1205(j), the
term “Adjustment Event” shall mean:


 


(i)            in any case referred to in clause
(1) hereof, the occurrence of such event,


 


(ii)           in any case referred to in clause (2)
hereof, the date any such dividend or distribution is paid or made,


 


(ii)           in any case referred to in clause (3)
hereof, the date of expiration of such rights or warrants, and


 


(iv)          in any case referred to in clause (4)
hereof, the date a sale or exchange of Common Stock pursuant to such tender or
exchange offer is consummated and becomes irrevocable.


 


(k)           For purposes of this Section 1205, the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.  The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


SECTION 1206. 
   Effect of Reclassification,
Consolidation, Merger or Sale.


 


If any of the following
events occur, namely (i) any reclassification or change of the outstanding
shares of Common Stock (other than a subdivision or combination to which
Section 1205(c) applies), (ii) any consolidation, merger or combination of the
Company with another Person as a result of which holders of Common Stock shall
be entitled to receive stock, other securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, or (iii)
any sale or conveyance of all or substantially all of the properties and assets
of the Company to any other Person as a result of which holders of Common Stock
shall be entitled to receive stock, other securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing Person, as the case may be,
shall execute with the Trustee a supplemental indenture providing that each
Security shall be convertible into the kind and amount of shares of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of


 


88

















 


shares of Common Stock
issuable upon conversion of such Securities (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock are available to convert
all such Securities) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming such holder of
Common Stock did not exercise his rights of election, if any, as to the kind or
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance (provided that, if the kind or amount of
stock, other securities or other property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised (“nonelecting share”), then for the purposes of this Section 1206
the kind and amount of stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance for each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares).  Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article Twelve.


 


The Company shall cause
notice of the execution of such supplemental indenture to be mailed to each
holder of Securities, at its address appearing on the Security Register provided
for in Section 306 of this Indenture, within twenty (20) days after execution
thereof.  Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.


 


The above provisions of
this Section shall similarly apply to successive reclassifications, changes,
consolidations, mergers, combinations, sales and conveyances.


 


If this Section 1206
applies to any event or occurrence, Section 1205 shall not apply.


 


SECTION 1207. 
   Taxes on Shares Issued.


 


The issue of stock certificates
on conversions of Securities shall be made without charge to the converting
holder for any documentary, stamp or similar issue or transfer tax in respect
of the issue thereof.  The Company shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Security converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
Person or Persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.


 


SECTION 1208.                                 Reservation
of Shares, Shares to be Fully Paid; 
Compliance with Governmental Requirements;  Listing of Common Stock.


 


The Company shall
provide, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares of Common Stock to provide for
the conversion of the Securities from time to time as such Securities are
presented for conversion.


 


89

















 


Before taking any action
which would cause an adjustment increasing the Conversion Rate to an amount
that would cause the Conversion Price to be reduced below the then par value,
if any, of the shares of Common Stock issuable upon conversion of the
Securities, the Company will take all corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue shares of such Common Stock at such adjusted Conversion Rate.


 


The Company covenants
that all shares of Common Stock which may be issued upon conversion of
Securities will upon issue be fully paid and non-assessable and free from all
taxes, liens and charges with respect to the issue thereof.


 


The Company covenants
that, if any shares of Common Stock to be provided for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued upon conversion, the Company will in good faith and as
expeditiously as possible, to the extent then permitted by the rules and
interpretations of the Commission (or any successor thereto), endeavor to
secure such registration or approval, as the case may be.


 


The Company further
covenants that, if at any time the Common Stock shall be listed on the New York
Stock Exchange or any other national securities exchange or automated quotation
system, the Company will, if permitted by the rules of such exchange or
automated quotation system, list and keep listed, so long as the Common Stock
shall be so listed on such exchange or automated quotation system, all Common
Stock issuable upon conversion of the Security; provided that if the
rules of such exchange or automated quotation system permit the Company to
defer the listing of such Common Stock until the first conversion of the
Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
exchange or automated quotation system at such time.


 


SECTION 1209. 
   Responsibility of Trustee.


 


The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any holder of Securities to determine the Conversion Rate or whether any facts
exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or
with respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. 
The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and the Trustee and any other
Conversion Agent make no representations with respect thereto.  Neither the Trustee nor any Conversion Agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article Twelve.  Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 1206


 


90

















 


relating either to the
kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Securities after any event
referred to in such Section 1206 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 601, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers’ Certificate (which the Company shall
be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.


 


SECTION 1210. 
   Notice to Holders Prior to
Certain Actions.


 


In case:


 


(a)           the Company shall
declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Conversion Rate pursuant to Section 1205; or


 


(b)           the Company shall
authorize the granting to the holders of all or substantially all of its Common
Stock of rights or warrants to subscribe for or purchase any share of any class
or any other rights or warrants; or


 


(c)           of any
reclassification or reorganization of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company; or


 


(d)           of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;


 


the Company shall cause
to be filed with the Trustee and to be mailed to each holder of Securities at
his address appearing on the Security Register provided for in Section 106 of
this Indenture, as promptly as possible but in any event at least ten (10) days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective or occur, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. 
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.


 


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SECTION 1211. 
   Rights Issued in Respect of
Common Stock Issued Upon Conversion.


 


Each share of Common
Stock issued upon conversion of Securities pursuant to this Article Twelve
shall be entitled to receive the appropriate number of common stock or
preferred stock purchase rights, as the case may be (the “Rights”), if any, that shares of
Common Stock are entitled to receive and the certificates representing the
Common Stock issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any shareholder rights agreement
adopted by the Company, as the same may be amended from time to time (in each
case, a “Rights Agreement”).
Provided that such Rights Agreement, if any, requires that each share of Common
Stock issued upon conversion of Securities at any time prior to the distribution
of separate certificates representing the Rights be entitled to receive such
Rights, if any, then, notwithstanding anything else to the contrary in this
Article Twelve there shall not be any adjustment to the conversion privilege or
Conversion Rate as a result of the issuance of Rights, if any, but an
adjustment to the Conversion Rate shall be made pursuant to Section 1205(d) (to
the extent required thereby) upon the separation of the Rights, if any, from
the Common Stock.


 


ARTICLE THIRTEEN


 


Subsidiary Guarantee


 


SECTION 1301. 
   [Reserved].


 


SECTION 1302. 
   Subsidiary Guarantors.


 


If any Subsidiary of the
Company shall become a subsidiary guarantor under, and as such term is defined
in, the Credit Agreements, the Company shall cause such Subsidiary concurrently
to become a Subsidiary Guarantor by executing and delivering to the Trustee (a)
a Subsidiary Guarantee substantially in the form established pursuant to Annex
A hereof and (b) an Opinion of Counsel to the effect that such Subsidiary
Guarantee has been duly authorized and executed by such Person and constitutes
the valid, binding and enforceable obligation of such Person (subject to
customary exceptions concerning creditors’ rights and equitable
principles).  Notwithstanding the
preceding sentence, in no event shall a Foreign Subsidiary become a Subsidiary
Guarantor.


 


A Subsidiary Guarantee
shall be executed by manual signature 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 or Chief Financial Officer or Vice Presidents, attested by its
Secretary or Assistant Secretary.


 


A Subsidiary Guarantee
bearing the manual signatures 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 execution and delivery of the Subsidiary Guarantee or did
not hold such offices at the date of such Subsidiary Guarantee.


 


SECTION 1303. 
   Subsidiary Guarantors May
Consolidate,  Etc., on Certain Terms.


 


Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of any Subsidiary Guarantor with or into the Company or any other


 


92

















 


Subsidiary Guarantor or
shall prevent any sale or conveyance of the property of any Subsidiary
Guarantor as an entirety or substantially as an entirety to the Company or any
other Subsidiary Guarantor.


 


SECTION 1304. 
   Release of Subsidiary
Guarantors.


 


If a Subsidiary Guarantor
is no longer a subsidiary guarantor under, and as such term is defined in, the
Credit Agreements, and if the Company shall deliver to the Trustee an Officers’
Certificate certifying to that effect as of the date of such Officers’
Certificate, then automatically, without the requirement of any further action
by the Company, such Subsidiary or the Trustee, such Subsidiary shall cease to
be a Subsidiary Guarantor hereunder and shall have no further obligation or
liability under its Subsidiary Guarantee. 
The Trustee shall, at the Company’s expense, execute and deliver such
instruments as the Company may reasonably request to evidence such termination.


 












 


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.


 


93

















 


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


 


	
   

  	
  SEALED
  AIR CORPORATION

  
	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Kelsey

  	
   

  
	
   

  	
   

  	
  Name:  David H. Kelsey

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial Officer

  
	
   

  
	
   

  	
  SUNTRUST
  BANK, as Trustee

  
	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/
  Jack Ellerin

  	
   

  
	
   

  	
   

  	
  Name:  Jack Ellerin

  
	
   

  	
   

  	
  Title:  Assistant Vice President

  



 


94

















 


ANNEX A — Form of Subsidiary

Guarantee


 


Form of Subsidiary
Guarantee


 


SUBSIDIARY
GUARANTEE


 


For value received, the
Subsidiary Guarantor named below, as of the date hereof, hereby unconditionally
guarantees to the Holders of the 3% Convertible Senior Notes due 2033 (the
“Securities”), issued pursuant to an Indenture dated as of July 1, 2003 between
Sealed Air Corporation (the “Company”) and SunTrust Bank, as Trustee (the
“Indenture”), for the benefit of whom this Subsidiary Guarantee is executed and
delivered, and to the Trustee on behalf of such Holders, the due and punctual
payment of the principal of (and premium, if any) and interest on such
Securities when and as the same shall become due and payable, whether at the
Stated Maturity, by acceleration, on redemption or repurchase, or otherwise,
according to the terms thereof and of the Indenture referred to therein.  In case of the failure of the Company
punctually to make any such payment, the Subsidiary Guarantor hereby 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, on redemption
or repurchase, or otherwise, and as if such payment were made by the Company.


 


The Subsidiary Guarantor
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of such Security or
the Indenture, the absence of any action to enforce the same, any creation,
exchange, release or non-perfection of any Lien on any collateral for, or any
release or amendment or waiver of any term of any other guarantee of, or any
consent to departure from any requirement of any other guarantee of, all or of
any of the Securities, the election by the Trustee or any of the Holders in any
proceeding under Chapter 11 of the Bankruptcy Code of the application of
Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security
interest by the Company, as debtor-in-possession, under Section 364 of the
Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Securities, any waiver or consent by the Holder of such
Security or by the Trustee or either of them with respect to any provisions
thereof or of the Indenture, the obtaining of any judgment against the Company
or any action to enforce the same or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.  The Subsidiary Guarantor 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, while it remains a Subsidiary Guarantor, except by complete
performance of the obligations contained in such Security and in this
Subsidiary Guarantee.  The Subsidiary
Guarantor hereby agrees that, in the event of a default in payment of


 


A-1

















 


principal (or premium, if
any) or interest on such Security, whether at their Stated Maturity, by
acceleration, on redemption or repurchase, or otherwise, legal proceedings may
be instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in the Indenture, directly
against the Subsidiary Guarantor to enforce this Subsidiary Guarantee without
first proceeding against the Company. 
The 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, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, the 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.


 


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 the Subsidiary Guarantor,
which is absolute and unconditional, of the due and punctual payment of the
principal (and premium, if any) and interest on the Securities.


 


The Subsidiary Guarantor
shall be subrogated to all rights of the Holders of the Securities against the
Company in respect of any amounts paid by the Subsidiary Guarantor on account
of the Securities pursuant to the provisions of this Subsidiary Guarantee; provided,
however, that the 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 all of
the Securities 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
significant part of the Company’s assets.


 


The obligations of the
Subsidiary Guarantor hereunder are limited to the maximum amount that would
cause the obligations of the Subsidiary Guarantor under this Subsidiary
Guarantee not to constitute a fraudulent conveyance or fraudulent transfer
under Federal or State law, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor (including, without limitation,
any guarantees under the Credit Agreements) and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations set
forth in the following paragraph.  To
the fullest extent permitted by law, this Subsidiary Guarantee shall continue
to be effective or be reinstated, as the case may be, if at any time payment
and performance of the Securities is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored


 


A-2

















 


or returned by any
obligee on 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.


 


To the extent that any Subsidiary
Guarantor shall be required to pay any amounts on account of the Securities
pursuant to its Subsidiary Guarantee in excess of the greater of (i) the amount
of the economic benefit actually received by such Subsidiary Guarantor from the
issuance of the Securities and (ii) an amount calculated as the product of (A)
the aggregate amount payable by the Subsidiary Guarantors on account of the
Securities pursuant to the Subsidiary Guarantees times (B) the proportion
(expressed as a fraction) that such Subsidiary Guarantor’s net worth at the
date enforcement of the Subsidiary Guarantees is sought bears to the aggregate
net worth of all Subsidiary Guarantors at such date, then such Subsidiary
Guarantor shall be reimbursed by the other Subsidiary Guarantors for the amount
of such excess, pro rata, based upon the respective net worth of such other
Subsidiary Guarantors at the date enforcement of the Subsidiary Guarantees is
sought.  This paragraph is intended only
to define the relative rights of Subsidiary Guarantors as among themselves, and
nothing set forth in this paragraph is intended to or shall impair the joint
and several obligations of Subsidiary Guarantors under their respective
Subsidiary Guarantees.


 


The Subsidiary Guarantor
shall have the right to seek contribution from any non-paying Subsidiary
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Subsidiary Guarantee.


 


Notwithstanding any other
provision of this Subsidiary Guarantee or the Indenture, the Subsidiary
Guarantor shall be released from this Subsidiary Guarantee if and when it
ceases to be a subsidiary guarantor under, and as such term is defined in, the
Credit Agreements, as provided in the Indenture.


 


No stockholder, officer,
director, employer or incorporator, past, present or future, of the Subsidiary
Guarantor, as such, shall have any personal liability under any Subsidiary
Guarantee by reason of his, her or its status as such stockholder, officer,
director, employer or incorporator.


 


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


 


This Subsidiary Guarantee
shall not be valid or obligatory for any purpose until delivered to the
Trustee.


 


THIS
SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.


 


A-3

















 


IN WITNESS WHEREOF, the
Subsidiary Guarantor has caused this Subsidiary Guarantee to be duly executed.


 


	
   

  	
  [                 ]

  	
   

  
	
   

  	
  As Subsidiary Guarantor

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
   

  	
   

  
	
   

  	
   

  	
  [Officer]

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


A-4