Exhibit 4.10


 




 





FLEETWOOD
ENTERPRISES, INC.


 


14% Senior
Secured Securities due 2011


 


INDENTURE


 


Dated
as of
[                ]


 


[                          ]


 


Trustee




 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  Definitions and Incorporation by Reference

  	
  1

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  20

  
	
  Section 1.03.

  	
  Incorporation by
  Reference of TIA

  	
  20

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
  21

  
	
   

  	
   

  
	
  ARTICLE II The
  Securities

  	
  22

  
	
   

  	
   

  
	
  Section 2.01.

  	
  Form, Dating and Denominations

  	
  22

  
	
  Section 2.02.

  	
  Execution and Authentication; Additional
  Securities

  	
  22

  
	
  Section 2.03.

  	
  Registrar and Paying Agent

  	
  24

  
	
  Section 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
  25

  
	
  Section 2.05.

  	
  Holder Lists

  	
  25

  
	
  Section 2.06.

  	
  Replacement Securities

  	
  25

  
	
  Section 2.07.

  	
  Outstanding Securities

  	
  26

  
	
  Section 2.08.

  	
  Temporary Securities

  	
  26

  
	
  Section 2.09.

  	
  Cancellation

  	
  26

  
	
  Section 2.10.

  	
  CUSIP Numbers

  	
  27

  
	
  Section 2.11. 

  	
  Registration, Transfer and Exchange

  	
  27

  
	
  Section 2.12. 

  	
  Defaulted Interest

  	
  29

  
	
  Section 2.13. 

  	
  Issuance of Additional Securities

  	
  30

  
	
   

  	
   

  
	
  ARTICLE III
  Redemption

  	
  30

  
	
   

  	
   

  
	
  Section 3.01. 

  	
  Notices to Trustee

  	
  30

  
	
  Section 3.02. 

  	
  Selection

  	
  30

  
	
  Section 3.03. 

  	
  Notice

  	
  31

  
	
  Section 3.04. 

  	
  Effect of Notice of Redemption

  	
  31

  
	
  Section 3.05. 

  	
  Deposit of Redemption Price

  	
  32

  
	
  Section 3.06. 

  	
  Securities Redeemed in Part

  	
  32

  
	
  Section 3.07. 

  	
  Optional Redemption

  	
  32

  
	
  Section 3.08. 

  	
  No Sinking Fund

  	
  32

  
	
  Section 3.09. 

  	
  Repurchase Offers

  	
  32

  
	
   

  	
   

  
	
  ARTICLE IV
  Covenants

  	
  35

  
	
   

  	
   

  
	
  Section 4.01. 

  	
  Payment of Securities

  	
  35

  
	
  Section 4.02. 

  	
  SEC and Other Reports

  	
  35

  
	
  Section 4.03. 

  	
  Incurrence of Debt and Issuance of Preferred Stock

  	
  36

  
	
  Section 4.04. 

  	
  Restricted Payments

  	
  40

  
	
  Section 4.05. 

  	
  Limitations on Dividends and Other Payment Restrictions Affecting
  Subsidiaries

  	
  41

  
	
  Section 4.06. 

  	
  Asset Sales

  	
  42

  



 


i

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 4.07. 

  	
  Event of Loss

  	
  44

  
	
  Section 4.08. 

  	
  Transactions with Affiliates

  	
  46

  
	
  Section 4.09. 

  	
  Change of Control

  	
  47

  
	
  Section 4.10. 

  	
  Compliance Certificates; Recordings and Opinions

  	
  48

  
	
  Section 4.11. 

  	
  Liens

  	
  48

  
	
  Section 4.12. 

  	
  Additional Security Guarantees

  	
  48

  
	
  Section 4.13. 

  	
  Permitted Businesses

  	
  49

  
	
  Section 4.14. 

  	
  Payments for Consent

  	
  49

  
	
  Section 4.15. 

  	
  Payment of Taxes

  	
  49

  
	
  Section 4.16. 

  	
  Limitation on Sale and Leaseback Transactions

  	
  49

  
	
  Section 4.17. 

  	
  Legal Existence and Good Standing

  	
  50

  
	
  Section 4.18. 

  	
  Compliance with Laws

  	
  50

  
	
  Section 4.19. 

  	
  Amendments to Existing Credit Facilities

  	
  50

  
	
   

  	
   

  
	
  ARTICLE V MERGERS, CONSOLIDATION ETC.

  	
  50

  
	
   

  	
   

  
	
  Section 5.01. 

  	
  Merger, Consolidation, or Sale of All or Substantially All Assets

  	
  50

  
	
  Section 5.02. 

  	
  Merger or Consolidation of a Guarantor

  	
  51

  
	
   

  	
   

  
	
  ARTICLE VI
  Defaults and Remedies

  	
  52

  
	
   

  	
   

  
	
  Section 6.01. 

  	
  Events of Default and Remedies

  	
  52

  
	
  Section 6.02. 

  	
  Acceleration

  	
  54

  
	
  Section 6.03. 

  	
  Other Remedies

  	
  55

  
	
  Section 6.04. 

  	
  Waiver of Past Defaults

  	
  55

  
	
  Section 6.05. 

  	
  Control by Majority

  	
  55

  
	
  Section 6.06. 

  	
  Limitation on Suits

  	
  56

  
	
  Section 6.07. 

  	
  Rights of Holders to Receive Payment

  	
  56

  
	
  Section 6.08. 

  	
  Collection Suit by Trustee

  	
  56

  
	
  Section 6.09. 

  	
  Trustee May File Proofs of Claim

  	
  56

  
	
  Section 6.10. 

  	
  Priorities

  	
  57

  
	
  Section 6.11. 

  	
  Undertaking for Costs

  	
  57

  
	
  Section 6.12. 

  	
  Waiver of Usury Stay or Extension Laws

  	
  57

  
	
   

  	
   

  
	
  ARTICLE VII
  Trustee

  	
  58

  
	
   

  	
   

  
	
  Section 7.01. 

  	
  Duties of Trustee

  	
  58

  
	
  Section 7.02. 

  	
  Rights of Trustee

  	
  59

  
	
  Section 7.03. 

  	
  Individual Rights of Trustee

  	
  60

  
	
  Section 7.04. 

  	
  Trustee’s Disclaimer

  	
  60

  
	
  Section 7.05. 

  	
  Notice of Defaults

  	
  61

  
	
  Section 7.06. 

  	
  Reports by Trustee to Holders

  	
  61

  
	
  Section 7.07. 

  	
  Compensation and Indemnity

  	
  61

  
	
  Section 7.08. 

  	
  Replacement of Trustee

  	
  62

  
	
  Section 7.09. 

  	
  Successor Trustee by Merger, Etc.

  	
  63

  
	
  Section 7.10. 

  	
  Eligibility; Disqualification

  	
  63

  



 


ii

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 7.11. 

  	
  Preferential Collection of Claims Against Issuer

  	
  63

  
	
   

  	
   

  
	
  ARTICLE VIII
  Discharge of Indenture; Defeasance

  	
  64

  
	
   

  	
   

  
	
  Section 8.01. 

  	
  Legal Defeasance and Covenant Defeasance

  	
  64

  
	
  Section 8.02. 

  	
  Conditions to Legal or Covenant Defeasance

  	
  65

  
	
  Section 8.03. 

  	
  Satisfaction and Discharge of Indenture

  	
  66

  
	
  Section 8.04. 

  	
  Deposited Money and Government Notes to be Held in Trust; Other
  Miscellaneous Provisions

  	
  67

  
	
  Section 8.05. 

  	
  Repayment to Issuer

  	
  67

  
	
  Section 8.06. 

  	
  Reinstatement

  	
  68

  
	
   

  	
   

  
	
  ARTICLE IX
  Amendments

  	
  68

  
	
   

  	
   

  
	
  Section 9.01. 

  	
  Without Consent of Holders

  	
  68

  
	
  Section 9.02. 

  	
  With Consent of Holders

  	
  69

  
	
  Section 9.03. 

  	
  Compliance with TIA

  	
  70

  
	
  Section 9.04. 

  	
  Revocation and Effect of Consents and Waivers

  	
  70

  
	
  Section 9.05. 

  	
  Notation on or Exchange of Securities

  	
  70

  
	
  Section 9.06. 

  	
  Trustee to Sign Amendments

  	
  70

  
	
   

  	
   

  
	
  ARTICLE X
  Collateral and Security

  	
  71

  
	
   

  	
   

  
	
  Section 10.01.

  	
  Collateral Documents

  	
  71

  
	
  Section 10.02.

  	
  Collateral Agent

  	
  71

  
	
  Section 10.03.

  	
  Authorization of Actions to be Taken

  	
  72

  
	
  Section 10.04.

  	
  Maintenance of Collateral

  	
  73

  
	
  Section 10.05.

  	
  Further Assurances

  	
  74

  
	
  Section 10.06.

  	
  Real Estate Mortgages and Filings

  	
  74

  
	
  Section 10.07.

  	
  Impairment of Security Interest

  	
  75

  
	
  Section 10.08.

  	
  After-Acquired Property

  	
  75

  
	
  Section 10.09.

  	
  Substitution of Collateral

  	
  75

  
	
  Section 10.10.

  	
  Release of Liens

  	
  77

  
	
   

  	
   

  
	
  ARTICLE XI
  Security Guarantees

  	
  80

  
	
   

  	
   

  
	
  Section 11.01.

  	
  Security Guarantees

  	
  80

  
	
  Section 11.02.

  	
  Limitation on Liability; Release

  	
  81

  
	
  Section 11.03.

  	
  Successors and Assigns

  	
  82

  
	
  Section 11.04.

  	
  No Waiver

  	
  82

  
	
  Section 11.05.

  	
  Modification

  	
  82

  
	
   

  	
   

  
	
  ARTICLE XII
  Subordination of the Security Guarantees

  	
  82

  
	
   

  	
   

  
	
  Section 12.01.

  	
  Agreement to Subordinate

  	
  82

  
	
  Section 12.02.

  	
  Liquidation, Dissolution, Bankruptcy

  	
  83

  
	
  Section 12.03.

  	
  Default on Designated Senior Debt of a Guarantor

  	
  83

  



 


iii

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 12.04.

  	
  Demand for Payment

  	
  84

  
	
  Section 12.05.

  	
  When Distribution Must Be Paid Over

  	
  84

  
	
  Section 12.06.

  	
  Subrogation

  	
  85

  
	
  Section 12.07.

  	
  Relative Rights

  	
  85

  
	
  Section 12.08.

  	
  Subordination May Not Be Impaired by a Guarantor

  	
  85

  
	
  Section 12.09.

  	
  Rights of Trustee and Paying Agent

  	
  85

  
	
  Section 12.10.

  	
  Distribution or Notice to Representative

  	
  86

  
	
  Section 12.11.

  	
  Article XII Not to Prevent Events of Default or Limit Right to
  Accelerate

  	
  86

  
	
  Section 12.12.

  	
  Trustee Entitled To Rely

  	
  86

  
	
  Section 12.13.

  	
  Trustee To Effectuate Subordination

  	
  86

  
	
  Section 12.14.

  	
  Trustee Not Fiduciary for Holders of Designated Senior Debt of a
  Guarantor

  	
  87

  
	
  Section 12.15.

  	
  Reliance by Holders of Designated Senior Debt of a Guarantor on
  Subordination Provisions

  	
  87

  
	
   

  	
   

  
	
  ARTICLE XIII
  Miscellaneous

  	
  87

  
	
   

  	
   

  
	
  Section 13.01.

  	
  TIA Controls

  	
  87

  
	
  Section 13.02.

  	
  Notices

  	
  87

  
	
  Section 13.03.

  	
  Communication by Holders with Other Holders

  	
  88

  
	
  Section 13.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  88

  
	
  Section 13.05.

  	
  Statements Required in Certificate or Opinion

  	
  89

  
	
  Section 13.06.

  	
  When Securities Disregarded

  	
  89

  
	
  Section 13.07.

  	
  Rules by Trustee, Paying Agent and Registrar

  	
  89

  
	
  Section 13.08.

  	
  Legal Holidays

  	
  89

  
	
  Section 13.09.

  	
  GOVERNING LAW

  	
  90

  
	
  Section 13.10.

  	
  No Recourse Against Others

  	
  90

  
	
  Section 13.11.

  	
  Further Instruments and Acts

  	
  90

  
	
  Section 13.12.

  	
  Successors

  	
  90

  
	
  Section 13.13.

  	
  Multiple Originals

  	
  90

  
	
  Section 13.14.

  	
  Table of Contents; Headings

  	
  90

  
	
  Section 13.15.

  	
  Severability

  	
  90

  
	
  Section 13.16.

  	
  No Adverse Interpretation of Other Agreements

  	
  90

  
	
   

  	
   

  
	
  SCHEDULE
  A – DEBT EXISTING ON THE ISSUE DATE

  	
   

  
	
  SCHEDULE
  B – ASSETS HELD FOR SALE

  	
   

  
	
  SCHEDULE
  C – LIFE INSURANCE POLICIES

  	
   

  
	
  EXHIBIT A
  – FORM OF INITIAL SECURITY OR INITIAL ADDITIONAL SECURITY

  	
   

  
	
  EXHIBIT B
  – DTC LEGEND

  	
   

  
	
  EXHIBIT C
  – FORM OF SUPPLEMENTAL INDENTURE

  	
   

  



 


iv

















 


CROSS-REFERENCE
TABLE


 


	
  TIA Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N/A

  
	
   

  	
  (a)(4)

  	
   

  	
  N/A

  
	
   

  	
  (b)

  	
   

  	
  7.08; 7.10

  
	
   

  	
  (c)

  	
   

  	
  N/A

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N/A

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  13.03

  
	
   

  	
  (c)

  	
   

  	
  13.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
  N/A

  
	
   

  	
  (b)(2)

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
  13.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.02; 4.10

  
	
   

  	
  (b)

  	
   

  	
  N/A

  
	
   

  	
  (c)(1)

  	
   

  	
  13.04

  
	
   

  	
  (c)(2)

  	
   

  	
  13.04

  
	
   

  	
  (c)(3)

  	
   

  	
  13.04

  
	
   

  	
  (d)

  	
   

  	
  N/A

  
	
   

  	
  (e)

  	
   

  	
  13.05

  
	
   

  	
  (f)

  	
   

  	
  N/A

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05; 13.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a) (last sentence)

  	
   

  	
  13.06

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N/A

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  13.01

  



 






N/A means Not Applicable


Note:  This Cross-Reference Table shall not, for any
purpose, be deemed to be part of this Indenture.


 


v














 


INDENTURE dated as of
[           ], among
FLEETWOOD ENTERPRISES, INC., a DELAWARE corporation (the “Issuer”), its
Subsidiaries listed on the signature pages hereof as initial guarantors
(each an “Initial Guarantor”), and [       ]
(the “Trustee”).


 


Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of (i) the
Issuer’s 14% Senior Secured Securities due 2011 issued on the Issue Date, (ii) any
Additional Securities (as defined herein) that may be issued from time to time
after the Issue Date:


 


ARTICLE I


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION 1.01. 
Definitions.


 


“1998 Subordinated
Debentures”  means the
Issuer’s 6% Convertible Subordinated Debentures due February 15, 2028 in
the original principal amount of $296,400,000.


 


“2003 Subordinated
Debentures”  means
$100,000,000 in original principal amount of unsecured, convertible senior
subordinated debentures issued by the Issuer on December 22, 2003.


 


“Additional Securities” means any Securities
issued under this Indenture in addition to the Initial Securities having the
same terms in all respects as the Initial Securities except that interest will
accrue on the Additional Securities from their issue date.


 


“Affiliate” means, as to any Person, any other
Person which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person or which owns, directly or indirectly,
ten percent (10%) or more of the outstanding equity interest of such Person.  A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of the other
Person, whether through the ownership of voting securities, by contract, or
otherwise.


 


“After-Acquired Property” means First Lien
After-Acquired Property and Second Lien After-Acquired Property.


 


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


 


“Asset Sale” means any direct or indirect sale,
issuance, conveyance, transfer, lease (other than operating leases entered into
in the ordinary course of business), assignment or other transfer for value by
the Issuer or any of its Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Issuer or a Guarantor of (A) any
Capital Stock of any Subsidiary of the Issuer; or (B) any other property
or assets of the Issuer or any Subsidiary of the Issuer; provided, however,
that Asset Sales shall not include:


 

















 


(1)           sales
or other dispositions of Inventory in the ordinary course of business;


 


(2)           sales,
trade-ins, exchanges or other dispositions of Equipment in the ordinary course
of business that is obsolete or no longer usable by the Issuer or any of its
Subsidiaries in its business with an orderly liquidation value not to exceed
$5,000,000 in any fiscal year;


 


(3)           sales,
trade-ins, exchanges or other dispositions of assets by the Issuer or any of
its Subsidiaries (other than First Lien Collateral or Second Lien Collateral) with
an orderly liquidation value not to exceed $5,000,000 in the aggregate;


 


(4)           the
winding-up or dissolution of an Inactive Subsidiary or an Excluded Subsidiary;


 


(5)           a
Sale and Leaseback Transaction permitted by the terms of this Indenture;


 


(6)           the
sale, lease, conveyance, disposition or other transfer of Assets Held For Sale;


 


(7)           sales
or grants of licenses to use the patents, trade secrets, know-how and other
intellectual property of the Issuer or any of its Subsidiaries in accordance
with industry practice in the ordinary course of business to the extent that
such license does not prohibit the Issuer or any of its Subsidiaries from using
the technologies licensed or require the Issuer or any of its Subsidiaries to
pay any fees for any such use;


 


(8)           the
sale, lease, conveyance, disposition or other transfer: of all or substantially
all of the assets of the Issuer as permitted by Section 5.01;


 


(9)           the
sale, lease, conveyance, disposition or other transfer of any Capital Stock or
other ownership interest in or assets or property of a Person which is not a
Subsidiary, pursuant to any foreclosure of assets or other remedy provided by
applicable law to a creditor of the Issuer or any of its Subsidiaries with a
Lien on such assets, which Lien is a Permitted Lien; provided that such
foreclosure or other remedy is conducted in a commercially reasonable manner or
in accordance with any bankruptcy law, involving only Cash Equivalents or
Inventory in the ordinary course of business or obsolete or worn out property
or property that is no longer useful in the conduct of the business of the
Issuer or its Subsidiaries in the ordinary course of business consistent with
past practices of the Issuer or such Subsidiary, or including only the lease or
sublease of any real or personal property in the ordinary course of business;


 


(10)         Events
of Loss;


 


(11)         the
consummation of any transaction in accordance with Section 4.04; and


 


(12)         the
making of a Permitted Investment (other than a Permitted Investment to the
extent such transaction results in the receipt of cash or Cash Equivalents by
the Issuer or any of its Subsidiaries.


 


“Assets Held For Sale”  means
those certain assets or properties defined as “Assets Held for Sale” under the
Existing Credit Facilities, as in effect on the Ninth Amendment Effective Date,
and set forth in Schedule B to this Indenture.


 


2

















 


“Attributable Debt” in respect of a Sale and
Leaseback Transaction means, at the time of determination, the present value of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such Sale and Leaseback Transaction including any
period for which such lease has been extended or may, at the option of the
lessee, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP.


 


“Authenticating Agent” refers to a Person
engaged to authenticate the Securities in the stead of the Trustee.


 


“Bank Products”
means any one of the following types of services or facilities extended to the
Issuer or any of its Subsidiaries by a lender or agent under Credit Facilities,
or any of its Affiliates in reliance on the agreement of such lender or agent
under Credit Facilities to indemnify such Affiliate: (i) credit cards, (ii) any
cash management or related services, including the automatic clearinghouse
transfer of funds by such lender or agent under Credit Facilities for the
account of any of the Issuer and its Subsidiaries pursuant to agreement or
overdrafts, (iii) cash management, including controlled disbursement
services; and (iv) Hedge Agreements.


 


“Bankruptcy Code”
means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).


 


“Beneficial
Owner,” “Beneficially
Own” and “Beneficial
Ownership” have the meanings assigned to such terms in Rule 13d-3
and Rule 13d-5, under the Exchange Act, except that in calculating the
Beneficial Ownership of any particular “person” or “group”, as such terms are
used in Section 13(d)(3) of the Exchange Act, such person or group
shall be deemed to have beneficial ownership of all shares of Capital Stock
that such person or group has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.


 


“Board of
Directors” means, with respect to any Person, the board of directors
(or any body performing similar functions) of such Person, or (except if used
in the definition of “Change of Control”) any authorized committee of the board
of directors (or such body) of such Person.


 


“Borrowing Base” means the “Borrowing Base” as such
term is defined in the Existing Credit Facilities, as the same may be modified
in accordance with Section 4.19, provided, that, without duplication of
any increase to the Borrowing Base as a result of amendments contemplated by
the proviso under Section 4.19, for purposes of calculating the Borrowing
Base, the Borrowing Base shall be increased (without modification of the
definition thereof in the Existing Credit Facilities) by an amount of cash, not
to exceed the aggregate undrawn face amount of all letters of credit issued
under Credit Facilities outstanding on any relevant calculation date, so long
as such cash is held in a deposit account subject to a control agreement or
other similar agreement prohibiting the release of cash therefrom without the
consent of the agent under the applicable Credit Facilities.


 


“Business Day”
means any day that is not a Saturday, Sunday, or a day on which banks in Los
Angeles, California, New York, New York or Charlotte, North Carolina are
required or permitted to be closed.


 


3

















 


“Capital Lease” of a Person means any lease of
property by such Person which, in accordance with GAAP, should be reflected as
a capital lease on the balance sheet of such Person.


 


“Capital Stock” means any and all shares,
interests, participations or other equivalents (however designated) of capital
stock or other equity interests, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants, rights, options
to purchase or other rights to acquire any of the foregoing (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).


 


“Capitalized Lease Obligation” means, as to any
person, the obligations of such person under a lease that are required to be
classified and accounted for as capital lease obligations under GAAP and, for
purposes of this definition, the amount of such obligations at any date shall
be the capitalized amount of such obligations at such date, determined in
accordance with GAAP.


 


“Cash Equivalents” means:


 


(1)           a
marketable obligation, maturing within two years after issuance thereof, issued
or guaranteed by the United States or an instrumentality or agency thereof;


 


(2)           a
certificate of deposit or banker’s acceptance, maturing within one year after
issuance thereof, issued by any lender under the Credit Facilities, or a
national or state bank or trust company or a European, Canadian or Japanese
bank, in each case having capital and surplus of at least $100,000,000 (provided that the aggregate face amount of all Investments
in certificates of deposit or bankers’ acceptances issued by the principal
offices of or branches of such European or Japanese banks located outside the
United States of America shall not at any time exceed 33% of all Investments
described in this definition);


 


(3)           open
market commercial paper, maturing within 270 days after issuance thereof, which
has a rating of A1 or better by S&P or P1 or better by Moody’s, or the
equivalent rating by any other nationally recognized rating agency;


 


(4)           repurchase
agreements and reverse repurchase agreements with a term not in excess of one
year with any financial institution which has been elected a primary Government
Notes dealer by the Federal Reserve Board or whose securities are rated AA or
better by S&P or Aa3 or better by Moody’s or the equivalent rating by any
other nationally recognized rating agency relating to marketable direct
obligations issued or unconditionally guaranteed by the United States of
America or any agency or instrumentality thereof and backed by the full faith
and credit of the United States of America;


 


(5)           “Money
Market” preferred stock maturing within six months after issuance thereof or
municipal bonds issued by a corporation organized under the laws of any state
of the United States, which has a rating of “A” or better by S&P or Moody’s
or the equivalent rating by any other nationally recognized rating agency;


 


4

















 


(6)           tax
exempt floating rate option tender bonds backed by letters of credit issued by
a national or state bank whose long-term unsecured debt has a rating of AA or
better by S&P or Aa2 or better by Moody’s or the equivalent rating by any
other nationally recognized rating agency; and


 


(7)           shares
of any money market mutual fund rated at least AAA or the equivalent thereof by
S&P or at least Aaa or the equivalent thereof by Moody’s or any other
mutual fund holding assets consisting (except for de minimis
amounts) of the type specified in clauses (1) through (6) above.


 


“Certificated Security” means a Security in
registered individual form without interest coupons.


 


“Change of Control” means the occurrence of any
of the following events:


 


(1)                                  the direct or
indirect sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or more series of related transactions,
of all or substantially all of the assets of the Issuer and its subsidiaries,
taken as a whole, to any person other than the Issuer or a direct or indirect
subsidiary of the Issuer;


 


(2)                                  the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that  any
“person” (as such term is used in Section 13(d) and Section 14(d) of
the Exchange Act) becomes the “beneficial owner” (as defined in Rules 13(d)(3) and
13(d)(5) under the Exchange Act), directly or indirectly, of more than 50%
of the outstanding Voting Stock of the Issuer or other Voting Stock into which
the Issuer’s Voting Stock is reclassified, consolidated, exchanged or changed,
measured by voting power rather than number of shares;


 


(3)                                  the Issuer
consolidates with, or merges with or into, any person, or any person
consolidates with, or merges with or into, the Issuer, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the
Issuer or such other person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the shares of the
Voting Stock of the Issuer outstanding immediately prior to such transaction
constitute, or are converted into or exchanged for, a majority of the Voting
Stock of the surviving person or any direct or indirect parent company of the
surviving person immediately after giving effect to such transaction; or


 


(4)                                  the first day
on which a majority of the members of the Board of Directors of the Issuer are
not Continuing Directors;


 


provided, however, that a transaction shall not be deemed to involve a
Change of Control under clause (1) or (2) above if: (i) the
Issuer becomes a direct or indirect wholly-owned subsidiary of a holding
company or a holding company becomes the successor to the Issuer and (ii) the
direct or indirect holders of the Voting Stock of such 


 


5

















 


holding company immediately following that transaction are substantially
the same as the holders of the Issuer’s Voting Stock immediately prior to that
transaction.


 


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


 


“Collateral” means
all First Lien Collateral and Second Lien Collateral.


 


“Collateral Account”
means the collateral account established in accordance with the Collateral
Documents in the name of the Collateral Agent for the benefit of the Holders of
Securities.


 


“Collateral Agent’s Liens” means the Liens in
the Collateral granted to the Collateral Agent, for the benefit of the Holders,
the Trustee and the Collateral Agent pursuant to the Collateral Documents.


 


“Collateral Documents”
means any account control agreements, the mortgages, deeds of trust and other
documents, as the same may be amended, supplemented or otherwise modified from
time to time, pursuant to which Collateral is pledged, assigned or granted to
or on behalf of the Collateral Agent for the ratable benefit of the Holders of
the Securities and the Trustee or notice of such pledge, assignment or grant is
given.


 


“COLI Policies”
means company-owned life insurance policies entered into in the ordinary course
of business and consistent with past practice.


 


“Commission” means
the Securities and Exchange Commission or any successor agency.


 


“Continuing Director”
means, as of any date of determination, any member of the board of
directors of the Issuer who:


 


(1)           was a member of such board of directors on
the date hereof; or


 


(2)           was nominated for election, elected or
appointed to such board of directors with the approval of a majority of the
Continuing Directors who were members of such board of directors at the time of
such nomination, election or appointment (either by a specific vote or by
approval of a proxy statement of the Issuer in which such member was named as a
nominee for election as a director, without objection to such nomination).


 


“Corporate Trust Office” means the office of
the Trustee specified in Section 13.02 or any other office specified by
the Trustee from time to time pursuant to such Section.


 


“Credit Facilities” means, with respect to the
Issuer and its Subsidiaries, one or more credit facilities agented by a lending
institution (including the Existing Credit Facilities), as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time with an asset-backed lending credit facility agented by a
commercial bank or other financial institution.


 


“Debt”  means, with
respect to any Person and without duplication, all liabilities, obligations and indebtedness of such Person to any other Person, of
any kind or nature, now or 


 


6

















 


hereafter
owing, arising, due or payable, howsoever evidenced, created, incurred,
acquired or owing, whether primary, secondary, direct, contingent, fixed or
otherwise, consisting of indebtedness for borrowed money or the deferred
purchase price of property, excluding trade payables incurred in the ordinary
course of business, but including (a) all Obligations under Credit
Facilities; (b) all obligations and liabilities of any other Person
secured by any Lien on such Person’s property, even though such Person shall
not have assumed or become liable for the payment thereof; provided, however,
that all such obligations and liabilities which are limited in recourse to such
property shall be included in Debt only to the extent of the book value of such
property as would be shown on a balance sheet of such Person prepared in
accordance with GAAP; (c) all obligations or liabilities created or
arising under any Capital Lease or conditional sale or other title retention
agreement with respect to property used or acquired by such Person, even if the
rights and remedies of the lessor, seller or lender thereunder are limited to
repossession of such property; provided, however, that all such
obligations and liabilities which are limited in recourse to such property
shall be included in Debt only to the extent of the book value of such property
as would be shown on a balance sheet of such Person prepared in accordance with
GAAP; (d) all obligations and liabilities under Guarantees; (e) the
present value of lease payments due under synthetic leases; (f) all
obligations and liabilities under any preferred stock (including the Trust
Securities) or similar securities; and (g) indebtedness or other payment
obligations in respect of Hedging Obligations and Bank Products.


 


“Default” means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured, waived, or
otherwise remedied during such time) constitute an Event of Default.


 


“Depositary” means the depositary of each
Global Security, which will initially be DTC.


 


“Designated Senior Debt”
means any Debt under Credit Facilities (including Guarantees of such Debt by
the Issuer or any of its Subsidiaries) and any Debt under Hedging Agreements or
Bank Products, in each case incurred by the Issuer or any of its Subsidiaries
(including any extended or renewed letters of credit deemed incurred on the
initial issue date thereof); provided that “Designated Senior Debt” shall not
include:  (i) that portion of any
Debt under Credit Facilities (including Guarantees of such Debt by the Issuer
or any of its Subsidiaries) in an amount in excess of the sum of $160,000,000 less the aggregate amount of all Net Proceeds from Asset
Sales applied in accordance with Section 4.06(b)(2)(i) and (ii) that
portion of any Debt under Hedging Agreements or Bank Products in an amount in
excess of $20,000,000, in each case
when incurred; provided further that any Debt under Credit Facilities
(including Guarantees of such Debt by the Issuer or any of its Subsidiaries)
and any Debt under Hedging Agreements or Bank Products shall constitute
Designated Senior Debt if the lenders under the Credit Facilities obtained an
Officers’ Certificate at the time of incurrence to the effect that such Debt
was permitted to be incurred hereunder.


 


“Disqualified Stock”
means any class or series of Capital Stock of any Person that by its terms or
otherwise is:


 


(1)           required to be redeemed or is redeemable at
the option of the holder of such class or series of Capital Stock at any time
on or prior to the date that is 91 days after the Stated Maturity of the
Securities; or


 


7

















 


(2)           convertible
into or exchangeable at the option of the holder thereof for Capital Stock
referred to in clause (1) above or Debt having a scheduled maturity on or
prior to the date that is 91 days after the Stated Maturity of the Securities;


 


Notwithstanding the preceding sentence, (A) if
such Capital Stock is issued to any plan for the benefit of employees or by any
such plan to such employees, in each case in the ordinary course of business of
the Issuer or its Subsidiaries, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Issuer in order to satisfy applicable statutory or regulatory obligations; (B) any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Issuer to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Issuer shall not repurchase or redeem any such Capital Stock pursuant
to such provisions unless such repurchase or redemption complies with Section 4.04;
and (C) no Capital Stock held by any future, present or former employee,
director, officer or consultant of the Issuer (or any of its Subsidiaries)
shall be considered Disqualified Stock because such stock is redeemable or
subject to repurchase pursuant to any management equity subscription agreement,
stock option agreement, stock ownership plan, put agreement, stockholder
agreement or similar agreement that may be in effect from time to time.


 


For purposes hereof, the amount (or principal amount)
of any Disqualified Stock shall be equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any. The “maximum fixed repurchase price” of
any Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date as of which it shall be required
to be determined pursuant to this Indenture, and if such price is based upon,
or measured by, the fair market value of such Disqualified Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the issuer of such Disqualified Stock.


 


“Distribution” means,
in respect of any Person: (a) a payment, or the making of any dividend or
other distribution of property, in respect of Capital Stock of such Person,
other than distributions in Capital Stock of the same class; (b) the
redemption or other acquisition by such Person of its Capital Stock; (c) any
principal payment on, purchase, defeasance, redemption, prepayment, or other
acquisition or retirement for value, prior to any scheduled final maturity,
scheduled repayment or scheduled sinking fund payment, of any Debt of the
Issuer or any Guarantor that is subordinate or junior in right of payment to the
Securities or such Guarantor’s Security Guarantee, as the case may be (but in
any event, for the avoidance of doubt, excluding Designated Senior Debt); or (d) any
payment of interest in cash in respect of Subordinated Debt if such payment may
be deferred in accordance with terms thereof.


 


“Dollar” and “$” means dollars in the
lawful currency of the United States.


 


“Domestic
Subsidiary” means any Subsidiary other than a Foreign Subsidiary.


 


“DTC Legend” means the legend set forth in Exhibit B.


 


8

















 


“Equipment”
means, with respect to any Person, all of such Person’s now owned and hereafter
acquired machinery, equipment, furniture, furnishings, fixtures, and other
tangible personal property (except Inventory), including embedded software,
motor vehicles with respect to which a certificate of title has been issued,
aircraft, dies, tools, jigs, molds and office equipment, as well as all of such
types of property leased by such Person and all of such Person’s rights and
interests with respect thereto under such leases (including, without
limitation, options to purchase); together with all present and future
additions and accessions thereto, replacements therefor, component and
auxiliary parts and supplies used or to be used in connection therewith, and
all substitutes for any of the foregoing, and all manuals, drawings,
instructions, warranties and rights with respect thereto; wherever any of the
foregoing is located.


 


“Event of Default”
has the meaning as described under Section 6.01(a).


 


“Event of Loss”  means, with respect to any property or asset constituting
Collateral, any of the following:


 


(1)           any
loss, destruction or damage of such property or asset;


 


(2)           any
institution of any proceedings for the condemnation or seizure of such property
or asset or for the exercise of any right of eminent domain;


 


(3)           any
actual condemnation, seizure or taking by exercise of the power of eminent
domain or otherwise of such property or asset, or confiscation of such property
or asset or the requisition of the use of such property or asset; or


 


(4)           any
settlement in lieu of clauses (2) or (3) above.


 


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


 


“Excluded Subsidiaries” means, collectively,
Subsidiaries of the Issuer other than the Guarantors.


 


“Existing Credit
Facilities” means the Third Amended and Restated Credit Agreement,
dated as of January 5, 2007, among the Issuer, Fleetwood Holdings, Inc.
and certain of its Subsidiaries, the banks and other financial institutions
signatory thereto, and Bank of America, N.A., as administrative agent and
collateral agent, and any related notes, collateral documents, letters of
credit and guarantees, including any appendices, exhibits or schedules to any
of the foregoing (as the same may be in effect from time to time), in each
case, as such agreements may be amended, modified, supplemented or restated
from time to time, or refunded, refinanced, restructured, replaced, renewed,
repaid or extended from time to time (whether with the original agents and
lenders or other agents or lenders or otherwise, and whether provided under the
original credit agreement or other credit agreements or otherwise) with an
asset-backed lending credit facility agented by a commercial bank or other
financial institution.


 


“Existing Debentures
Debt” means the unsecured Debt from time to time outstanding under
the 1998 Subordinated Debentures and the 2003 Subordinated Debentures and the
maximum liability of the Issuer on any subordinated Guarantee of the Trust
Securities.


 


9














 


“Financial
Statements”
means, according to the context in which it is used, any financial statements
required to be given to the Trustee pursuant to this Indenture.


 


“First
Lien After-Acquired Property” means equipment or fixtures acquired by the
Issuer or any Subsidiary after the Issue Date which constitute accretions,
additions or technological upgrades to the equipment or fixtures that form part
of the First Lien Collateral.


 


“First
Lien Collateral” means Real Estate on which first-priority Liens are, from time to time,
granted to secure the Securities pursuant to the Collateral Documents; provided
that the aggregate appraised value of all First Lien Collateral on the Issue
Date shall equal $[    ].


 


“Fiscal
Quarter” means
any fiscal quarter of any Fiscal Year.


 


“Fiscal
Year” means the
Issuer’s fiscal year for financial accounting purposes, which currently ends on
the last Sunday in April.


 


“Fleetwood
Trust” means Fleetwood Capital Trust, a business trust
organized under the laws of the State of Delaware, whose sole assets consist of
the 1998 Subordinated Debentures.


 


“Foreign Subsidiary” means any Subsidiary of the Issuer
organized under the laws of any jurisdiction other than the United States or
any political subdivision thereof.


 


“GAAP” means generally
accepted accounting principles and practices set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession).  All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP as in effect
on the Issue Date.


 


“Global Security”
means a Security in registered global form without interest coupons.


 


“Governmental
Authority” means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.


 


“Government Notes” means
non-redeemable, direct obligations (or certificates representing an ownership
interest in such obligations) of, or obligations guaranteed by, the United
States of America (including any agency or instrumentality thereof) for the
payment of which guarantee or obligations the full faith and credit of the
United States is pledged.


 


“Guarantee”
means, with respect
to any Person, all obligations of such Person which in any manner directly or
indirectly guarantee or assure, or in effect guarantee or assure, the payment
or performance of any indebtedness, dividend or other obligations of any other
Person (the “guaranteed obligations”), or assure or in effect assure the holder
of the guaranteed obligations against loss in respect thereof, including any
such obligations incurred through an 


 


10

















 


agreement,
contingent or otherwise: (a) to purchase the guaranteed obligations or any
property constituting security therefor; (b) to advance or supply funds
for the purchase or payment of the guaranteed obligations or to maintain a
working capital or other balance sheet condition; or (c) to lease property
or to purchase any debt or equity securities or other property or services.


 


“Guarantors” means each Subsidiary of the Issuer
party to this Indenture and each Subsidiary of the Issuer that executes and
delivers a Security Guarantee after the Issue Date, in each case until released
from its Security Guarantee in accordance with the terms of this Indenture.


 


“Hedge
Agreement” means,
with respect to any Person, any and all transactions, agreements or documents
now existing or hereafter entered into, which provide for an interest rate,
credit, commodity or equity swap, cap, floor, collar, forward foreign exchange
transaction, currency swap, cross currency rate swap, currency option, or any
combination of, or option with respect to, these or similar transactions, for
the purpose of hedging such Person’s exposure to fluctuations in interest or
exchange rates, loan, credit exchange, security or currency valuations or
commodity prices.


 


“Holder” and “Holders”
means the Person in whose name a Security is registered on the Registrar’s
books.


 


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


 


“Initial Securities”
means the Securities issued on the Issue Date and any Securities issued in
replacement thereof.


 


“Intercreditor
Agreement” means that certain
Intercreditor Agreement, dated on or about the Issue Date, among Bank of
America, N.A. as the administrative agent under the Existing Credit Facilities
(the “Administrative Agent”), on behalf of the lenders under the Existing
Credit Facilities and as Priority Lien Collateral Agent, and the Trustee, on
behalf of the Holders of the Securities and [           ]
as the Collateral Agent (and together with the Administrative Agent, the “Secured
Parties”) as amended, restated, assigned or replaced (in substantially similar
form) as permitted hereunder.


 


“Inventory” means, with respect to any Person, all of such
Person’s now owned and hereafter acquired inventory, goods and merchandise,
wherever located, to be furnished under any contract of service or held for
sale or lease, all returned goods, raw materials, work-in-process, finished
goods (including embedded software), other materials and supplies of any kind,
nature or description which are used or consumed in such Person’s business or
used in connection with the packing, shipping, advertising, selling or finishing
of such goods, merchandise, and all documents of title or other Documents (as
such term is defined in the Uniform Commercial Code as in effect in the State
of New York) representing them.


 


“Investments” means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of direct
or indirect loans (but excluding advances to customers in the ordinary course
of business that are recorded as accounts receivable on the balance sheet of
such Person), or other extensions of credit (including by way of Guarantee or
similar arrangement, but excluding any debt or extension of credit represented
by a bank deposit 


 


11

















 


other than a time deposit) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, Debt, or similar instruments issued by, such Person and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP; provided that none of the following will be
deemed to be an Investment:


 


(1) Obligations in
respect of Hedging Agreements entered into in the ordinary course of business
in compliance with this Indenture;


 


(2) endorsements of
negotiable instruments and documents in the ordinary course of business; and


 


(3) an acquisition
of assets, Capital Stock or other securities by the Issuer or a Subsidiary for
consideration to the extent such consideration consists of Common Stock of the
Issuer.


 


“Issue Date” means
[              ].


 


“Issuer” means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Securities.


 


“Lien” means:  (a) any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, or
contract, and including a security interest, charge, claim, or lien arising
from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, agreement, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes; (b) to
the extent not included under clause (a), any reservation, exception,
encroachment, easement, right-of-way, covenant, condition, restriction, lease
or other title exception or encumbrance affecting property; and (c) any
contingent or other agreement to provide any of the foregoing.


 


“Moody’s” means
Moody’s Investors Service, Inc.


 


“Net Loss Proceeds” means the aggregate cash proceeds received by the Issuer or any of its
Subsidiaries in respect of any Event of Loss, including, without limitation, insurance proceeds,
condemnation awards or damages awarded by any judgment, net of the direct cost
in recovery of such Net Loss Proceeds (including, without limitation, legal,
accounting, appraisal and insurance adjuster fees and any relocation expenses
incurred as a result thereof), amounts to be applied to the repayment of Debt
secured by any Permitted Lien on the asset or assets that were the subject of such
Event of Loss, and any taxes paid or payable as a result thereof.


 


“Net Proceeds”
means the aggregate cash proceeds or Cash Equivalents received by the Issuer or
any of its Subsidiaries in respect of any Asset Sale (including any cash
received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of (A) commissions and other customary
transaction costs, fees and expenses properly attributable to such transaction
and payable by the Issuer or such Subsidiary in connection therewith (other
than any amounts payable to any Affiliate), (B) transfer taxes, (C) amounts
payable to holders of 


 


12

















 


senior Liens (to
the extent that such Liens are Permitted Liens), if any, and (D) an
appropriate reserve for income taxes in accordance with GAAP in connection
therewith.


 


“Ninth Amendment
Effective Date” means October 29,
2008, the “Effective Date” as defined in the Ninth Amendment to the Existing
Credit Facilities.


 


“Obligations” means
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages, Guarantees and other liabilities payable under the documentation
governing any Debt, in each case, whether now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred, whether or not arising on or after the
commencement of a proceeding under Title 11, U.S. Code or any similar federal
or state law for the relief of debtors (including post-petition interest) and
whether or not allowed or allowable as a claim in any such proceeding,
including with respect to Obligations in respect of the Existing Credit
Facilities, “Obligations” as defined in the Existing Credit Facilities as in effect
on the Ninth Amendment Effective Date.


 


“Officers” means any of the
following:  Chairman, President, Chief
Executive Officer, Treasurer, Chief Financial Officer, Executive Vice
President, Senior Vice President, Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer reasonably acceptable to
the Trustee.


 


“Officers’ Certificate” means a
certificate signed by two Officers.


 


“Opinion of Counsel”
means a written opinion from legal counsel which opinion is reasonably acceptable
to the Trustee. The counsel may be an employee of or counsel to the Issuer. As
to matters of fact, an Opinion of Counsel may conclusively rely on an Officers’
Certificate, without any independent investigation.


 


“Payment” means,
with respect to the Security Guarantees, any payment, whether in cash or other
assets or property, of interest, principal or any other amount on, of or in
respect of the Securities, any other acquisition of Securities and any deposit
into the trust described in Article VIII. 
The verb “pay” has a correlative meaning.


 


“Permitted Business”
means the businesses conducted by the Issuer and its Subsidiaries as of the
Issue Date and any other business reasonably related, complementary or
incidental to any of those businesses.


 


“Permitted Collateral
Liens” means Liens permitted under clauses (1) (to the extent such
Lien constitutes a Lien on Second Lien Collateral), (2) (5) and (6) of
the definition of “Permitted Liens.”


 


“Permitted Investments”
means by the Issuer or any Subsidiary, any Investment:


 


(1)           in the Issuer or a Guarantor (including in the form of
intercompany Debt or in any Capital Stock of a Guarantor otherwise permitted
under this Indenture);


 


(2)           in (a) cash or Cash Equivalents or (b) to
the extent determined by the Issuer in good faith to be necessary for local
currency working capital requirements of a 


 


13

















 


Foreign
Subsidiary, other cash equivalents, provided
in the case of clause (b), the Investment is made by the Foreign
Subsidiary having such requirements;


 


(3)           in a Person, if as a result of such Investment (A) such
Person becomes a Guarantor or (B) such Person, in one transaction or a
series of substantially concurrent related transactions, is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Issuer or a Guarantor;


 


(4)           in any securities or other assets received or other
Investments made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.06
or in connection with any disposition of assets not constituting an Asset Sale;


 


(5)           solely in exchange for the issuance of Capital Stock
of the Issuer;


 


(6)           in receivables owing to the Issuer or any Subsidiary of the Issuer, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms (including such concessionary terms as the Issuer or Subsidiary of
the Issuer deems reasonable);


 


(7)           in loans or advances to employees and officers (or guarantees of
third-party loans to employees or
officers) in the ordinary course of business;


 


(8)           in stock, obligations or securities received in
satisfaction of judgments, foreclosure of liens or settlement of litigation,
disputes or debts as a result of bankruptcy or insolvency proceedings or
pursuant to any plan of reorganization;


 


(9)           existing on the Issue Date or made pursuant to legally
binding written commitments in existence on the Issue Date;


 


(10)         in Hedge Agreements not otherwise prohibited under
this Indenture;


 


(11)         in split dollar life insurance policies on officers
and directors of the Issuer and its Subsidiaries in the ordinary course of
business;


 


(12)         in operating leases, Equipment, Inventory and other
property and assets owned or used by the Issuer or any Subsidiary in the
ordinary course of business;


 


(13)         in licenses in the ordinary course of business; or


 


(14)         in additional Investments having an aggregate fair
market value, taken together with all other Investments made pursuant to this
clause (14) that are at that time outstanding, not to exceed $10,000,000 at the
time of such Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value).


 


14

















 


“Permitted Junior
Securities” means (1) Capital Stock of the Issuer or any Guarantor; or
(2) debt securities of the Issuer or any Guarantor that (A) are
subordinated to all Designated Senior Debt and any debt securities issued in
exchange for Designated Senior Debt to substantially the same extent as, or to
a greater extent than the Guarantees of the Securities are subordinated to Designated
Senior Debt pursuant to the terms of this Indenture and (B) have a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of the Securities.


 


“Permitted Liens”
means:


 


(1)           Liens securing Debt incurred pursuant to Section 4.03(b)(1) that
was permitted by the terms of this Indenture to be incurred, including Liens in
respect of any cash collateral accounts pledged to support any such Debt
(including Debt under letters of credit);


 


(2)           Liens for taxes not delinquent or statutory Liens for
taxes in an amount not to exceed $3,000,000 provided that the payment of such
taxes which are due and payable is being contested in good faith and by
appropriate proceedings diligently pursued and as to which adequate financial
reserves have been established on books and records of the Issuer and its
Subsidiaries and a stay of enforcement of any such Lien is in effect;


 


(3)           Liens of the Trustee or Collateral Agent or Liens in
favor of the Issuer or any of its Subsidiaries;


 


(4)           Liens consisting of deposits made in the ordinary
course of business in connection with, or to secure payment of, obligations
under worker’s compensation, unemployment insurance, social security and other
similar laws, or to secure the performance of bids, tenders or contracts (other
than for the repayment of Debt) or to secure indemnity, performance or other
similar bonds for the performance of bids, tenders or contracts (other than for
the repayment of Debt) or to secure statutory obligations (other than Liens
arising under the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder, or Liens in favor of any governmental
authority for any liability under applicable environmental laws or damages
arising from, or costs incurred by such governmental authority in response to,
a release or threatened release of a contaminant into the environment) or
surety or appeal bonds, or to secure indemnity, performance or other similar
bonds;


 


(5)           Liens securing the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons, provided
that if any such Lien arises from the nonpayment of such claims or demand when
due, such claims or demands do not exceed $1,000,000 in the aggregate at any
time;


 


(6)           Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way, covenants
running with the land, and other similar title exceptions or encumbrances
affecting any Real Estate; provided 


 


15

















 


that they do not
in the aggregate materially detract from the value of the Real Estate or
materially interfere with its use in the ordinary conduct of the Issuer’s
business;


 


(7)           Liens arising from judgments and attachments in
connection with court proceedings provided that the attachment or enforcement
of such Liens would not result in an Event of Default hereunder and such Liens
are being contested in good faith by appropriate proceedings, adequate reserves
have been set aside and no material property is subject to a material risk of
imminent loss or forfeiture and a stay of execution pending appeal or
proceeding for review is in effect;


 


(8)           Liens on the assets of the Issuer or any Subsidiary
securing Debt existing on the Issue Date and refundings, renewals,
refinancings, replacements, defeasances and extensions thereof to the extent
permitted under Section 4.03(b)(6);


 


(9)           Interests of lessors under operating leases;


 


(10)         other Liens securing Debt not in excess of $1,000,000
in the aggregate at any time outstanding;


 


(11)         Liens securing the Obligations under the Securities
(including PIK Securities and Additional Securities);


 


(12)         Liens on assets of the Excluded Subsidiaries, as long
as the holder of such Lien has no recourse to the Issuer or any Guarantor or
its assets;


 


(13)         to the extent permitted thereunder, Liens securing
Debt permitted under clauses (4), (5), (6), (11) and (13) of Section 4.03(b);


 


(14)         Liens on any Real Estate that does not constitute
Collateral;


 


(15)         bankers liens and rights of set off with respect to
customary depositary arrangements entered into in the ordinary conduct of
business;


 


(16)         Liens securing Debt permitted under Section 4.03(b)(9);
provided that (i) such Liens also extends to all of the assets and
properties that secure Debt incurred under the Existing Credit Facilities and (ii) such
Liens are senior to or on a parity with the Liens securing Debt under the
Existing Credit Facilities;


 


(17)         Liens on or in respect of the Collateral Account
securing the Obligations under the Securities;


 


(18)         Liens on or in respect of cash collateral securing
additional obligations in an amount not to exceed $20,000,000 in the aggregate
in respect of letters of credit permitted under of Section 4.03(b)(12);
and


 


16

















 


(19)         Liens on life insurance policies listed on a Schedule
C hereto to the extent such Liens are permitted by the Existing Credit
Facilities, securing Debt permitted under Section 4.03(b)(15).


 


“Person” means any
individual, sole proprietorship, partnership, limited liability company, joint
venture, trust, unincorporated organization, association, corporation,
Governmental Authority, or any other entity.


 


“Preferred Stock”
means, with respect to any Person, any Capital Stock of such Person (however
designated) that is preferred as to the payment of dividends or distributions,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over shares of Capital Stock of any
other class of such Person.


 


“Real Estate”
means, as to any Person, all of such Person’s now or hereafter owned or leased
estates in real property, including, without limitation, all fees, leaseholds
and future interests, together with all of such Person’s now or hereafter owned
or leased interests in the 


 


improvements thereon, the
fixtures attached thereto and the easements appurtenant thereto and any and all
income, rents, profits and proceeds thereof.


 


“Representative”
means any agent or representative in respect of any Designated Senior Debt; provided
that if, and for so long as, any Designated Senior Debt lacks such a
representative, then the Representative for such Designated Senior Debt shall
at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Debt.


 


“Restricted Investment”
means any Investment other the a Permitted Investment.


 


“S&P” means
Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc.


 


“Sale and Leaseback
Transaction” means any direct or indirect arrangement pursuant to which
property is sold or transferred by the Issuer or a Subsidiary of the Issuer and
is thereafter leased back as a Capital Lease by the Issuer or any Subsidiary.


 


“Second Lien
After-Acquired Property” means equipment or fixtures acquired by the Issuer
or any Subsidiary after the Issue Date which constitute accretions, additions
or technological upgrades to the equipment or fixtures that form part of the
Second Lien Collateral and any assets acquired by the Issuer or any Subsidiary
as contemplated by Section 4.06(b)(2)(ii).


 


“Second Lien
Collateral” means Real
Estate on which second-priority Liens are granted to secure the Securities
pursuant to the Collateral Documents; provided that in no event shall any Real
Estate be deemed to be Second Lien Collateral unless and until a first priority
mortgage with respect to such Real Estate is granted to secure the Designated
Senior Debt.


 


“Securities” means
any securities authenticated and delivered under this Indenture.  From and after the issuance of any Additional
Securities, “Securities” shall include such Additional 


 


17

















 


Securities for
purposes of this Indenture.  All
Securities, including any such Additional Securities, shall vote together as
one series of Securities under this Indenture.


 


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


 


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


 


“Security Guarantee” means the
unconditional Guarantee by each Guarantor of the Issuer’s Obligations under the
Securities, as set forth in Article XI hereof.  Any Guarantor that is not a party to this
Indenture on the Issue Date shall execute a Security Guarantee and become a
Guarantor by executing and delivering to the Trustee a supplemental indenture
pursuant to Section 4.12 substantially in the form of Exhibit C.


 


“Senior Officer” means the Chief
Executive Officer or the Chief Financial Officer of the Issuer.


 


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


 


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


 


“Subordinated
Debt” means any
Debt of the Issuer or any Guarantor (whether outstanding on the Issue Date or
thereafter incurred) that is contractually subordinate or junior in right of
payment to the Securities or the applicable Security Guarantee (but in any
event, for the avoidance of doubt, excluding Designated Senior Debt).


 


“Subsidiary” of a Person means any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which more than fifty percent (50%) of the voting Capital
Stock, is owned or controlled directly or indirectly by the Person, or one or
more of the Subsidiaries of the Person, or a combination thereof.  Unless the context otherwise clearly
requires, references herein to a “Subsidiary” refer to a Subsidiary of the
Issuer.


 


“TIA” means the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in
effect on the date of this Indenture, except as stated in Section 9.03.


 


“Trust Officer”
means, when used with respect to the Trustee or Paying Agent, any officer
within the corporate trust department of the Trustee or Paying Agent, as
applicable, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee or Paying Agent who customarily performs functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


18














 


“Trust Securities” means, collectively, (a) the
6% Convertible Trust Preferred Securities issued by Fleetwood Trust in February 1998
with a liquidation preference of $50 per share, guaranteed on a subordinated
unsecured basis by the Issuer, (b) any convertible preferred securities
issued by Fleetwood Trust in exchange therefor to the extent and only to the
extent that issuance of such securities is permitted under this Indenture, (c) any
additional securities issued by Fleetwood Trust concurrently with, and having
the same terms as, the securities issued in such exchange to the extent and
only to the extent that issuance of such securities is permitted under this
Indenture, and (d) the 6% Convertible Trust Common Securities issued by
Fleetwood Trust to the Issuer in February 1998.


 


“Trustee” means the party named as such in this
Indenture until a successor replaces it and, thereafter, means the successor.


 


“Uniform Commercial Code” means the Uniform
Commercial Code, as in effect from time to time, of the State of California or
of any other state the laws of which are required as a result thereof to be
applied in connection with the issues of perfection, continuation or
enforcement of security interests.


 


“Voting Stock” means, with respect to any
specified “person” as of any date, the capital stock of such person that is at
the time entitled to vote generally in the election of the board of directors
of such Person.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing:


 


(1)           the then outstanding aggregate principal amount of
such Indebtedness, into


 


(2)           the sum of the total of the products obtained by
multiplying


 


(i)            the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal, including payment
at final maturity, in respect thereof, by


 


(ii)           the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment.


 


19

















 


SECTION 1.02. 
Other Definitions.


 


	
  Affiliate Transaction

  	
   

  	
  4.08

  
	
  Asset Sale Offer

  	
   

  	
  4.06(c)

  
	
  Bankruptcy Law

  	
   

  	
  6.01(c)

  
	
  Cash Interest

  	
   

  	
  Exhibit A

  
	
  Change of Control Offer

  	
   

  	
  4.09

  
	
  Change of Control Payment

  	
   

  	
  4.09

  
	
  Collateral Agent

  	
   

  	
  10.02(a)

  
	
  Covenant Defeasance

  	
   

  	
  8.01(c)

  
	
  Custodian

  	
   

  	
  6.01(c)

  
	
  DTC

  	
   

  	
  2.03

  
	
  Event of Default

  	
   

  	
  6.01(a)

  
	
  Event of Loss Offer

  	
   

  	
  4.07(b)

  
	
  Guaranteed Obligations

  	
   

  	
  11.01(a)

  
	
  Indemnified Party

  	
   

  	
  7.07

  
	
  Initial Guarantor

  	
   

  	
  Preamble

  
	
  Issuer

  	
   

  	
  Preamble

  
	
  Legal Defeasance

  	
   

  	
  8.01(b)

  
	
  Legal Holiday

  	
   

  	
  13.08

  
	
  Offer Amount

  	
   

  	
  3.09(a)(i)(B)

  
	
  Offer Period

  	
   

  	
  3.09(a)(i)

  
	
  Paying Agent

  	
   

  	
  2.03

  
	
  Payment Blockage Notice

  	
   

  	
  12.03(a)(2)

  
	
  PIK Interest

  	
   

  	
  Exhibit A

  
	
  PIK Payment

  	
   

  	
  2.02(d)

  
	
  PIK Securities

  	
   

  	
  2.02(d)

  
	
  Premises

  	
   

  	
  10.06

  
	
  Property Substitution

  	
   

  	
  10.09(a)

  
	
  protected purchaser

  	
   

  	
  2.04

  
	
  Purchase Date

  	
   

  	
  3.09(a)(i)(B)

  
	
  Register

  	
   

  	
  2.11(a)

  
	
  Registrar

  	
   

  	
  2.03

  
	
  Replaced Property

  	
   

  	
  10.09(a)(4)

  
	
  Repurchase Offer

  	
   

  	
  3.09(a)

  
	
  retiring Trustee

  	
   

  	
  7.08

  
	
  Subject Property

  	
   

  	
  4.07(a)(1)

  
	
  Substituted Property

  	
   

  	
  10.09(a)

  
	
  Substituted Property Appraisal

  	
   

  	
  10.09(a)(3)

  
	
  Substituted Property Mortgage

  	
   

  	
  10.09(a)(5)(i)

  
	
  Trustee

  	
   

  	
  Preamble

  



 


SECTION 1.03. 
Incorporation by Reference of TIA.  This Indenture is subject to the mandatory
provisions of the TIA, which are incorporated by reference in and made a part
of this Indenture, except that Section 316 is expressly excluded, to the
maximum extent permissible thereunder. 
The following TIA terms have the following meanings:


 


20

















 


“indenture securities” means the Securities.


 


“indenture security holder” means a Holder.


 


“indenture to be qualified” means this Indenture.


 


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


 


“obligor” on the indenture securities means the Issuer
and any other obligor on the indenture securities.


 


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


 


SECTION 1.04. 
Rules of Construction. 
Unless the context otherwise requires:


 


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


 


(2)           an accounting term not otherwise defined
has the meaning assigned to it, and all accounting determinations shall be
made, in accordance with GAAP;


 


(3)           “or” is not exclusive;


 


(4)           “including” means “including without
limitation”;


 


(5)           words in the singular include the plural
and words in the plural include the singular;


 


(6)           unsecured Debt shall not be deemed to be
subordinate or junior to secured Debt merely by virtue of its nature as
unsecured Debt;


 


(7)           all references to “principal” of the
Securities include redemption price and purchase price;


 


(8)           all exhibits are incorporated by
reference herein and expressly made a part of this Indenture; and


 


(9)           any transaction or
event shall be considered “permitted by” or made “in accordance with” or “in
compliance with” this Indenture or any particular provision thereof if such
transaction or event is not expressly prohibited by this Indenture or such
provision, as the case may be.


 


21

















 


ARTICLE II


 


THE
SECURITIES


 


SECTION 2.01. 
Form, Dating and Denominations.


 


(a)           The Securities and the Trustee’s
certificate of authentication shall be substantially in the form attached as Exhibit A.  The terms and provisions contained in the
form of the Securities annexed as Exhibit A constitute, and are hereby
expressly made, a part of this Indenture. 
The Securities may have notations, legends or endorsements required by
law, rules of or agreements with national securities exchanges to which
the Issuer is subject, or usage.  Each
PIK Security will be issued with the description “PIK” on the face of such PIK
Security.  Each Security shall be dated
the date of its authentication.  The
Securities shall be issuable, in the case of Initial Securities and Additional
Securities, in denominations of $1,000 in principal amount and any multiple of
$1,000 in excess thereof and, in the case of PIK Securities, in denominations
of $1.00 in principal amount and any multiple of $1.00 in excess thereof.


 


(b)           The terms and provisions contained in the
Securities will constitute, and are hereby expressly made part of this
Indenture and the Issuer and the Trustee, by their execution and delivery of
this Indenture expressly agree to such terms and provisions and to be bound
thereby.  However, to the extent any
provision of any Security conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.


 


(c)           Each Global Security, whether or not an
Initial Security or Additional Security, shall bear the DTC Legend.


 


SECTION 2.02. 
Execution and
Authentication; Additional Securities.


 


(a)           An Officer shall execute the Securities
for the Issuer by facsimile or manual signature in the name and on behalf of
the Issuer.  If an Officer whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall still be valid.


 


(b)           A Security shall not be valid until the
Trustee manually signs the certificate of authentication on the Security, with
the signature conclusive evidence that the Security has been authenticated
under this Indenture.


 


(c)           At any time and from time to time after
the execution and delivery of this Indenture, the Issuer may deliver Securities
executed by the Issuer to the Trustee for authentication; provided that the
aggregate principal amount of Initial Securities and Additional Securities
outstanding at any time shall not exceed $103,000,000.  The Trustee shall authenticate and deliver:


 


(i)            Initial Securities for original issue in
the aggregate principal amount not to exceed
$[               ],


 


22

















 


(ii)           Additional Securities from time to time
prior to December 16, 2008 for original issue in aggregate principal
amounts specified by the Issuer which, together with the aggregate principal
amount of Initial Securities, shall not exceed $103,000,000; and


 


(iii)          PIK
Securities issued in payment of PIK Interest, after receipt by the Trustee of
an Officers’ Certificate specifying:


 


(1)           the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated,


 


(2)           whether the Securities are to be Initial
Securities, Additional Securities or PIK Securities,


 


(3)           in the case of Additional Securities,
that the issuance of such Securities does not contravene any provision of this
Indenture,


 


(4)           whether the Securities are to be issued
as one or more Global Securities or Certificated Securities,


 


(5)           other information the Issuer may
determine to include or the Trustee may reasonably request, and


 


(6)           direction for the Trustee to authenticate
such Securities.


 


(d)           In connection with the payment of PIK
Interest in respect of the Securities, the Issuer is entitled, without the
consent of the Holders, to increase the outstanding principal amount of the
Securities or issue additional Securities (the “PIK Securities”) under
this Indenture on the same terms and conditions as the Initial Securities (in
each case, the “PIK Payment”). 
The Securities, the PIK Securities and any Additional Securities
subsequently issued under this Indenture will be treated as a single class for
all purposes under this Indenture, including sharing ratably in the
first-priority mortgages or deeds of trust on the First Lien Collateral and in
the second-priority mortgages or deeds of trusts on the Second Lien Collateral
and sharing ratably in the benefits available under the Security Guarantees. Unless
the context requires otherwise, references to “Securities” for all purposes of
this Indenture include any PIK Securities and Additional Securities that are
actually issued, and references to “principal amount” of the Securities
includes any increase in the principal amount of the outstanding Securities as
a result of a PIK Payment.


 


On any Interest Payment Date on which the Issuer pays
PIK Interest with respect to a Global
Security, the Trustee shall increase the principal amount of such Global Security
by an amount equal to the interest payable, rounded up to the nearest $1,000,
for the relevant three-month interest period on the principal amount of such
Global Security as of the relevant record date for such interest payment date,
to the credit of the Holders on such record date, pro rata in accordance with
their interests, and an adjustment shall be made on the books and records of
the Trustee (if it is then the Custodian for such Global Security) with respect
to such Global Security, by the Trustee or the Custodian, to reflect such
increase. On any interest payment date on which the Issuer pays PIK Interest by
issuing definitive PIK Securities, the principal amount of any such PIK
Securities issued to any Holder, for the relevant three-month interest period
as 


 


23

















 


of
the relevant record date for such interest payment date, shall be rounded up to
the nearest $1.00.  PIK Securities shall
be dated as of the applicable interest payment date and will bear interest from
and after such date.


 


SECTION 2.03. 
Registrar and Paying Agent. 
The Issuer shall maintain an office or agency where Securities may be
presented for registration of transfer, exchange, repurchase or redemption (the
“Registrar”) and an office or agency where Securities may be presented
for payment (the “Paying Agent”) and where notices and demands to or
upon the Issuer in respect of the Securities and this Indenture may be
served.  The Registrar shall keep a
register of the Securities and of their transfer and exchange.  The office of [             ]
shall initially be such office or agency for all of the aforesaid
purposes.   The Issuer may have one or
more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent.


 


The Issuer shall give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency.  If at any time the Issuer 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 address of the Trustee set forth in Section 13.02.


 


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


 


The Issuer initially designates the Corporate Trust
Office as such office of the Issuer in accordance with this Section 2.03.


 


The Issuer shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the terms of the TIA not otherwise excluded
hereunder.  The agreement shall implement
the provisions of this Indenture that relate to such agent.  The Issuer shall notify the Trustee of the
name and address of any such agent.  If
the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07.  Either the Issuer or any domestically
organized Subsidiary may act as Paying Agent, Registrar, co-registrar or
transfer agent.


 


The Issuer initially appoints the Trustee as Registrar
and Paying Agent in connection with the Securities.


 


The Issuer initially appoints The Depository Trust
Company (“DTC”) to act as Depositary with respect to the Global
Securities, and the Trustee shall initially be the securities custodian with
respect to the Global Securities.


 


The Issuer may remove any Registrar or Paying Agent
upon written notice to such Registrar or Paying Agent and to the Trustee, provided
that no such removal shall become 


 


24

















 


effective until (1) acceptance
of an appointment by a successor as evidenced by an appropriate agreement
entered into by the Issuer and such successor Registrar or Paying Agent, as the
case may be, and delivered to the Trustee or (2) notification to the
Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (1) above.  The Registrar or Paying Agent may resign at
any time upon not less than 10 Business Days’ prior written notice to the
Issuer; provided, however, that the Trustee may resign as Paying
Agent or Registrar only if the Trustee also resigns as Trustee in accordance
with Section 7.08.


 


SECTION 2.04. 
Paying Agent to Hold Money in Trust.  On or before 11:00 a.m. on each due date
of the principal and interest on any Security, the Issuer shall deposit with
the Paying Agent (or if the Issuer or a Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum and, if applicable, PIK Securities sufficient to pay such principal and
interest when so becoming due.  The
Issuer shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money and, if applicable, PIK Securities held by the Paying
Agent for the payment of principal of or interest on the Securities and shall
notify the Trustee in writing of any default by the Issuer in making any such
payment within one Business Day thereof. 
If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund.  The Issuer at any time may require a Paying
Agent to pay all money and, if applicable, PIK Securities held by it to the
Trustee and to account for any funds disbursed by the Paying Agent.  Upon complying with this Section, the Paying
Agent shall have no further liability for the money and, if applicable, PIK
Securities delivered to the Trustee.


 


Any money and, if applicable, PIK Securities deposited
with any Paying Agent, or then held by the Issuer or a permitted Subsidiary in
trust for the payment of principal or interest on any Security and remaining
unclaimed for two years after such principal and interest has become due and
payable shall be paid to the Issuer at its request, or, if then held by the
Issuer or a permitted Subsidiary, shall be discharged from such trust; and the
Holders shall thereafter, as general unsecured creditors, look only to the
Issuer for payment thereof, and all liability of the Paying Agent with respect
to such money, and all liability of the Issuer or such permitted Subsidiary as
trustee thereof, shall thereupon cease.


 


SECTION 2.05. 
Holder Lists.  The Trustee
shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Holders.  If the Trustee is not the Registrar, the
Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Holders.


 


 SECTION 2.06.  Replacement Securities.  If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been
lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee
shall authenticate a replacement Security if the requirements of Section 8-405
of the Uniform Commercial Code are met, such that the Holder (i) notifies
the Issuer or the Trustee within a reasonable time after he has notice of such
loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (ii) makes such request to
the Issuer or the Trustee prior to the 


 


25

















 


Security being acquired
by a protected purchaser as defined in Section 8-303 of the Uniform
Commercial Code (a “protected purchaser”) and (iii) satisfies any
other reasonable requirements of the Trustee and the Issuer including evidence
of the destruction, loss or theft of the Security.  Such Holder shall furnish an indemnity bond
sufficient in the judgment of the Issuer and the Trustee to protect the Issuer,
the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss
that any of them may suffer if a Security is replaced.  The Issuer and the Trustee may charge the
Holder for their expenses in replacing a Security including the payment of a
sum sufficient to cover any tax or other governmental charge that may be
required.  In the event any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about
to become due and payable, the Issuer in its discretion may pay such Security
instead of issuing a new Security in replacement thereof.


 


Every replacement Security is an additional obligation
of the Issuer.


 


The provisions of this Section 2.06 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.


 


SECTION 2.07. 
Outstanding Securities. 
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.  Subject to Section 13.06, a Security
does not cease to be outstanding because the Issuer or an Affiliate of the
Issuer holds the Security.


 


If a Security is replaced pursuant to Section 2.06,
it ceases to be outstanding unless the Trustee and the Issuer receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser.


 


If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date, repurchase date or
maturity date money sufficient to pay all principal and interest payable on
that date with respect to the Securities (or portions thereof) to be redeemed
or repurchased or maturing, as the case may be, and the Paying Agent is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to
accrue.


 


SECTION 2.08. 
Temporary Securities. 
Until Certificated Securities and Global Securities are ready for
delivery, the Issuer may prepare and the Trustee shall authenticate temporary
Securities.  Temporary Securities shall
be substantially in the form of Certificated Securities but may have variations
that the Issuer considers appropriate for temporary Securities.  Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate Certificated Securities or Global
Securities, as the case may be, and deliver them in exchange for temporary
Securities upon surrender of such temporary Securities at the office or agency
of the Issuer, without charge to the Holder.


 


SECTION 2.09. 
Cancellation.  The Issuer
at any time may deliver Securities to the Trustee for cancellation.  The Registrar and the Paying Agent shall
forward to the Trustee any 


 


26

















 


Securities surrendered to
them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver canceled Securities to the Issuer in accordance with
the Trustee’s customary procedures.  The
Issuer shall not issue new Securities to replace Securities that have been
redeemed, paid or delivered to the Trustee for cancellation.  The Trustee shall not authenticate Securities
in place of canceled Securities other than pursuant to the terms of this
Indenture.


 


SECTION 2.10. 
CUSIP or ISIN Numbers.  The
Issuer in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then
generally in use) and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers
in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such 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 Issuer shall promptly notify the Trustee
of any change in “CUSIP” or “ISIN” numbers.


 


SECTION 2.11. 
Registration, Transfer and
Exchange.


 


(a)           The Securities shall be issued in
registered form only, without coupons, and the Issuer shall cause the Trustee
to maintain a register (the “Register”) of the Securities, for
registering the record ownership of the Securities by the Holders and transfers
and exchanges of the Securities.


 


(b)           (1)           Each Global Security shall be registered
in the name of the Depositary or its nominee and, so long as DTC is serving as
the Depositary thereof, shall bear the DTC Legend.


 


(2)           Each Global Security shall be delivered
to the Trustee as custodian for the Depositary. 
Transfers of a Global Security (but not a beneficial interest therein)
shall be limited to transfers thereof in whole, but not in part, to the
Depositary, its successors or their respective nominees, except (i) as set
forth in Section 2.11(b)(4) and (ii) transfers of portions
thereof in the form of Certificated Securities may be made upon request of an
Agent Member (for itself or on behalf of a beneficial owner) by written notice
given to the Trustee by or on behalf of the Depositary in accordance with
customary procedures of the Depositary and in compliance with this Section.


 


(3)           Agent Members shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depositary, and the Depositary may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner and Holder of such
Global Security for all purposes whatsoever. 
Notwithstanding the foregoing, the Depositary or its nominee may grant
proxies and otherwise authorize any Person (including any Agent Member and any
Person that holds a beneficial interest in a Global Security through an Agent
Member) to take any action which a Holder is entitled to take under this Indenture
or the Securities, and nothing herein shall impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.


 


27














 


(4)                                  If
(x) the Depositary notifies the Issuer that it is unwilling or unable to
continue as Depositary for a Global Security and a successor depositary is not
appointed by the Issuer within 90 days of the notice or (y) an Event of
Default has occurred and is continuing and the Trustee has received a request
from the Depositary, the Trustee shall promptly exchange each beneficial
interest in the Global Security for one or more Certificated Securities in
authorized denominations having an equal aggregate principal amount registered
in the name of the owner of such beneficial interest, as identified to the
Trustee by the Depositary, and thereupon the Global Security shall be deemed
canceled.


 


(c)                                  Each
Certificated Security shall be registered in the name of the Holder thereof or
its nominee.


 


(d)                                 A
Holder may transfer a Security (or a beneficial interest therein) to another
Person or exchange a Security (or a beneficial interest therein) for another
Security or Securities of any authorized denomination by presenting to the
Trustee a written request therefor stating the name of the proposed transferee
or requesting such an exchange.  The
Trustee shall promptly register any transfer or exchange that meets the
requirements of this Section by noting the same in the Register maintained
by the Trustee for such purpose; provided that


 


(1)                                  no
transfer or exchange shall be effective until it is registered in such
Register; and


 


(2)                                  the
Trustee shall not be required (i) to issue, register the transfer of or
exchange any Security for a period of 15 days before a selection of Securities
to be redeemed or to be purchased pursuant to a Repurchase Offer, (ii) to
register the transfer of or exchange any Security so selected for redemption or
purchase in whole or in part, except, in the case of a partial redemption or
purchase, that portion of any Security not being redeemed or purchased, or (iii) if
a redemption or a purchase pursuant to a Repurchase Offer is to occur after a
regular record date but on or before the corresponding interest payment date,
to register the transfer of or exchange any Security on or after the regular
record date and before the date of redemption or purchase.  Prior to the registration of any transfer,
the Issuer, the Trustee and their agents shall treat the Person in whose name
the Security is registered as the owner and Holder thereof for all purposes
(whether or not the Security is overdue), and shall not be affected by notice
to the contrary.


 


From time to time the
Issuer shall execute and the Trustee shall authenticate additional Securities
as necessary in order to permit the registration of a transfer or exchange in
accordance with this Section.


 


No service charge shall
be imposed in connection with any transfer or exchange of any Security, but the
Issuer and the Trustee/Registrar may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than a transfer tax or other similar governmental charge
payable upon exchange pursuant to subsection (b)(4)).


 


28

















 


(e)                                  (1)                                  Global
Security to Global Security.  If a
beneficial interest in a Global Security is transferred or exchanged for a
beneficial interest in another Global Security, the Trustee shall (x) record
a decrease in the principal amount of the Global Security being transferred or
exchanged equal to the principal amount of such transfer or exchange and (y) record
a like increase in the principal amount of the other Global Security.  Any beneficial interest in one Global
Security that is transferred to a Person who takes delivery in the form of an
interest in another Global Security, or exchanged for an interest in another
Global Security, shall, upon transfer or exchange, cease to be an interest in
such Global Security and become an interest in the other Global Security and,
accordingly, shall thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial interests
in such other Global Security for as long as it remains such an interest.


 


(2)                                  Global
Security to Certificated Security. 
If a beneficial interest in a Global Security is transferred or
exchanged for a Certificated Security, the Trustee shall (x) record a
decrease in the principal amount of such Global Security equal to the principal
amount of such transfer or exchange and (y) deliver one or more new
Certificated Securities in authorized denominations having an equal aggregate
principal amount to the transferee (in the case of a transfer) or the owner of
such beneficial interest (in the case of an exchange), registered in the name
of such transferee or owner, as applicable.


 


(3)                                  Certificated
Security to Global Security.  If a
Certificated Security is transferred or exchanged for a beneficial interest in
a Global Security, the Trustee shall (x) cancel such Certificated
Security, (y) record an increase in the principal amount of such Global
Security equal to the principal amount of such transfer or exchange and (z) in
the event that such transfer or exchange involves less than the entire
principal amount of the canceled Certificated Security, deliver to the Holder
thereof one or more new Certificated Securities in authorized denominations
having an aggregate principal amount equal to the untransferred or unexchanged
portion of the canceled Certificated Security, registered in the name of the
Holder thereof.


 


(4)                                  Certificated
Security to Certificated Security. 
If a Certificated Security is transferred or exchanged for another
Certificated Security, the Trustee shall (x) cancel the Certificated
Security being transferred or exchanged, (y) deliver one or more new
Certificated Securities in authorized denominations having an aggregate
principal amount equal to the principal amount of such transfer or exchange to
the transferee (in the case of a transfer) or the Holder of the canceled
Certificated Security (in the case of an exchange), registered in the name of
such transferee or Holder, as applicable, and (z) if such transfer or exchange
involves less than the entire principal amount of the canceled Certificated
Security, deliver to the Holder thereof one or more Certificated Securities in
authorized denominations having an aggregate principal amount equal to the
untransferred or unexchanged portion of the canceled Certificated Security,
registered in the name of the Holder thereof.


 


SECTION 2.12.  Defaulted Interest.  If the Issuer defaults in a payment of
interest on the Securities, the Issuer shall pay the defaulted interest (plus
interest on such defaulted interest to 


 


29

















 


the extent lawful) in any
lawful manner.  The Issuer may pay the
defaulted interest to the persons who are Holders on a subsequent special
record date.  The Issuer shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.


 


The Issuer may make
payment of any defaulted interest in any other lawful manner not inconsistent
with the requirements (if applicable) 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 Issuer to the Trustee of the proposed
payment pursuant to this Section 2.12, such manner of payment shall be
deemed practicable by the Trustee.


 


SECTION 2.13.  Issuance of Additional Securities.  The Issuer may, from time to time prior to December 16,
2008, issue Additional Securities under this Indenture solely in exchange for,
or for the purpose of retiring or proving cash proceeds to be applied to
retire, outstanding 2003 Subordinated Debentures; provided that the Issuer may
not issue more than $5,000,000 in aggregate principal amount of Additional
Securities for cash proceeds.


 


ARTICLE III


 


REDEMPTION


 


SECTION 3.01.  Notices to Trustee.  If the Issuer elects to redeem Securities
pursuant to Section 3.07, it shall notify the Trustee in writing of the
redemption date, the principal amount of Securities to be redeemed and the Section of
this Indenture pursuant to which the redemption shall occur.


 


The Issuer shall give
each notice to the Trustee provided for in this Section at least
60 days before the redemption date unless the Trustee consents to a
shorter period.  Such notice shall be
accompanied by an Officers’ Certificate and an Opinion of Counsel from the
Issuer to the effect that such redemption shall comply with the conditions
herein.  If fewer than all the Securities
are to be redeemed, the record date relating to such redemption shall be
selected by the Issuer and given to the Trustee, which record date shall be not
fewer than 15 days after the date of notice to the Trustee, unless the
Trustee otherwise agrees.  Any such
notice may be canceled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.


 


SECTION 3.02.  Selection.  If less than all of the Securities are to be
redeemed at any time, selection of Securities for redemption shall be made by
the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities are listed, or, if the
Securities are not so listed, on a pro rata basis (among the
Initial Securities and any Additional Securities, as one class), by lot or by
such method as the Trustee shall deem appropriate; provided that no
Securities of $1,000 or less shall be redeemed in part.  If any Security is to be redeemed in part
only, the notice of redemption that relates to such Security shall state the
portion of the principal amount thereof to be redeemed.  On and after the redemption date, unless the
Issuer defaults in payment of the redemption price, interest ceases to accrue
on Securities or portions of them called for redemption.


 


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SECTION 3.03.  Notice.  Notices of redemption shall be mailed by first
class mail at least 30 but not more than 60 days before the redemption date to
each Holder of Securities to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge of this Indenture. 
Notices of redemption may not be conditional.  The Trustee shall notify the Issuer promptly
of the Securities or portions of Securities to be redeemed.


 


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


 


(1)                                  the
redemption date;


 


(2)                                  the
redemption price;


 


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


 


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


 


(5)                                  if
fewer than all the outstanding Securities are to be redeemed, the certificate
numbers and principal amounts of the particular Securities to be redeemed;


 


(6)                                  that,
unless the Issuer defaults in making such redemption payment or the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture, interest on Securities (or portion thereof) called for redemption
ceases to accrue on and after the redemption date;


 


(7)                                  the
Section hereof pursuant to which the Securities called for redemption are
being redeemed;


 


(8)                                  the
CUSIP number, if any, printed on the Securities being redeemed; and


 


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


 


At the Issuer’s request
(which may be revoked at any time in writing prior to the time at which the
Trustee shall have given such notice to the Holders), the Trustee shall give
the notice of redemption in the Issuer’s name and at the Issuer’s expense.  In such event, the Issuer shall provide the
Trustee with the information required by this Section at least 10 Business
Days prior to the date of the giving of such notice.


 


SECTION 3.04.  Effect of Notice of Redemption.  Once notice of redemption is mailed,
Securities called for redemption become due and payable on the redemption date
and at the redemption price stated in the notice.  Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price stated in the notice, plus
accrued interest to the redemption date; provided that if the redemption
date is after a regular record date and on or prior to the interest payment
date, the accrued interest shall be payable to the Holder of the redeemed
Securities registered on the relevant record date.  If mailed in the manner herein, the notice
shall be 


 


31

















 


conclusively presumed to
have been given whether or not the Holder receives such notice.  Failure to give notice or any defect in the
notice to any Holder shall not affect the validity of the notice to any other
Holder.


 


SECTION 3.05.  Deposit of Redemption Price.  Prior to 10:00 a.m., New York City time,
on the redemption date, the Issuer shall deposit with the Paying Agent (or, if
the Issuer or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest on
all Securities to be redeemed on the redemption date other than Securities or
portions of Securities called for redemption that have been delivered by the
Issuer to the Trustee for cancellation. 
If the redemption date is on or after an interest record date and on or
before the related interest payment date, the accrued and unpaid interest, if
any, shall be paid to the Person in whose name a Security is registered at the
close of business on such record date.


 


SECTION 3.06.  Securities Redeemed in Part.  Upon surrender of a Security that is redeemed
in part, the Issuer shall execute and the Trustee shall authenticate for the
Holder (at the Issuer’s expense) a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.


 


SECTION 3.07. 
Optional Redemption.


 


The Securities shall be
subject to redemption at any time at the option of the Issuer, in whole or in
part, at a redemption price equal to the of principal amount plus accrued and
unpaid interest to the applicable redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the relevant
interest payment date).


 


SECTION 3.08.  No Sinking Fund.  There shall be no sinking fund for the
payment of principal on the Securities to the Holders.


 


SECTION 3.09.  Repurchase Offers.


 


(a)                                  If
the Issuer shall be required to commence an offer to all Holders to purchase
Securities (a “Repurchase Offer”) pursuant to Section 4.06, 4.07 or
4.09, the Issuer shall follow the procedures specified in this Section 3.09:


 


(i)                                     Within
30 days after (A) a Change of Control (unless (1) the Issuer is not
required to make such offer pursuant to Section 4.09(b) or (2) all
Securities have been called for redemption pursuant to Section 3.07, or (B) the
date on which the Issuer is required to make an Asset Sale Offer pursuant to Section 4.06
or an Event of Loss Offer pursuant to Section 4.07, the Issuer shall
commence a Repurchase Offer, which shall remain open for a period of at least
20 Business Days following its commencement (the “Offer Period”),
by sending a notice to the Trustee and each of the Holders, by first class
mail, which notice shall contain all instructions and materials necessary to
enable the Holders to tender Securities pursuant to such Repurchase Offer.  Such notice, which shall govern the terms of
the Repurchase Offer, shall describe the transaction or transactions that
constitute the Change of Control, Asset Sale requiring an Asset Sale Offer or
Event of Loss requiring an Event of Loss Offer, as the case may be, and shall
state:


 


32

















 


(A)                              that
the Repurchase Offer is being made pursuant to this Section 3.09 and Section 4.06,
4.07 or 4.09, as the case may be;


 


(B)                                the
principal amount of Securities required to be purchased pursuant to Section 4.06,
in case of an Asset Sale Offer, or Section 4.07 in the case of an Event of
Loss Offer, or that the Issuer is required to offer to purchase all of the
outstanding principal amount of Securities, in the case of a Change of Control
Offer (such amount, the “Offer Amount”), the purchase price and, that on
the date specified in such notice (the “Purchase Date”), which date
shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed, the Issuer shall repurchase an Offer Amount of
Securities validly tendered and not withdrawn pursuant to this Section 3.09
and Section 4.06, 4.07 or 4.09, as applicable;


 


(C)                                that
any Security not tendered or accepted for payment shall continue to accrue
interest;


 


(D)                               that,
unless the Issuer defaults in making such payment, Securities accepted for
payment pursuant to the Repurchase Offer shall cease to accrue interest after
the Purchase Date;


 


(E)                                 that
Holders electing to have a Security purchased pursuant to a Repurchase Offer
may elect to have all or any portion of such Security purchased;


 


(F)                                 that
Holders electing to have a Security purchased pursuant to any Repurchase Offer
shall be required to surrender the Security, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Security, or such other
customary documents of surrender and transfer as the Issuer may reasonably
request, duly completed, or transfer the Security by book-entry transfer, to
the Issuer, the Depositary, or the Paying Agent at the address specified in the
notice prior to the Purchase Date;


 


(G)                                that
Holders shall be entitled to withdraw their election if the Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the expiration of the Offer Period, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security the
Holder delivered for purchase and a statement that such Holder is withdrawing
its election to have such Security purchased;


 


(H)                               that,
in the case of an Asset Sale Offer or Event of Loss Offer, if the aggregate
principal amount of Securities surrendered by Holders thereof exceeds the Offer
Amount, the Trustee shall select the Securities to be purchased on a pro rata
basis (based upon the outstanding principal amount thereof), with such
adjustments as may be deemed appropriate by the Issuer so that only Securities
in denominations of $1,000, or integral multiples thereof, shall be purchased;


 


33

















 


(I)                                    that
Holders whose Securities are purchased only in part shall be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered (or transferred by book-entry transfer); and


 


(J)                                   the
CUSIP number, if any, printed on the Securities being repurchased and that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Securities.


 


(ii)                                  On
(or at the Issuer’s election, before) the Purchase Date, the Issuer shall, (A) to
the extent lawful, accept for payment, on a pro rata basis
to the extent necessary in the case of an Asset Sale Offer or Event of Loss
Offer, the Securities or portions thereof tendered pursuant to the Repurchase
Offer and not theretofore withdrawn, or if Securities aggregating less than the
Offer Amount have been tendered, or in the case of a Change of Control Offer
all Securities tendered, and shall deliver to the Trustee an Officers’
Certificate stating that such Securities or portions thereof were accepted for
payment by the Issuer in accordance with the terms of this Section 3.09, (B) deposit
with the Paying Agent an amount equal to the payment required in respect of all
Securities or portions thereof so tendered and (C) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officers’
Certificate stating the aggregate principal amount of Securities or portions
thereof being purchased by the Issuer. 
The Issuer, the Depositary or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the Change of
Control Payment or the payment due to each respective Holder in respect of the
Asset Sale Offer, as applicable, with respect to the Securities tendered by
such Holder and accepted by the Issuer for purchase, and the Issuer shall
promptly issue a new Security, and the Trustee, upon written request from the
Issuer, shall authenticate and mail or deliver such new Security to such
Holder, in a principal amount equal to any unpurchased portion of the
Securities so surrendered.  Any Security
not so accepted shall be promptly mailed or delivered by the Issuer to the
Holder thereof.  On the Purchase Date,
all Securities purchased by the Issuer shall be delivered to the Trustee for
cancellation.  All Securities or portions
thereof purchased pursuant to the Repurchase Offer shall be canceled by the
Trustee.  The Issuer shall publicly
announce the results of the Repurchase Offer on or as soon as practicable after
the Purchase Date, but in no case more than five Business Days thereafter.  For the purposes of the preceding sentence,
it shall be sufficient for the Issuer to publish the results of the Repurchase
Offer on its website on the world wide web.


 


If the Issuer complies
with Section 3.09(a)(ii), on and after the Purchase Date interest shall
cease to accrue on the Securities or the portions of Securities
repurchased.  If a Security is
repurchased on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Security was registered at the close of business
on such record date.  If any Security
called is not repurchased upon surrender because of the failure of the Issuer
to comply with Section 3.09(a)(ii), interest shall be paid on the unpaid
principal, from the Purchase Date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case
at the rate provided in the Securities and in Section 4.01.


 


34

















 


(b)                                 The
Issuer shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations to the extent such laws and
regulations are applicable in connection with the Repurchase Offer.  To the extent that the provisions of any
applicable securities laws or regulations conflict with this Section 3.09,
the Issuer shall comply with such securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 3.09 by
virtue thereof.


 


(c)                                  Once
notice of repurchase is mailed in accordance with this Section 3.09, all
Securities validly tendered and not withdrawn (or, in the case of an Asset Sale
Offer, if the Issuer is not required to repurchase all of such Securities then
the pro rata portion of such Securities that the Issuer may
be required to purchase pursuant to Section 4.06) become irrevocably due and
payable on the Purchase Date at the purchase price specified herein.  A notice of repurchase may not be
conditional.


 


(d)                                 Other
than as specifically provided in this Section 3.09 or Section 4.06,
4.07 or 4.09, as applicable, any purchase pursuant to this Section 3.09
shall be made pursuant to Sections 3.02 and 3.06.


 


ARTICLE IV


 


COVENANTS


 


SECTION 4.01.  Payment of Securities


 


(a)                                  The
Issuer shall promptly pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and in this
Indenture.  Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds by 11:00 a.m., New York City time, in accordance with this
Indenture available funds and, if applicable, PIK Securities sufficient to pay
all principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money and, if applicable, PIK
Securities to the Holders on that date pursuant to the terms of this Indenture.


 


(b)                                 The
Issuer shall pay interest on overdue principal at the rate and in the manner
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.


 


SECTION 4.02.  SEC and Other Reports


 


(a)                                  Whether
or not required by the Commission, so long as any Securities are outstanding,
the Issuer must furnish to the Holders of Securities (which may be satisfied by
posting on the Issuer’s website or filing with the Commission), within the time
periods specified in the Commission’s rules and regulations including any
extension periods available under such rules and regulations (and if not
required by the Commission, excluding any requirements and time periods
applicable to “accelerated filers” (as defined in Rule 12b-2 under the
Exchange Act)), and make available to securities analysts and potential
investors upon request and post on its website:


 


35

















 


(i)                                     all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K prepared in
accordance with GAAP if the Issuer were required to file such Forms, including
a “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the
annual financial statements by the Issuer’s certified independent accountants;
and


 


(ii)                                  all
current reports that would be required to be filed with the Commission on Form 8-K
if the Issuer were required to file such reports.


 


(b)                                 The
quarterly and annual financial information required by Section 4.02(a) shall
include a reasonably detailed presentation in the footnotes thereto, and in
Management’s Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Issuer
and the Guarantors separate from the financial condition and results of
operations of the non-Guarantor Subsidiaries of the Issuer.


 


(c)                                  In
addition, the Issuer shall, for so long as any Securities remain outstanding,
at any time it is not required to file the reports required by Section 4.02(a) with
the Commission, furnish to the Holders, upon their request, or any prospective
purchaser designated by any such Holder, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to
permit resales of Securities pursuant to Rule 144A under the Securities
Act.


 


The Issuer also shall
comply with the other provisions of TIA § 314(a).


 


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 Issuer’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


SECTION 4.03.  Incurrence of Debt and Issuance of Preferred
Stock


 


(a)                                  The
Issuer shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to
(collectively, “incur”) any Debt and the Issuer shall not permit any of its
Subsidiaries to issue any shares of Preferred Stock.


 


(b)                                 The
provisions of Section 4.03(a) shall not apply to any of the
following:


 


(1)                                  the
incurrence by the Issuer or any of its Subsidiaries of Debt (with Debt under
letters of credit (including any extended or renewed letters of credit) deemed
incurred on the initial issue date thereof) under Credit Facilities (including
Guarantees of such Debt by the Issuer or any of its Subsidiaries); provided
that the aggregate principal amount of such Debt outstanding as of the date of
such incurrence pursuant to this clause (1) without duplication (with
letters of credit being deemed to have a principal amount equal to the undrawn
face amount thereof), does not exceed an amount equal to the lesser of (x) (i) $160,000,000
less (ii) the aggregate amount of all Net Proceeds from 


 


36

















 


Asset Sales
applied in accordance with Section 4.06(b)(2)(i), and (y) (i) the
amount of the Borrowing Base calculated on such date plus (ii) $7,500,000;


 


(2)                                  Debt
represented by the Securities issued on the Issue Date and the Security
Guarantees (and PIK Securities or the accretion of any interest thereon);


 


(3)                                  Debt
represented by Additional Securities (and PIK Securities or the accretion of
any interest thereon), so long as the Issuer issues such Additional Securities
on or prior to December 16, 2008 for the purpose of retiring or providing
cash proceeds to be applied to retire 2003 Subordinated Debentures at a price
not exceeding $1,000 in principal amount of 2003 Subordinated Debentures for
each $1,030 in principal amount of Additional Securities issued;


 


(4)                                  Debt
(other than Debt described in any other clause of this Section 4.03(b))
existing on the Issue Date and set forth on Schedule A to this Indenture;


 


(5)                                  Capital
Leases other than Capital Leases of Real Estate provided that:


 


(i)                                     Liens
securing the same attach only to the assets acquired by the incurrence of such
Debt and proceeds thereof; and


 


(ii)                                  the
aggregate amount of such Debt (including any such Capital Leases outstanding on
the Issue Date) does not exceed $5,000,000 outstanding at any time;


 


(6)                                  the
incurrence of Debt evidencing a refunding, renewal, refinancing, replacement,
defeasance or extension of the Debt under clauses (2), (3) or (4); provided
that:


 


(i)                                     the
principal amount thereof is not increased,


 


(ii)                                  the
Liens, if any, securing such refunded, renewed or extended Debt do not attach
to any assets in addition to those assets, if any, securing the Debt to be
refunded, renewed, refinanced, replaced, defeased or extended or are otherwise
permitted by this Agreement to secure the Debt to be refunded, renewed or
extended,


 


(iii)                               no
Person that is not an obligor or guarantor of such Debt as of the date of
issuance thereof shall become an obligor or guarantor thereof except to the
extent such Person would be permitted by this Indenture to be such an obligor
or guarantor,


 


(iv)                              the
terms of such refunding, renewal, refinancing, replacement, defeasance or
extension are no less favorable in any material respect to the Issuer and its
Subsidiaries than the original Debt;


 


37














 


(v)           if the Debt being
refunded, renewed, refinanced or replaced was subordinated to the Securities,
such refinancing Debt is subordinated to the Securities to at least the same
extent; and


 


(vi)          the Debt evidencing a
refunding, renewal, refinancing, replacement or defeasance or extension is
scheduled to mature either (a) no earlier than the Debt being refunded,
refinanced, replaced, defeased or extended or (b) at least 91 days after
the maturity date of the Securities;


 


(7)           the incurrence by the
Issuer or any of its Subsidiaries of intercompany Debt owed or issued to and
held by the Issuer and any of its Subsidiaries;


 


(8)           the incurrence of any
Guarantee by the Issuer or any Subsidiary of Debt of the Issuer or a Subsidiary
that was permitted to be incurred by another provision of this Section and
any Debt arising upon such contingent obligations becoming absolute and
matured;


 


(9)           the incurrence by the
Issuer or any of its Subsidiaries of Debt under Hedging Agreements or Bank
Products; provided that (i) such Debt, when taken together with the amount
of all other such Debt incurred pursuant to this clause (9) and then
outstanding, does not exceed $20,000,000 in the aggregate and (ii) such
Debt under Hedging Agreements, when taken together with the amount of all other
such Debt incurred pursuant to this clause (9) under Hedging Agreements
and then outstanding, does not exceed $5,000,000;


 


(10)         Debt arising from rights
of indemnity or contribution with respect to payments under Credit Facilities,
this Indenture or documents related thereto;


 


(11)         Debt of the Issuer the
proceeds of which are applied solely for the purpose of paying benefits to
employees or former employees who are participants in non-qualified benefit
plans of the Issuer and its Subsidiaries which are supported by the COLI
Policies, provided that such Debt is secured solely by Liens which attach only
to the COLI Policies;


 


(12)         letters of credit,
surety, performance or appeal bonds, completion guarantees or similar
instruments issued in the ordinary course of business of the Issuer and its
Subsidiaries in connection with the supply, directly or indirectly, of modular
housing or other products to the United States government and related agencies
and instrumentalities thereof;


 


(13)         the incurrence by the
Issuer and its Subsidiaries of:


 


(i)            Capital Leases of
Equipment or Real Estate entered into in connection with Sale and Leaseback
Transactions; provided that Liens securing the same attach only to the
Equipment or Real Estate subject to the applicable Capital Lease;


 


38

















 


(ii)           mortgage Debt of the
Issuer or any Guarantor; provided that such mortgage Debt is secured solely by
Liens which attach only to property that does not constitute Collateral; and


 


(iii)          other Debt other than
Debt under Credit Facilities (including any such Debt Guaranteed by the Issuer
or any of its Subsidiaries);


 


in an aggregate principal
amount, including all Debt incurred to refund, defease, renew, refinance or
replace any Debt incurred pursuant to this clause (13), not to exceed
$11,250,000 at any time outstanding;


 


(14)         Debt that constitutes
Debt solely under clause (2) of the definition thereof so long as the same
remains secured by a Lien permitted under clause (4) or clause (5) of
the definition of “Permitted Liens”; and


 


(15)         Debt secured by Liens on life insurance policies listed on Schedule C
hereto in an aggregate amount not to exceed the cash surrender value of such
life insurance policies, to the extent such loans are permitted by the Existing
Credit Facilities; provided that such Debt shall be recourse only to such life
insurance policies and the cash surrender value thereof; for the avoidance of
doubt, such Debt shall be without recourse to the Issuer or any of its Subsidiaries
or Affiliates.


 


(c)           For
purposes of determining compliance with any U.S. dollar-denominated restrictions
on the incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt
denominated in a foreign currency shall be calculated based on the relevant
currency exchange rate in effect on the date such Debt was incurred, in the
case of term Debt, or first committed, in the case of revolving credit Debt;
provided that if such Debt is incurred to refinance other Debt denominated in a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Debt does not exceed the
principal amount of such Debt being refinanced. 
Notwithstanding any other provision in this Section, the maximum amount
of Debt that the Issuer or any Subsidiary may incur pursuant to this Section shall
not be deemed to be exceeded as a result of fluctuations in the exchange rates
of currencies.  The principal amount of
any Debt incurred to refinance other Debt, if incurred in a different currency
from the Debt being refinanced, shall be calculated based on the currency exchange
rate applicable to the currencies in which such Refinancing Debt is denominated
that is in effect on the date of such refinancing.  For purposes of determining compliance with this
Section 4.03:


 


(1)           the outstanding
principal amount of any particular Debt shall be counted only once such that
(without limitation) any obligation arising under any guarantee, Lien, letter
of credit or similar instrument supporting such Debt shall be disregarded; and


 


(2)           accrual of interest or
dividends (including the issuance of “pay in kind” securities or similar
instruments in respect of such accrued interest or dividends), the


 


39

















 


accretion of accreted
value or liquidation preference and the extension of maturity shall not be
deemed to be an incurrence of Debt or issuance of Preferred Stock.


 


SECTION 4.04. Restricted
Payments


 


(a)           The
Issuer shall not, and shall not permit any of its Subsidiaries:


 


(1)           directly or indirectly
declare or make, or incur any liability to make, any Distribution, except (A) Distributions
to the Issuer by any of its Subsidiaries, or Distributions by any Subsidiary of
the Issuer to the Issuer or another Subsidiary of the Issuer which is its
parent or other equity holder; (B) subject to the subordination provisions
contained in the 1998 Subordinated Debentures and the 2003 Subordinated
Debentures, the Issuer may make regularly scheduled interest payments
(including additional amounts in respect of the 2003 Subordinated Debentures
and any common stock of the Issuer issued upon conversion thereof) in respect
of the 2003 Subordinated Debentures and up to $25,000 of mandatory prepayments
in respect of fractional shares in respect of the 1998 Subordinated Debentures
and the 2003 Subordinated Debentures; or (C) on or before December 16,
2008, the Issuer may redeem, prepay, repurchase or otherwise acquire  the 2003 Subordinated Debentures (and pay
accrued interest and the contemplated fees thereon) in exchange for Securities
(including Additional Securities), or from cash proceeds applied from the sale
of up to $5,000,000 in aggregate principal amount of Securities (including
Additional Securities);


 


(2)           make any Restricted
Investment (other than Hedge Agreements with any holder of Debt under Credit
Facilities), except that (i) the Issuer or any Guarantor may make
contributions, loans or advances to the Issuer or any Guarantor; (ii) any
Excluded Subsidiary may make contributions, loans or advances to any other
Excluded Subsidiary; (iii) the Issuer may make capital contributions,
loans or advances to Gibraltar Insurance Issuer, provided that the aggregate
amount of all such capital contributions, loans and advances does not exceed
$15,000,000 in the aggregate.


 


(b)           The amount of all
Distributions or Restricted Investments (other than cash) shall be the fair
market value on the date of such Distribution or Restricted Investment of the
asset(s) or securities proposed to be transferred or issued by the Issuer
or such Subsidiary, as the case may be, pursuant to such Distribution or
Restricted Investment.  The fair market
value of any non-cash Distribution or Restricted Investment shall be determined
in good faith by the Board of Directors of the Issuer.  If the Issuer or any Subsidiary of the Issuer
sells or otherwise disposes of any Capital Stock of any direct or indirect
Guarantor such that, after giving effect to any such sale or disposition, the
Issuer no longer owns, directly or indirectly, greater than 50% of the
outstanding Capital Stock of such Guarantor, the Issuer shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the
fair market value of the Capital Stock of such Guarantor not sold or disposed
of.


 


40

















 


SECTION 4.05. Limitations
on Dividends and Other Payment Restrictions Affecting Subsidiaries


 


(a)           The Issuer shall not,
and shall not permit any of its Subsidiaries to create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to:


 


(1)           (i) pay dividends
or make any other distributions to the Issuer or any of its Subsidiaries (A) on
its Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits, or (ii) pay any Debt owed
to the Issuer or any of its Subsidiaries;


 


(2)           make loans or advances
to the Issuer or any of its Subsidiaries; or


 


(3)           transfer any of its
properties or assets to the Issuer or any of its Subsidiaries.


 


(b)           However, the preceding
restrictions shall not apply to encumbrances or restrictions:


 


(1)           under contracts and
other instruments in effect on the Issue Date, including the Existing Credit
Facilities and other Debt in existence on the Issue Date and the related
documentation;


 


(2)           under this Indenture,
the Securities (including PIK Securities and Additional Securities), the
Collateral Documents and the Intercreditor Agreement;


 


(3)           under any agreement or
other instrument of a Person acquired by the Issuer or any of its Subsidiaries
as in effect at the time of such acquisition (but not incurred as consideration
for, created in connection with or in contemplation of such acquisition), which
encumbrance or restriction shall not extend to any assets or property of the
Issuer or any of its Subsidiaries, other than assets or property so acquired;


 


(4)           existing under or by
reason of purchase money obligations (including Capital Lease Obligations) for
property acquired in the ordinary course of business that impose restrictions
of the nature described in clause (3) above on the property so acquired;


 


(5)           in the case of clause (3) above,
(i) that restrict in a customary manner the subletting, assignment, or
transfer of any property or asset that is subject to a lease, license or
similar contract, (ii) by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any property or assets
of the Issuer or any Subsidiary not otherwise prohibited by this Indenture, (iii) contained
in security agreements or mortgages securing Debt permitted under this
Indenture to the extent such encumbrances or restrictions restrict the transfer
of the property subject to such security agreements or mortgages or (iv) any
Lien on property or assets of the Issuer or any Subsidiary not otherwise
prohibited by this Indenture;


 


(6)           existing under or by
reason of contracts for the sale of assets, including any restriction with
respect to a Subsidiary imposed pursuant to an agreement entered


 


41

















 


into for the sale
or disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary pending the closing of such sale or disposition;


 


(7)           on cash or other
deposits or net worth imposed by leases, credit agreements, customer contracts
or other agreements entered into in the ordinary course of business;


 


(8)           in customary form under
joint venture agreements and other similar agreements relating to joint ventures
that are not Guarantors and in any event entered into in the ordinary course of
business;


 


(9)           any encumbrances or
restrictions created with respect to Debt of Subsidiaries permitted to be
incurred or issued subsequent to the Issue Date pursuant to Section 4.03;


 


(10)         any encumbrances or
restrictions required by any governmental, local or regulatory authority having
jurisdiction over the Issuer or any of its Subsidiaries or any of their
businesses; or


 


(11)         under any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (a) through (d) above, provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings, taken as a whole, are, in the good
faith judgment of the Issuer, not materially more restrictive with respect to
such encumbrances or restrictions than those contained in the Debt, contracts,
instruments or obligations prior to the incurrence of such Debt or such
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.


 


SECTION 4.06. Asset
Sales


 


(a)           The
Issuer shall not, and shall not permit any of its Subsidiaries to, consummate
an Asset Sale unless:


 


(1)           the Issuer or the
applicable Subsidiary receives consideration at the time of such Asset Sale at
least equal to the fair market value of the assets that are sold or otherwise
disposed of, as determined in good faith by the Issuer’s Board of Directors;


 


(2)           at least 75% of the
consideration received by the Issuer or the applicable Subsidiary from the
Asset Sale is in the form of cash or Cash Equivalents, and is received at the
time of the Asset Sale. For the purposes of this provision, the amount of any
liabilities shown on the most recent applicable balance sheet of the Issuer or
the applicable Subsidiary, other than contingent liabilities or liabilities
that are by their terms subordinated to the Securities or any Security
Guarantee, as applicable, that are assumed by the transferee of any such assets
pursuant to a customary assignment and assumption agreement that releases the
Issuer or the applicable Subsidiary from further liability, shall be deemed to be
cash for purposes of this provision;


 


42

















 


(3)           if such Asset Sale
involves Collateral, it complies with the applicable provisions of this
Indenture, the Collateral Documents and, if applicable, the Intercreditor
Agreement; and


 


(4)           if such Asset Sale
involves the disposition of First Lien Collateral, 100% of the Net Proceeds
therefor shall be received in the form of cash and Cash Equivalents and shall
be paid from the purchaser of such First Lien Collateral directly to the
Collateral Agent for deposit into the Collateral Account and applied to make an
Asset Sale Offer in accordance with Section 4.06(c).


 


(b)           Upon
the consummation of an Asset Sale, the Issuer shall apply, or cause the
applicable Subsidiary to apply, an amount equal to the Net Proceeds relating to
the Asset Sale:


 


(1)           within 30 days of
having received the Net Proceeds in the case of Net Proceeds from an Asset Sale
to the extent involving First Lien Collateral, to make an Asset Sale Offer in
accordance with this Section 4.06;


 


(2)           within 30 days of
having received the Net Proceeds in the case of Net Proceeds from an Asset Sale
to the extent involving Second Lien Collateral:


 


(i)            to repay Debt to the
extent outstanding and otherwise apply such Net Proceeds as permitted under
Credit Facilities (and, absent a Default or an Event of Default, with respect
to any remaining Net Proceeds, the Issuer and the Subsidiaries may use such
remaining Net Proceeds for any purpose not otherwise prohibited by this Indenture);


 


(ii)           to make a Property
Substitution, provided that the requirements under Credit Facilities, this
Indenture, the Collateral Documents and, if applicable, the Intercreditor
Agreement are satisfied with respect to such Property Substitution and the
applicable Substituted Property; or


 


(iii)          from and after the date
upon which the Designated Senior Debt shall have been discharged or is repaid
in full in cash and all commitments thereunder have been terminated, to make an
Asset Sale Offer in accordance with this Section 4.06; and


 


(3)           within 120 days of
having received the Net Proceeds in the case of Net Proceeds from an Asset Sale
to the extent not involving Collateral:


 


(i)            to repay Debt to the
extent outstanding and otherwise apply such Net Proceeds as permitted under
Credit Facilities (and, absent a Default or an Event of Default, with respect
to any remaining Net Proceeds, the Issuer and the Subsidiaries may use such
remaining Net Proceeds for any purpose not otherwise prohibited by this Indenture);


 


(ii)           to make expenditures or
to acquire properties or assets that will be used by, or will be useful to, the
Issuer or any Guarantor in a Permitted Business; or


 


43

















 


(iii)          from and after the date
upon which the Designated Senior Debt shall have been discharged or is repaid
in full in cash and all commitments thereunder have been terminated, to make an
Asset Sale Offer in accordance with this Section 4.06.


 


(c)           On
the 30th day after an Asset Sale in the case of Clauses (1) or (2) above
or the 121st day after an Asset Sale in the case of clause (3) above, or
any earlier date, if any, on which the Board of Directors of the Issuer or of
the applicable Subsidiary determines not to apply the Net Proceeds of the Asset
Sale in accordance with Section 4.06(b) (other than to make an Asset
Sale Offer), when the aggregate amount of Net Proceeds of such Asset Sale then
requiring an Asset Sale Offer as set forth above and not otherwise applied in
accordance with Section 4.06(b) (together with the Net Proceeds of
prior Asset Sales then requiring an Asset Sale Offer as set forth above and not
otherwise applied in accordance with Section 4.06(b) but for which an
Asset Sale Offer was not yet required by this sentence) exceeds $2,500,000, the
Issuer shall within 30 days thereof make an offer to all Holders of Securities (an
“Asset Sale Offer”) to purchase the maximum principal amount of
Securities that may be purchased out of such Net Proceeds of the Asset Sale at
an offer price in cash in an amount equal to 100% of their principal amount
plus accrued and unpaid interest to the date of purchase subject to the right
of holders of record on a record date to receive interest on the relevant
interest payment date in accordance with the procedures set forth herein.  For the avoidance of doubt, until the date
upon which the Designated Senior Debt shall have been discharged or is repaid
in full in cash and all commitments thereunder have been terminated, no Asset
Sale Offer shall be required to be made in connection with the Net Proceeds of
any Asset Sales other than Asset Sales of First Lien Collateral.


 


(d)           If any Net Proceeds of
the Asset Sale remain after completion of an Asset Sale Offer, the Issuer and
the Subsidiaries may use any remaining Net Proceeds of the Asset Sale for any
purpose not otherwise prohibited by this Indenture. If the aggregate principal
amount of Securities surrendered by Holders thereof exceeds the pro rata
portion of such Net Proceeds of the Asset Sale to be used to purchase
Securities, the Trustee shall select the Securities to be purchased in
accordance with the applicable procedures of the Trustee and the applicable
depository.


 


(e)           Pending the use of any
Net Proceeds as set forth above, Net Proceeds of First Lien Collateral shall be
deposited in the Collateral Account, and the Issuer and its Subsidiaries shall
be permitted to apply Net Proceeds to the extent not involving First Lien
Collateral to prepay any revolving loans under any Designated Senior Debt.


 


SECTION 4.07. Event
of Loss


 


(a)           Upon
the occurrence of an Event of Loss, the Issuer or the applicable Subsidiary
shall apply the Net Loss Proceeds from such Event of Loss:


 


(1)           to the rebuilding,
repair, replacement or construction of improvements to the affected property
(the “Subject Property”); provided, however, that the Issuer delivers to
the Trustee within 90 days of such Event of Loss: (i) a written opinion
from a reputable contractor that the Subject Property can be rebuilt, repaired,
replaced or


 


44

















 


constructed in,
and operated in, substantially the same condition as it existed prior to the
Event of Loss within 360 days of the Event of Loss; and (2) an Officers’
Certificate certifying that the Issuer or such Subsidiary has available from
Net Loss Proceeds and/or other sources funds sufficient to complete such
building, repair, replacement or construction;


 


(2)           in the case of Net Loss
Proceeds to the extent not involving First Lien Collateral, to repay Debt or
otherwise apply such Net Proceeds as permitted under Credit Facilities;


 


(3)           to make expenditures or
to acquire properties or assets that will be used or useful in a Permitted
Business provided that the properties or assets so acquired shall become First
Lien Collateral or Second Lien Collateral, as applicable; or


 


(4)           in the case of Net Loss
Proceeds to extent involving First Lien Collateral, the Net Loss Proceeds shall
be paid directly to the Collateral Agent for deposit in the Collateral Account
and applied to make an Event of Loss Offer in accordance with this Section 4.07.


 


(b)           On the 91st day after
an Event of Loss relating to First Lien Collateral or any earlier date, if any,
on which the Board of Directors of the Issuer or of the applicable Subsidiary
determines not to apply the Net Loss Proceeds in accordance with clauses (1) or
(3) of Section 4.07(a), when the aggregate amount of Net Loss
Proceeds then requiring an Event of Loss Offer set forth above and not
otherwise applied in accordance with Section 4.07(a) (together with
the Net Loss Proceeds of prior Events of Loss then requiring an Event of Loss
Offer set forth above and not otherwise applied in accordance with Section 4.07(a) but
for which an Event of Loss Offer was not yet required by this sentence) exceeds
$2,500,000, the Issuer shall within 30 days thereof make an offer to all
Holders of Securities (an “Event of Loss Offer”) to purchase the maximum
principal amount of Securities that may be purchased out of such Loss Proceeds
at an offer price in cash in an amount equal to 100% of their principal amount
plus accrued and unpaid interest to the date of purchase subject to the right
of holders of record on a record date to receive interest on the relevant
interest payment date in accordance with the procedures set forth herein.  For the avoidance of doubt, no Event of Loss
Offer shall be required to be made in connection with the Net Loss Proceeds of
any assets other than First Lien Collateral.


 


(c)           With respect to any
Event of Loss pursuant to clause (iv) of the definition of “Event of Loss”
that has a fair market value (or replacement cost, if greater) in excess of
$1,000,000, the Issuer shall, or shall cause the applicable Subsidiary, as
applicable, to use reasonable best efforts to receive consideration (i) at
least equal to the fair market value (evidenced by a resolution of the Board of
Directors set forth in an Officers’ Certificate delivered to the Trustee) of
the assets subject to the Event of Loss and (ii) at least 85% of which is in
the form of cash or Cash Equivalents.


 


(d)           If any Loss Proceeds
remain after completion of an Event of Loss Offer, the Issuer and the
Subsidiaries may use any remaining Loss Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Securities
surrendered by Holders thereof exceeds the pro rata portion of such Loss
Proceeds to be used to purchase


 


45

















 


Securities, the
Trustee shall select the Securities to be purchased in accordance with the
applicable procedures of the Trustee and the applicable depository.


 


(e)           Pending the use of any
Net Loss Proceeds as set forth above, the Issuer and its Subsidiaries shall be
permitted to apply Net Loss Proceeds to the extent not involving First Lien
Collateral to prepay any revolving loans under any Designated Senior Debt and
Net Loss Proceeds of First Lien Collateral shall be deposited in the Collateral
Account.


 


SECTION 4.08. Transactions
with Affiliates


 


(a)           The Issuer shall not,
and shall not permit any of its Subsidiaries to sell, transfer, distribute, or
pay any money or property, including, but not limited to, any fees or expenses
of any nature (including, but not limited to, any fees or expenses for
management services), to any Affiliate, or lend or advance money or property to
any Affiliate, or except as otherwise permitted in this Indenture invest in (by
capital contribution or otherwise) or purchase or repurchase any Capital Stock
or indebtedness, or any property, of any Affiliate, or except as otherwise
permitted in this Indenture, become liable on any Guarantee of the
indebtedness, dividends, or other obligations of any Affiliate (each of the
foregoing, an “Affiliate Transaction”), unless:


 


(1)           such Affiliate Transaction
is on terms that, taken as a whole, are not materially less favorable to the
Issuer or the relevant Subsidiary than those that would have been obtained in a
comparable arms-length at the time of such transaction by the Issuer or such
Subsidiary with an unrelated Person; and


 


(2)           the Issuer delivers to
the Trustee:


 


(i)            with respect to any
Affiliate Transaction entered into after the Issue Date involving aggregate
consideration in excess of $5,000,000, a resolution of the Board of Directors
set forth in an Officers’ Certificate certifying that such Affiliate
Transaction complies with clause (1) above and that such Affiliate
Transaction has been approved by the Board of Directors; and


 


(ii)           with respect to any
Affiliate Transaction involving aggregate consideration in excess of
$10,000,000, an opinion as to the fairness to the Issuer or such Subsidiary of
such Affiliate Transaction from a financial point of view issued by an
investment banking, appraisal or accounting firm of national standing.


 


(b)           Notwithstanding
Section 4.08(a), none of the following shall be prohibited by this Section 4.08
(or be deemed to be Affiliate Transactions):


 


(1)           any employment
agreements, non-competition agreements, stock purchase or option agreements,
collective bargaining agreements, employee benefit plans or arrangements
(including vacation plans, health and life insurance plans, deferred
compensation plans, stock loan programs, long term incentive plans, directors’
and officers’ indemnification agreements and retirement, savings or similar
plans), related trust agreements or any similar arrangements, in each case in
respect of employees, officers or directors and entered into in the ordinary
course of business, any payments or


 


46

















 


other transactions
contemplated by any of the foregoing and any other payments of compensation to
employees, officers or directors in the ordinary course of business;


 


(2)           transactions between or
among (i) the Issuer and/or the Guarantors, (ii) while no Event of
Default has occurred and is continuing, the Issuer and/or the Guarantors with
one or more of the Subsidiaries of the Issuer that are not Guarantors or any
other Affiliate in the ordinary course of business consistent with past
practices or (iii) the Issuer and/or one or more of its Subsidiaries and
any joint venture; provided in the case of clause (iii), no Affiliate of the
Issuer (other than a Subsidiary) owns any of the Capital Stock of any such
joint venture, provided that in the case of transactions with Affiliates other
than Excluded Subsidiaries, in amounts and upon terms that have been provided
to the Trustee and are no less favorable to the Issuer and the Guarantors than
would be obtained in a comparable arms-length transaction with a third party
that is not an Affiliate;


 


(3)           Permitted Investments
and Restricted Payments that are permitted by the provisions of this Indenture;


 


(4)           the issuance of Capital
Stock (other than Disqualified Stock) of or capital contribution to the Issuer
to the extent permitted by this Indenture;


 


(5)           any agreement as in
effect on the Issue Date (including any tax sharing agreements) or any
amendment thereto (so long as any such amendment is not disadvantageous to the
Holders in any material respect); and


 


(6)           transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business, consistent with past practice,
and otherwise in compliance with the terms of this Indenture which are fair to
the Issuer or its Subsidiaries, or are on terms at least as favorable as might
reasonably have been obtained at such time in a comparable arms-length
transaction with a Person that is not an Affiliate, in each case in the
reasonable determination of the Board of Directors of the Issuer or the senior
management thereof.


 


SECTION 4.09. Change
of Control


 


(a)           Upon the
occurrence of a Change of Control, unless all Securities have been called for
redemption pursuant to Section 3.07, each Holder of Securities shall have
the right to require the Issuer to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such Holder’s Securities pursuant to an
offer on the terms set forth in this Indenture (a “Change of Control
Offer”). In the Change of Control Offer, the Issuer shall offer a payment in cash
equal to 100% of the aggregate principal amount thereof plus accrued and unpaid
interest to the date of purchase (the “Change of Control Payment”), subject
to the rights of holders on the relevant record date to receive interest due on
the relevant interest payment date.


 


(b)           The Issuer shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes and consummates a Change of Control Offer in a manner, at the times
and otherwise in compliance with the requirements set forth in this


 


47

















 


Indenture
applicable to a Change of Control Offer made by the Issuer and purchases all
Securities validly tendered and not withdrawn under the Change of Control
Offer.


 


SECTION 4.10. Compliance
Certificates; Recordings and Opinions


 


(a)           The Issuer shall
deliver to the Trustee within 120 days after the end of each fiscal year
of the Issuer an Officers’ Certificate stating that in the course of the
performance by the signers of their duties as officers of the Issuer they would
normally have knowledge of any Default and whether or not the signers know of
any Default that occurred during such period. 
If they do have such knowledge, the certificate shall describe the
Default, its status and what action the Issuer is taking or proposes to take
with respect thereto.  The Issuer also
shall comply with Section 314(a)(4) of the TIA.


 


(b)           The Issuer shall
furnish to the Collateral Agent and the Trustee (if the Trustee is not then the
Collateral Agent), on or before the time when the Issuer is required to provide
annual reports pursuant to Section 4.02 with respect to the preceding
fiscal year, an Opinion of Counsel:


 


(1)           stating substantially
that, in the opinion of such counsel, such action has been taken with respect
to the recordings, registrations, filings, re-recordings, re-registrations and
re-filings of this Indenture, the Collateral Documents and all financing
statements, continuation statements or other instruments of further assurance
as is necessary to maintain the Lien of this Indenture or any Collateral
Documents in the Collateral and reciting with respect to the security interests
in such Collateral the details of such action or referencing to prior Opinions
of Counsel in which such details are given; or


 


(2)           to the effect that, in
the opinion of such counsel, no such action is necessary to maintain such Lien
under this Indenture and the Collateral Documents;


 


and the Issuer shall otherwise
comply with the provisions of Section 314(b) of the TIA.


 


(c)           The Issuer shall
deliver to the Trustee, as soon as possible and in any event within five days
after any Senior Officer of the Issuer 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 Issuer
proposes to take with respect thereto.


 


SECTION 4.11. Liens


 


The Issuer shall not, and
shall not permit any of its Subsidiaries to, create, incur, assume, or permit
to exist any Lien on any property now owned or hereafter acquired by any of
them, except Permitted Liens.


 


SECTION 4.12. Additional
Security Guarantees


 


(a)           If the Issuer or any of
its Subsidiaries acquires or creates another Subsidiary (other than a Foreign
Subsidiary of the Issuer) after the Issue Date that becomes a borrower or


 


48

















 


guarantor under
Credit Facilities, or an existing Subsidiary that had not previously been a
borrower or a guarantor under the Credit Facilities becomes a borrower or a
guarantor thereunder, then such Subsidiary shall become a Guarantor and execute
a Security Guarantee in accordance with the provisions of this Indenture within
10 Business Days of the date on which it was acquired or created or became a
guarantor or borrower under the Credit Facilities.


 


(b)           Any Subsidiary that is
required to become a Guarantor shall do so by executing and delivering to the
Trustee a supplemental indenture substantially in the form of Exhibit C
hereto as provided in Section 9.01.


 


SECTION 4.13. Permitted
Businesses


 


The Issuer shall not and
shall not permit any of its Subsidiaries to, engage directly or indirectly, in
any line of business other than Permitted Businesses, except to such extent as
is not material to the Issuer and its Subsidiaries taken as a whole.


 


SECTION 4.14. Payments
for Consent


 


The Issuer shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, pay or
cause to be paid any consideration to or for the benefit of any Holder for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid or is paid to all Holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or amendment.


 


SECTION 4.15. Payment
of Taxes


 


The Issuer shall, and
shall cause each of its Subsidiaries to, (a) pay, or provide for the
payment, when due (subject to permitted extensions), of all material taxes,
fees, assessments and other governmental charges against it or upon its property,
income and franchises and make all required withholding and other tax deposits
and establish adequate reserves for the payment of all such items; and (b) pay
when due all Debt owed by it and all claims of materialmen, mechanics,
carriers, warehousemen, landlords, processors and other like Persons, and all
other indebtedness owed by it if failure to pay such Debt or such claims would
otherwise result in an Event of Default and perform and discharge in a timely
manner all other obligations undertaken by it; provided, however,  neither the Issuer nor any of its
Subsidiaries need pay any amount pursuant to clauses (a) or (b) above
(i) the payment of which it is contesting in good faith by appropriate
proceedings diligently pursued, and (ii) as to which the Issuer or its
Subsidiary, as the case may be, has established proper reserves to the extent
required under GAAP, or the nonpayment of which does not result in the
imposition of a Lien (other than a Permitted Lien).


 


SECTION 4.16. Limitation
on Sale and Leaseback Transactions


 


The Issuer shall not, and
shall not permit any of its Subsidiaries to, enter into any Sale and Leaseback
Transaction unless:


 


49














 


(1)                                  the
consideration received in such Sale and Leaseback Transaction is at least equal
to the fair market value of the property sold, as determined by a board
resolution of the Board of Directors of the Issuer or by an Officers’
Certificate,


 


(2)                                  prior
to and after giving effect to the Attributable Debt in respect of such Sale and
Leaseback Transaction, the Issuer and any such Subsidiary comply with Section 4.03;
and


 


(3)                                  at
or after such time, the Issuer and any such Subsidiary comply with Section 4.06.


 


SECTION 4.17. Legal
Existence and Good Standing


 


The Issuer shall, and
shall cause each Guarantor to, maintain its legal existence and its
qualification and good standing in all jurisdictions in which the failure to
maintain such existence or qualification or good standing would reasonably be
expected to have a material adverse effect, except, in each case, as permitted
otherwise under this Indenture.


 


SECTION 4.18. Compliance
with Laws


 


The Issuer shall, and
shall cause each of its Subsidiaries to, comply with all applicable statutes,
rules, regulations and orders of the United States, all states and
municipalities thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the foregoing, in respect
of the conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliance as would not have a
material adverse effect on the financial condition or results of operations of
the Issuer and its Subsidiaries taken as a whole.


 


SECTION 4.19. Amendments
to Existing Credit Facilities


 


The Issuer shall not
agree to any amendment, restatement or refinancing to or of the Existing Credit
Facilities (or any other agreement with the lenders under the Existing Credit
Facilities that has the effect of an amendment, restatement or refinancing)
after the Ninth Amendment Effective Date to the extent that the effect thereof
would be to increase any of the percentages or other amounts or limits
specifically set forth in the definition of Borrowing Base (or introduce new
categories of property as components of the Borrowing Base) in effect on the
Ninth Amendment Effective Date other than the introduction of up to 100% of
cash of the Issuer and any one or more of its Subsidiaries as a category in
such Borrowing Base in an amount not to exceed the aggregate undrawn face
amount of all outstanding letters of credit issued under the Existing Credit
Facilities.


 


ARTICLE V


 


MERGERS, CONSOLIDATION ETC.


 


SECTION 5.01. Merger,
Consolidation, or Sale of All or Substantially All Assets


 


50

















 


The Issuer shall not
consolidate or merge with or into (whether or not the Issuer is the surviving
corporation), or sell, assign, transfer, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another Person.


 


SECTION 5.02. Merger
or Consolidation of a Guarantor


 


(a)                                  No
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person (other than another
Guarantor) unless:


 


(1)                                  subject
to the provisions of Section 5.02(b), the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental Indenture in form and
substance reasonably satisfactory to the Trustee, under the Securities, the
Collateral Documents applicable to such Guarantor, the Intercreditor Agreement
and this Indenture; and


 


(2)                                  immediately
after giving effect to such transaction, no Default exists.


 


(b)                                 Notwithstanding
Section 5.02(a), any Guarantor may merge with an Affiliate incorporated
solely for the purpose of reincorporating such Guarantor in another jurisdiction
if the Guarantor or successor entity, as applicable, remains a Guarantor.


 


(c)                                  With
respect to each transaction described in Sections 5.01, 5.02(a) and
5.02(b), the Issuer, such Guarantor or the relevant surviving entity, as
applicable, shall cause such amendments, supplements or other instruments to be
executed, filed and recorded in such jurisdictions as may be required by
applicable law to preserve and protect the Lien of the Collateral Documents on
the Collateral pledged by such Person, together with such financing statements
as may be required to perfect any security interests in such Collateral that
may be perfected by the filing of a financing statement under the Uniform
Commercial Code of the relevant jurisdiction.


 


(d)                                 In
the event of (i) a sale or other disposition of all or substantially all
of the assets of any Guarantor, by way of merger, consolidation or otherwise,
or (ii) the sale or other disposition of Capital Stock of any Guarantor if
as a result of such disposition, such Person ceases to be a Subsidiary of the
Issuer, then the Person acquiring such assets (in the case of clause (i)) or
such Guarantor (in the case of clause (ii)) shall be automatically released and
relieved of any Obligations under its Security Guarantee; provided that such
sale or other disposition is in compliance with this Indenture, including
Sections 4.06 and 4.07 (it being understood that only such portion of the Net
Proceeds or Net Loss Proceeds as is or is required to be applied on or before
the date of such release in accordance with the terms of this Indenture needs
to be so applied).


 


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ARTICLE VI


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.  Events of Default and Remedies.


 


(a)                                  Each
of the following constitutes an “Event of Default” under this Indenture:


 


(1)                                  default
for 30 days in the payment when due of interest on the Securities;


 


(2)                                  default
in payment when due of the principal of the Securities (whether at its Stated
Maturity, upon repurchase, acceleration, optional redemption or otherwise);


 


(3)                                  failure
by the Issuer to comply with Section 4.09 or Section 5.01;


 


(4)                                  failure
by the Issuer for 60 days after receipt of notice given to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities outstanding specifying such
failure to comply with any of its other agreements in this Indenture, the
Securities or the Collateral Documents;


 


(5)                                  failure
by the Issuer or any Guarantor to deposit in a Collateral Account any Net
Proceeds in respect of an Asset Sale or Net Loss Proceeds in respect of an
Event of Loss, in each case, to the extent required to be so deposited under
this Indenture, for a period of more than 10 days after the date such deposit
was required to be made;


 


(6)                                  the
failure by the Issuer or any Subsidiary that is a Significant Subsidiary to pay
any Debt within any applicable grace period after final maturity or
acceleration by the holders thereof because of a default if the total amount of
such Debt unpaid or accelerated at the time exceeds $10,000,000;


 


(7)                                  any
judgment or decree for the payment of money in excess of $10,000,000 (net of
any insurance or indemnity payments actually received in respect thereof prior
to or within 60 days from the entry thereof, or to be received in respect
thereof in the event any appeal thereof shall be unsuccessful) is entered
against the Issuer or any Subsidiary that is a Significant Subsidiary and is
not discharged, waived or stayed and either (A) an enforcement proceeding
has been commenced by any creditor upon such judgment or decree or (B) there
is a period of 60 days following the entry of such judgment or decree
during which such judgment or decree is not discharged, waived or the execution
thereof stayed;


 


(8)                                  except
as permitted by this Indenture, any Security Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations under its
Security Guarantee;


 


(9)                                  the
Liens created by the Collateral Documents shall at any time not constitute a
valid and perfected Lien on the Collateral intended to be covered thereby  other than in accordance with the terms of
the relevant Collateral Document, the 


 


52

















 


Intercreditor
Agreement and this Indenture and other than the satisfaction in full of all
obligations under this Indenture or the release or amendment of any such Lien
in accordance with the terms of this Indenture, the Intercreditor Agreement or
the Collateral Documents, or the Issuer or any Guarantor shall have repudiated
or disaffirmed their obligations under the Collateral Documents or the
determination in a judicial proceeding that the Collateral Documents are
unenforceable or invalid against any of the Issuer or any Guarantor, except for
expiration in accordance with its terms or amendment, modification, waiver, termination
or release in accordance with the terms of this Indenture, the Intercreditor
Agreement and the relevant Collateral Document, any of the Collateral Documents
or the Intercreditor Agreement shall for whatever reason be terminated or cease
to be in full force and effect, if in either case, such default continues for
30 days after notice, or the enforceability thereof shall be contested by the
Issuer; and


 


(10)                            the
Issuer, any Guarantor or any Subsidiary of the Issuer that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:


 


(A)                              commences
a voluntary case;


 


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


 


(C)                                consents
to the appointment of a Custodian of it or for any substantial part of its
property;


 


(D)                               makes
a general assignment for the benefit of its creditors;


 


or takes any comparable
action under any foreign laws relating to insolvency; or


 


(11)                            a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 


(A)                              is
for relief against the Issuer, any Guarantor or any Subsidiary of the Issuer
that is a Significant Subsidiary in an involuntary case;


 


(B)                                appoints
a Custodian of the Issuer or any Subsidiary that is a Significant Subsidiary or
for any substantial part of its property; or


 


(C)                                orders
the winding up or liquidation of the Issuer or any Subsidiary that is a
Significant Subsidiary;


 


or any
similar relief is granted under any foreign laws and the order or decree
relating thereto remains unstayed and in effect for 60 days.


 


(b)                                 The
foregoing shall constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effect 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.


 


53

















 


(c)                                  The
term “Bankruptcy Law” means Title 11, United States Code, or any
similar federal or state law for the relief of debtors.  For purposes of this Section, the term “Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.


 


(d)                                 A
Default under clause (4) of Section 6.01(a) is not an Event
of Default until the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities notify the Issuer in writing by
registered or certified mail, return receipt requested, of the Default and the
Issuer does not cure such Default within the time specified in clause (4) of
Section 6.01(a) after receipt of such notice.  Such notice must specify the Default, demand
that it be remedied and state that such notice is a “Notice of Default”.


 


SECTION 6.02.  Acceleration.


 


(a)                                  If
an Event of Default (other than an Event of Default specified in Section 6.01(a)(10) or
(11) with respect to the Issuer or a Significant Subsidiary) occurs and is
continuing, the Trustee by notice to the Issuer in writing, or the Holders of
at least 25% in aggregate principal amount of the outstanding Securities by
notice in writing to the Issuer, may declare the principal of and accrued but
unpaid interest on all the Securities to be due and payable.  Upon such a declaration, such principal and
interest shall be due and payable immediately. 
Notwithstanding the foregoing, if an Event of Default specified in Section 6.01(a)(10) or
(11) with respect to the Issuer or a Significant Subsidiary occurs, the
principal of and interest on all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders.


 


(b)                                 At
any time after a declaration of acceleration with respect to the Securities as
described in Section 6.02(a), the Holders of a majority in aggregate
principal amount of the Securities may rescind and cancel such declaration and
its consequences:  (i) if the
rescission would not conflict with any judgment or decree; (ii) if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration; (iii) to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; and (iv) if the
Issuer has paid the Trustee its compensation and reimbursed the Trustee for its
expenses, disbursements and advances.  No
such rescission shall affect any subsequent Default or impair any right consequent
thereto.


 


(c)                                  In
the event of a declaration of acceleration of the Securities because an Event
of Default described in Section 6.01(a)(6) has occurred and is
continuing, the declaration of acceleration of the Securities shall be
automatically annulled, and the Event of Default shall be considered waived, if
the event of default or payment default triggering such Event of Default
pursuant to Section 6.01(a)(6) shall be remedied or cured by the
Issuer or a Subsidiary of the Issuer or waived by the holders of the relevant
Debt within 30 days after the declaration of acceleration with respect thereto
and if (1) the annulment of the acceleration of the Securities would not
conflict with any judgment or decree of a court of competent jurisdiction and (2) all
other existing Events of Default, except nonpayment of principal, premium or
interest on the Securities that became due solely because of the acceleration
of the Securities, have been cured or waived.


 


54

















 


SECTION 6.03.  Other Remedies.


 


(a)                                  Subject
to the provisions of the Intercreditor Agreement, if an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.


 


(b)                                 Subject
to the provisions of the Intercreditor Agreement, the Trustee may maintain a
proceeding even if it does not possess any of the Securities or does not
produce any of them in the proceeding.  A
delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default.  No remedy is exclusive of any other
remedy.  All available remedies are
cumulative (to the extent permitted by law).


 


(c)                                  Subject
to the provisions of the Intercreditor Agreement and Collateral Documents, the
Trustee shall have the authority to direct the Collateral Agent to institute
and to maintain such suits and proceedings as the Trustee may deem expedient to
prevent any impairment of the Collateral by any acts which may be unlawful or
in violation of any of the Collateral Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders of the Securities in the
Collateral (including suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the
security interests or be prejudicial to the interests of the Holders of the
Securities).


 


(d)                                 If
any Event of Default occurs and is continuing, the Trustee may in its sole
discretion exercise any remedies available to it pursuant to the Collateral
Documents with respect to the First Lien Collateral, or, if so directed, shall
exercise such remedies with respect to the First Lien Collateral as directed by
the Holders of at least a majority in principal amount of the then outstanding
Securities.


 


SECTION 6.04.  Waiver of Past Defaults.  The Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to the Trustee
may on behalf of the Holders of all of the Securities waive any existing
Default and its consequences under this Indenture except a continuing Event of
Default in the payment of interest on, or the principal of, the
Securities.  When a Default is waived, it
is deemed cured and ceases to exist and any Event of Default arising therefrom
shall be deemed to have been cured and waived for every purpose under this
Indenture, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.  Nothing
in this indenture shall be read to prevent the cure of any Event of Default.


 


SECTION 6.05.  Control by Majority.  The Holders of a majority in aggregate
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee by this Indenture.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability; provided, 


 


55

















 


however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. 
Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.


 


SECTION 6.06.  Limitation on Suits.


 


(a)                                  Except
to enforce the right to receive payment of principal, premium, if any, or
interest when due, no Holder may pursue any remedy with respect to this
Indenture, the Securities or the Security Guarantees unless:


 


(1)                                  such
Holder has previously given the Trustee notice that an Event of Default is
continuing;


 


(2)                                  Holders
of at least 25% in aggregate principal amount of the outstanding Securities
have requested to the Trustee to pursue the remedy;


 


(3)                                  such
Holders have offered the Trustee security or indemnity reasonably satisfactory
to it against any loss, liability or expense;


 


(4)                                  the
Trustee has not complied with such request within 60 days after the
receipt of the request and the offer of security or indemnity; and


 


(5)                                  the
Holders of a majority in aggregate principal amount of the outstanding
Securities have not given the Trustee a direction inconsistent with such
request within such 60-day period.


 


(b)                                 A
Holder shall not use this Indenture to prejudice the rights of another Holder
or to obtain a preference or priority over another Holder.


 


SECTION 6.07.  Rights of Holders to Receive Payment.  Subject to the Intercreditor Agreement,
notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.


 


SECTION 6.08.  Collection Suit by Trustee.  Subject to the Intercreditor Agreement, if an
Event of Default specified in Section 6.01(a)(1) or (2) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Issuer for the whole amount then due
and owing (together with interest on any unpaid interest to the extent lawful)
and the amounts provided for in Section 7.07.


 


SECTION 6.09.  Trustee May File Proofs of Claim.  Subject to the Intercreditor Agreement, the
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and the
Holders allowed in any judicial proceedings relative to the Issuer, any
Subsidiary or any Guarantor, their creditors or their property and, unless
prohibited by law or applicable regulations, may vote on behalf of the 


 


56

















 


Holders in any election
of a trustee in bankruptcy or other Person performing similar functions, and
any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make 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 its counsel, and any other amounts
due the Trustee under Section 7.07.


 


SECTION 6.10.  Priorities.  If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:


 


FIRST:  to the Trustee for amounts due under Section 7.07
and the Collateral Agent for any amounts, expenses, costs or liabilities owed
to or incurred by it relating to or in connection with any Collateral Document;


 


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


 


THIRD:  subject to the Intercreditor Agreement, to
the Issuer.


 


The Trustee may fix a
record date and payment date for any payment to Holders pursuant to this
Section.  At least 15 days before
such record date, the Trustee shall mail to each Holder and the Issuer a notice
that states the record date, the payment date and amount to be paid.


 


SECTION 6.11.  Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. 
This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Securities.


 


SECTION 6.12. Waiver
of Usury Stay or Extension Laws


 


Neither the Issuer nor
any Guarantor (to the extent they may lawfully do so) shall at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Issuer and each Guarantor (to the extent that they may
lawfully do so) expressly waive all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power granted in this
Indenture to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.


 


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ARTICLE VII


 


TRUSTEE


 


SECTION 7.01.  Duties of Trustee.


 


(a)                                  If
an Event of Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent Person would exercise or use
under the circumstances in the conduct of such Person’s own affairs.


 


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


 


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


 


(2)                                  in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture.  However, in the case of any such certificates
or opinions that by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture.


 


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


 


(1)                                  this
Section 7.01(c) does not limit the effect of Section 7.01(b);


 


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


 


(3)                                  the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05
or exercising any trust or power conferred upon the Trustee, or exercising any
trust or power conferred upon the Trustee.


 


(d)                                 Every
provision of this Indenture that in any way relates to the Trustee is subject
to Section 7.01(a), 7.01(b) and 7.01(c).


 


(e)                                  The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Issuer.


 


(f)                                    Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.


 


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(g)                                 No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur 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 to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(h)                                 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 and to the provisions of the TIA.


 


SECTION 7.02.  Rights of Trustee.  Subject to Section 7.01:


 


(a)                                  The
Trustee may conclusively rely, and shall be protected in acting or refraining
from acting, upon any document believed by it to be genuine and to have been
signed or presented by the proper person. 
The Trustee need not investigate any fact or matter stated in any such
document.


 


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


 


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


 


(d)                                 The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided,
however, that the Trustee’s conduct does not constitute willful
misconduct or negligence.


 


(e)                                  The
Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.


 


(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, consent, order, approval, bond, debenture, note or other paper
or document unless requested in writing to do so by the Holders of not less
than a majority in principal amount of the Securities at the time outstanding,
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 Issuer, personally
or by agent or attorney at the sole cost of the Issuer and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation.


 


(g)                                 The
Trustee shall not be required to give any note, bond or surety in respect of
the execution of the trusts and powers under this Indenture.


 


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(h)                                 The
permissive rights of the Trustee to take any action enumerated in this
Indenture shall not be construed as a duty to take such action.


 


(i)                                     The
rights, privileges, protections, immunities and benefits given to the Trustee,
including 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.


 


(j)                                     The
Trustee may request that the Issuer deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


(k)                                  any
request or direction of the Issuer mentioned herein shall be sufficiently
evidenced by an Issuer request and any resolution of the Board of Directors may
be sufficiently evidenced by a board resolution.


 


(l)                                     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 satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.


 


(m)                               in
no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(n)                                 In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


SECTION 7.03.  Individual Rights of Trustee.  The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.  Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights.  However, the Trustee must comply with
Sections 7.10 and 7.11 and Sections 310(b) and 311 of the TIA.


 


SECTION 7.04.  Trustee’s Disclaimer.  The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Issuer’s use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Issuer in this Indenture or in any document issued in 


 


60

















 


connection with the sale
of the Securities or in the Securities other than the Trustee’s certificate of
authentication.


 


SECTION 7.05.  Notice of Defaults.   Subject to the next sentence, if a Default
occurs and is continuing and is known to the Trustee, the Trustee shall mail to
each Holder notice of the Default. 
Except in the case of a Default in the payment of principal of, premium,
if any, or interest on any Security, the Trustee may withhold notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interests of Holders.  Notwithstanding anything to the contrary expressed
in this Indenture, the Trustee shall not be deemed to have knowledge of any
Default hereunder, except in the case of an Event of Default under Section 6.01(a)(1) or
(2) (provided that the Trustee is
Paying Agent), unless and until a Trust Officer receives written notice thereof
at its Corporate Trust Office, from the Issuer or a Holder that such Default
has occurred.


 


SECTION 7.06.  Reports by Trustee to Holders.  The Trustee shall transmit to the Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the TIA at the times and in the manner provided
pursuant thereto.  To the extent that any
such report is required by the TIA with respect to any 12-month period, such
report shall cover the 12-month period ending January 1 and shall be transmitted
by the next succeeding March 1 . 
The Issuer shall deliver to the Trustee, within 120 days after the end
of each fiscal year (other than fiscal years ending prior to the Issue Date),
an Officer’s Certificate indicating whether the signers thereof actually know
of any Default that occurred during the previous year.


 


A copy of each report at
the time of its mailing to Holders shall be filed with the Commission and each
stock exchange (if any) on which the Securities are listed.  The Issuer agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.


 


SECTION 7.07.  Compensation and Indemnity.  The Issuer shall pay to the Trustee from time
to time such compensation as is agreed to in writing by the Trustee and Issuer
for the Trustee’s services hereunder. 
The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. 
The Issuer shall reimburse the Trustee upon request for all
out-of-pocket disbursements, advances and expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services.  Such expenses shall include
the compensation and expenses of the Trustee’s counsel, accountants and
experts.  The Issuer and each Guarantor,
jointly and severally, shall indemnify the Trustee and its officers, directors,
shareholders, agents and employees (each, an “Indemnified Party”) for
and hold each Indemnified Party harmless against any and all loss, damage, claims,
liability or expense (including reasonable attorneys’ fees and expenses)
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by them without negligence or willful
misconduct on their part arising out of or in connection with the acceptance or
administration of this Indenture or the Securities and the performance of their
duties hereunder, including the cost and expense of enforcing this Indenture
against the Issuer (including this Section 7.07), and defending itself
against any claim (whether asserted by a Holder or any other person).  The Trustee, in its capacity as Paying Agent,
Registrar, Custodian and agent for service of notice and demands, and the Trustee’s
officers, directors, shareholders, agents and employees, 


 


61

















 


when acting in such other
capacity, shall have the full benefit of the foregoing indemnity as well as all
other benefits, rights and privileges accorded to the Trustee in this Indenture
when acting in such other capacity.  The
Trustee shall notify the Issuer of any claim for which it may seek indemnity
promptly upon receiving written notice thereof; provided that any
failure so to notify the Issuer shall not relieve the Issuer or any Guarantor
of its indemnity obligations hereunder. 
The Issuer shall defend the claim and the Indemnified Party shall
provide reasonable cooperation at the Issuer’s expense in the defense.  Such Indemnified Parties may have separate
counsel and the Issuer shall pay the fees and expenses of such counsel; provided
that the Issuer shall not be required to pay such fees and expenses if it
assumes such Indemnified Parties’ defense and, in such Indemnified Parties’
reasonable judgment, there is no conflict of interest between the Issuer and
such parties in connection with such defense. 
The Issuer need not reimburse any expense or indemnify against any loss,
liability or expense incurred by an Indemnified Party through such party’s own
willful misconduct, negligence or bad faith.


 


The Trustee’s right to
receive payment of any amounts due under this Indenture shall not be
subordinated to any other Debt of the Issuer and the Securities shall be
subordinate to the Trustee’s rights to receive such payment.


 


The Issuer’s payment
obligations pursuant to this Section shall survive the satisfaction or
discharge of this Indenture, any rejection or termination of this Indenture
under any Bankruptcy Law or the resignation or removal of the Trustee.  When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(a)(10) or (11) with
respect to the Issuer or a Significant Subsidiary, the expenses are intended to
constitute expenses of administration under the Bankruptcy Law.


 


SECTION 7.08.  Replacement of Trustee.  The Trustee may resign at any time by so
notifying the Issuer in writing.  The
Holders of a majority in principal amount of the Securities may remove the
Trustee by so notifying the Trustee and the Issuer in writing and may appoint a
successor Trustee.  The Issuer shall
remove the Trustee if:


 


(1)                                  the
Trustee fails to comply with Section 7.10;


 


(2)                                  the
Trustee is adjudged bankrupt or insolvent;


 


(3)                                  a
receiver or other public officer takes charge of the Trustee or its property;
or


 


(4)                                  the
Trustee otherwise becomes incapable of acting.


 


If the Trustee resigns,
is removed by the Issuer or by the Holders of a majority in principal amount of
the Securities and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the “retiring Trustee”),
the Issuer shall promptly appoint a successor Trustee.


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuer.  Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the 


 


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Trustee under this
Indenture.  The successor Trustee shall
mail a notice of its succession to Holders. 
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.


 


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


 


If the Trustee fails to
comply with Section 7.10, any Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


Notwithstanding the
replacement of the Trustee pursuant to this Section, the Issuer’s and
Guarantors’ obligations under Section 7.07 and rights under Section 7.02
shall continue for the benefit of the retiring Trustee.


 


SECTION 7.09.  Successor Trustee by Merger, Etc.  If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee, provided, that such Person shall be qualified and
eligible under this Article VII.


 


In case at the time such
successor or successors by consolidation, merger, conversion or transfer shall
succeed to the trusts created by this Indenture, any of the Securities shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the
certificate of the Trustee shall have.


 


SECTION 7.10.  Eligibility; Disqualification.  The Trustee shall at all times satisfy the
requirements of TIA § 310(a).  The
Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition.  The Trustee shall comply with TIA
§ 310(b)[; provided, however, that there shall be excluded
from the operation of TIA § 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA § 310(b)(1) are met].


 


SECTION 7.11.  Preferential Collection of Claims
Against Issuer.  The Trustee
shall comply with TIA § 311(a), excluding any creditor relationship listed
in TIA § 311(b).  A Trustee who has
resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated therein.


 


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ARTICLE VIII


 


DISCHARGE OF INDENTURE; DEFEASANCE


 


SECTION 8.01.  Legal Defeasance and Covenant Defeasance.


 


(a)                                  The
Issuer may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section 8.01(b) or
8.01(c) be applied to all outstanding Securities upon compliance with the
conditions set forth below in this Article VIII.


 


(b)                                 Upon
the Issuer’s exercise under Section 8.01(a) of the option applicable
to this Section 8.01(b), the Issuer and each Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.02, be deemed to
have been discharged from their obligations with respect to the Securities, any
Security Guarantees, the Collateral Documents and the Intercreditor Agreement
on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”).  For this purpose,
Legal Defeasance means that the Issuer and each Guarantor shall be deemed to
have paid and discharged the entire Debt represented by the outstanding
Securities and any Security Guarantee, which Securities and Security Guarantees
shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.04
and the other Sections of this Indenture referred to in (i) and (ii) below,
and to have satisfied all their other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder:  (i) the
rights of Holders of outstanding Securities to receive solely from the trust
fund described in Article VIII, as more fully set forth in such Article,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Issuer’s obligations with
respect to the Securities under Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.09, 7.07 and 7.08, which shall survive until the Securities have been paid in
full (thereafter, the Issuer’s obligations in Section 7.07 shall survive),
and (iii) the rights, powers, trusts, duties and immunities of the
Trustee, and the Issuer’s and the Guarantor’s obligations in connection
therewith and (iv)  this Section 8.01 and Section 8.02.  Subject to compliance with this Article VIII,
the Issuer may exercise its Legal Defeasance option notwithstanding the prior
exercise of its Covenant Defeasance option.


 


(c)                                  Upon
the Issuer’s exercise under Section 8.01(a) of the option applicable
to this Section 8.01(c), subject to the satisfaction of the conditions set
forth in Section 8.02, each Guarantor shall be released from its Security
Guarantee and  the Issuer and each
Guarantor shall be released from their obligations under Sections 4.02,
4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.16, 4.18 and 4.19 with respect to the outstanding Securities on and after the
date the conditions set forth below are satisfied (hereinafter, “Covenant
Defeasance”), and the Securities shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration of act of
Holders (and the consequences of any thereof) in connection with such Sections,
but shall continue to be deemed “outstanding” for all the other purposes
hereunder.  For this purpose, Covenant
Defeasance means that, with respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of any
reference in 


 


64

















 


any such Section to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default, but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.  In addition, upon the Issuer’s exercise of
its Covenant Defeasance option, subject to the satisfaction of the conditions
set forth in Section 8.02, Sections 6.01(a)(3), 6.01(a)(4) (with
respect to compliance with Sections 4.02, 4.05, 4.08, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 4.18, 4.19), 6.01(a)(5), 6.01(a)(6), 6.01(a)(7),
6.01(a)(8) (with respect to Subsidiaries of the Issuer only), 6.01(a)(9) or
Sections 6.01(a)(10) or (11) (with respect to Subsidiaries of the
Issuer only) shall not constitute Events of Default.


 


SECTION 8.02.  Conditions to Legal or Covenant Defeasance.  In order to exercise either Legal Defeasance
or Covenant Defeasance:


 


(a)                                  the
Issuer or the Guarantors must irrevocably deposit with the Trustee (or another
qualifying trustee, collectively, for purposes of this Section 8.02 and Section 8.04,
the term “Trustee” shall include any such qualifying trustee), in trust,
for the benefit of the Holders, cash in United States dollars, Government
Notes, or a combination thereof, in such amounts as shall be sufficient
(without reinvestment), in the opinion of a nationally recognized investment
banking firm, appraisal firm or firm of independent public accountants, to pay
the principal of and interest on the outstanding Securities on the Stated Maturity
or on the applicable redemption date, as the case may be, and the Issuer must
specify whether the Securities are being defeased to maturity or to a
particular redemption date;


 


(b)                                 in
the case of Legal Defeasance, the Issuer or the Guarantors shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably acceptable
to the Trustee confirming that, subject to customary assumptions and
exclusions: (A) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the Issue Date,
there has been a change in the applicable federal income tax law, and, in
either case to the effect that, the Holders of the outstanding Securities will
not recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;


 


(c)                                  in
the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel in the United States, reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions, the
Holders of the Outstanding Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred;


 


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


 


65

















 


(e)                                  such
defeasance or covenant defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the TIA (assuming all Securities are
in default within the meaning of the TIA;


 


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


 


(g)                                 the
Issuer or the Guarantors shall have delivered to the Trustee an Officers’
Certificate stating that the deposit was not made by the Issuer with the intent
of preferring the Holders over the other creditors of the Issuer or the
Guarantors, as applicable, or with the intent of defeating, hindering, delaying
or defrauding creditors of the Issuer or the Guarantors, as applicable, or
others; and


 


(h)                                 the
Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary
assumptions and exclusions), each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with.


 


SECTION 8.03.  Satisfaction and Discharge of Indenture.  Upon the request of the Issuer, this
Indenture shall cease to be of further effect (except as to surviving rights of
registration of transfer or exchange of the Securities, as expressly provided
for herein or pursuant hereto), the Issuer and the Guarantors shall be
discharged from their obligations under the Securities and the Security
Guarantees, and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, the
Security Guarantees, the Collateral Documents and the Securities when:


 


(a)                                  either
(i) all the Securities theretofore authenticated and delivered (other than
mutilated, destroyed, lost or stolen Securities that have been replaced or
paid) have been delivered to the Trustee for cancellation or (ii) all
Securities not theretofore delivered to the Trustee for cancellation (A) have
become due and payable, (B) will become due and payable at maturity within
one year or (C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Issuer, and the Issuer,
in the case of (A), (B) or (C) above, has irrevocably deposited or
caused to be deposited with the Trustee funds in trust for such purpose in an
amount sufficient to pay and discharge the entire Debt on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any, on) and interest on the Securities to the date of such deposit
(in the case of Securities that have become due and payable) or to the Stated
Maturity or redemption date, as the case may be;


 


(b)                                 the
Issuer has paid or caused to be paid all sums payable under this Indenture by
the Issuer;


 


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


 


(d)                                 the
Issuer has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Securities at
maturity or on the redemption date, as the case may be; and


 


(e)                                  the
Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel (which Opinion of Counsel may be subject to customary assumptions and
exclusions), each stating that all conditions precedent provided in this Indenture
relating to the satisfaction and discharge of this Indenture, the Security
Guarantees and the Securities have been complied with.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Issuer to
the Trustee under Section 7.07 and, if money shall have been deposited
with the Trustee pursuant to clause (a)(ii) of this Section, the
obligations of the Trustee and the Paying Agent under Section 8.04 and Section 2.04
shall survive such satisfaction and discharge.


 


SECTION 8.04.  Deposited Money and Government Notes to be
Held in Trust; Other Miscellaneous Provisions.  Subject to Section 8.05, all money and
Government Notes (including the proceeds thereof) deposited with the Trustee
pursuant to Section 8.02 or 8.03 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as Paying Agent)
as the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.


 


Anything in this Article VIII
to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer
from time to time upon the request of the Issuer any money or Government Notes
held by it as provided in Section 8.02 or 8.03 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.02(a)), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


 


SECTION 8.05.  Repayment to Issuer.  Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of, premium or interest on any Security and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Issuer on its request or (if then held by the Issuer)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer 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 Issuer, cause to be published once, in the
New York Times (national edition) and the Wall Street Journal 


 


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(national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Issuer.


 


SECTION 8.06.  Reinstatement.  If the Trustee or Paying Agent is unable to
apply any United States dollars or Government Notes in accordance with this Article VIII
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article VIII
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with this Article VIII; provided, however,
that, if the Issuer or any Guarantor makes any payment of principal of, premium
or interest on any Security following the reinstatement of its obligations, the
Issuer or any Guarantor, as the case may be, shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the Trustee or Paying Agent.


 


ARTICLE IX


 


AMENDMENTS


 


SECTION 9.01.  Without Consent of Holders.  The Issuer, the Guarantors and the Trustee
may amend or supplement this Indenture, the Securities, the Security
Guarantees, the Collateral Documents and the Intercreditor Agreement without
notice to or consent of any Holder to:


 


(1)                                  cure
any ambiguity, defect or inconsistency;


 


(2)                                  provide
for uncertificated Securities in addition to or in place of certificated
Securities;


 


(3)                                  provide
for the assumption of any Guarantor’s obligations to Holders of Securities in
the case of a merger, consolidation or sale of assets, permitted to be granted
to third parties, or amend, restate or assign the Collateral Documents or the
Intercreditor Agreement in connection with a refinancing of the Existing Credit
Facilities in accordance with the provisions of this Indenture, the Collateral
Documents or the Intercreditor Agreement or provide for additional Guarantors
or to add collateral;


 


(4)                                  make
any change that would provide any additional rights or benefits to the Holders
of Securities;


 


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


 


(6)                                  provide
for the issuance of Additional Securities and PIK Securities under this
Indenture in accordance with the limitations set forth in this Indenture as of
the Issue Date.


 


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After an amendment under
this Section becomes effective, the Issuer shall mail to Holders a notice
briefly describing such amendment.  The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.


 


SECTION 9.02.  With Consent of Holders.  The Issuer, the Guarantors and the Trustee
may amend or supplement this Indenture, the Securities or the Security
Guarantees without notice to any Holder but, subject to the next succeeding
paragraph, with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities), and any existing default or compliance with any provisions of
this Indenture, the Securities and the Security Guarantees may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Securities (including consents obtained in connection with a
purchase of or tender offer or exchange offer for Securities).  Notwithstanding the foregoing, without the
consent of each Holder affected, an amendment or waiver shall not (with respect
to any Securities held by a non-consenting Holder):


 


(1)                                  reduce
the principal amount of Securities whose Holders must consent to an amendment,
supplement or waiver;


 


(2)                                  reduce
the principal of or change the fixed maturity of any Security or change the
dates (to earlier dates) of, redemption of any Security (other than dates under
Section 4.06, 4.07 or 4.09);


 


(3)                                  reduce
the rate of or change the time for payment of interest on any Security;


 


(4)                                  waive
a Default in the payment of principal of or interest on the Securities (except
a rescission of acceleration of the Securities by the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding and a
waiver of the payment default that resulted from such acceleration);


 


(5)                                  make
any Security payable in money other than that stated in the Securities;


 


(6)                                  impair
the rights of Holders to receive payments of principal of or interest on the
Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to any Securities;


 


(7)                                  make
any change in this Section 9.02; or


 


(8)                                  except
as permitted by this Indenture, release any Security Guarantee or substantially
all of the Collateral other than in accordance with this Indenture, the
Collateral Documents or the Intercreditor Agreement.


 


Any amendment to, or
waiver of, the provisions of this Indenture or any Collateral Document that has
the effect of releasing all or substantially all of the Collateral from the
Liens securing the Securities or otherwise modify the Intercreditor Agreement
in any manner adverse 


 


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in any material respect
to the Holders shall require the consent of the Holders of at least 66-2/3% in
aggregate principal amount of Securities then outstanding.


 


It shall not be necessary
for the consent of the Holders under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.


 


After an amendment under
this Section becomes effective, the Issuer shall mail to Holders a notice
briefly describing such amendment.  The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.


 


SECTION 9.03.  Compliance with TIA.  Every amendment to this Indenture or the
Securities shall comply with the TIA as then in effect.


 


SECTION 9.04.  Revocation and Effect of Consents and
Waivers.


 


(a)                                  A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder’s Security, even if
notation of the consent or waiver is not made on the Security.  However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Security or portion of the
Security if the Trustee receives written notice of revocation before the date
the requisite number of consents are received by the Issuer or the Trustee.  After an amendment or waiver becomes
effective, it shall bind every Holder. 
An amendment or waiver becomes effective once the requisite number of
consents are received by the Issuer or the Trustee and any other conditions to
effectiveness of such consent specified in the amendment or waiver are
satisfied.


 


(b)                                 The
Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this
Indenture.  If a record date is fixed,
then notwithstanding Section 9.04(a), those Persons who were Holders at
such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be
Holders after such record date.


 


SECTION 9.05.  Notation on or Exchange of Securities.  If an amendment changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee.  The Trustee may place an
appropriate notation on the Security regarding the changed terms and return it
to the Holder.  Alternatively, if the
Issuer or the Trustee so determines, the Issuer in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.  Failure to make the
appropriate notation or to issue a new Security shall not affect the validity
of such amendment.


 


SECTION 9.06.  Trustee to Sign Amendments.  The Trustee shall sign any amendment
authorized pursuant to this Article IX if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee.  If it does, the Trustee may but need not sign
it.  In signing such amendment the
Trustee shall be entitled to receive indemnity satisfactory to it and 


 


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shall be provided with,
and (subject to Section 7.01) shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture that such amendment is the legal,
valid and binding obligation of the Issuer and the Guarantors enforceable against
them in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof (including Section 9.03).


 


ARTICLE X


 


COLLATERAL AND SECURITY


 


SECTION 10.01.
Collateral Documents.    
The Obligations of the Issuer under the Securities, the Indenture and
the Collateral Documents are secured by first-priority mortgages or deeds of
trust in the First Lien Collateral and second-priority mortgages or deeds of
trust in the Second Lien Collateral, subject to Permitted Collateral Liens,
which mortgages and deeds of trust the Guarantors owning the First Lien
Collateral and the Second Lien Collateral have entered into simultaneously with
the execution of this Indenture, or in certain circumstances, will enter into
subsequent to the Issue Date, and will be secured as provided therein and in
the other Collateral Documents and the Intercreditor Agreement.  The Collateral Agent’s Liens on the
Collateral shall be recourse only to the Real Estate subject to such Lien and
not the owner thereof if other than the Issuer and will not secure the
Obligations of any Guarantor in respect of its Note Guarantee.


 


SECTION 10.02.
Collateral Agent.


 


(a)                                  The
Issuer hereby appoints [           ]
to act as Collateral Agent (hereinafter, together with any successor acting in such capacity, the “Collateral Agent”),
and the Collateral Agent shall have the privileges, powers and immunities as
set forth herein and in the Collateral Documents and the Intercreditor
Agreement.  The Issuer and the Guarantors
hereby agree that the Collateral Agent shall hold the Collateral in trust for
the benefit of all of the Holders and the Trustee, in each case, pursuant to
the terms of the Collateral Documents and the Intercreditor Agreement, and the
Collateral Agent is hereby authorized and directed to execute and deliver the
Collateral Documents, the Intercreditor Agreement and any agreement which
replaces (in substantially similar form) the Intercreditor Agreement. Subject
to the Intercreditor Agreement, the Collateral Agent is authorized and
empowered to appoint one or more co-Collateral Agents as it may deem necessary
or appropriate.


 


(b)                                 Beyond
the exercise of reasonable care in the custody thereof, the Collateral Agent
shall have no duty as to any Collateral in its possession or control or in the
possession or control of any agent or bailee or any income thereon or as to
preservation of rights against prior parties or any other rights pertaining
thereto and the Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise perfecting or maintaining the
perfection or any security interest in the Collateral. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not be
liable or responsible for any loss or diminution in the value of any of the
Collateral, by reason of the act or omission of any carrier, forwarding agency
or other agent or bailee selected by the Trustee in 


 


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good faith.  Neither the Trustee nor the Collateral Agent
shall be responsible for the existence, genuineness or value of any of the
Collateral or for the validity, perfection, priority or enforceability of the
liens in any of the Collateral, whether impaired by operation of law or by
reason of any action or omission to act on its part hereunder, except to the
extent such action or omission constitutes gross negligence or willful
misconduct on the part of the Trustee, for the validity or sufficiency of the
Collateral or any agreement or assignment contained therein, for the validity
of the title of the respective grantor to the Collateral, for insuring the
Collateral or for the payment of taxes, charges, assessments or Liens upon the
Collateral or otherwise as to the maintenance of the Collateral.  The Trustee shall have no duty to ascertain
or inquire as to the performance or observance of any of the terms of this
Indenture or any Collateral Document by the Issuer, any secured parties or the
Collateral Agent.


 


(c)                                  The
Trustee and the Collateral Agent are hereby authorized and directed to enter
into any applicable Collateral Documents. 
The Collateral Agent will be subject to such directions as may be given
it by the Trustee from time to time (as required or permitted by this
Indenture). Except as directed by the Trustee as required or permitted by this
Indenture or as required or permitted by the Collateral Documents and the
Intercreditor Agreement, the Collateral Agent will not be obligated:


 


(1)                                  to
act upon directions purported to be delivered to it by any other Person;


 


(2)                                  to
foreclose upon or otherwise enforce the Collateral Agent’s Liens; or


 


(3)                                  to
take any other action whatsoever with regard to any or all of the Collateral
Agent’s Liens, Collateral Documents, the Intercreditor Agreement or Collateral.


 


(d)                                                The
Collateral Agent will be accountable only for amounts that it actually receives
as a result of the enforcement of the Collateral Agent’s Liens or the
Collateral Documents and the Intercreditor Agreement.


 


(e)                                                 In
acting as Collateral Agent or co-Collateral Agent, the Collateral Agent and
each co-Collateral Agent may rely upon and enforce for its own benefit each and
all of the rights, powers, immunities, indemnities and benefits of the Trustee
under Article 7 hereof, each of which shall also be deemed to be for the
benefit of the Collateral Agent and each co-Collateral Agent.


 


(f)   At all times when the Trustee
is not itself the Collateral Agent, the Issuer will deliver to the Trustee
copies of all Collateral Documents and the Intercreditor Agreement delivered to
the Collateral Agent and copies of all documents delivered to the Collateral
Agent pursuant to the Collateral Documents and the Intercreditor Agreement.


 


SECTION 10.03.
Authorization of Actions to be Taken.


 


(a)                                                 Each
Holder of Securities, by its acceptance thereof, consents and agrees to the
terms of each Collateral Document and Intercreditor Agreement, as originally in
effect on the Issue Date and as amended, supplemented or replaced from time to
time in accordance with its terms or the terms of this Indenture, authorizes
and directs the Trustee and the Collateral Agent 


 


72

















 


to execute and deliver the Collateral Documents and the Intercreditor
Agreement to which it is a party and authorizes and empowers the Trustee and
the Collateral Agent to bind the Holders of Securities and to perform its
obligations and exercise its rights and powers thereunder.


 


(b)                                                The
Collateral Agent and the Trustee are authorized and empowered to receive for
the benefit of the Holders of Securities any funds collected or distributed
under the Collateral Documents and the Intercreditor Agreement to which the
Collateral Agent or Trustee is a party and to make further distributions of
such funds to the Holders of Securities according to the provisions of this
Indenture.


 


(c)                                                 Subject
to the provisions of Section 7.01, Section 7.02 and the Intercreditor
Agreement, the Trustee may, in its sole discretion and without the consent of
the Holders of Securities, direct, on behalf of the Holders of Securities, the
Collateral Agent to take all actions it may deem necessary or appropriate in
order to:


 


(1)                                  foreclose
upon or otherwise enforce any or all of the Collateral Agent’s Liens; or


 


(2)                                  enforce
any of the terms of the Collateral Documents and the Intercreditor Agreement to
which the Collateral Agent or Trustee is a party.


 


Subject to the
Intercreditor Agreement, Section 7.01 and Section 7.02, the Trustee
is authorized and empowered to institute and maintain, or direct the Collateral
Agent to institute and maintain, such suits and proceedings as it may deem
expedient or as may be necessary to protect or enforce the Collateral Agent’s
Liens or the Collateral Documents and Intercreditor Agreement to which the
Collateral Agent or Trustee is a party or to prevent any impairment of
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents and the Intercreditor Agreement to which the Collateral Agent or
Trustee is a party or this Indenture, and such suits and proceedings as the Trustee
or the Collateral Agent may deem expedient to preserve or protect its interests
and the interests of the Holders of Securities in the Collateral, including
power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid
if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of Holders of Notes, the Trustee or the Collateral Agent.


 


SECTION 10.04.  Maintenance of Collateral.


 


(a)                                                 The
Issuer shall, and shall cause its Subsidiaries to, maintain the Collateral in
good, safe and insurable operating order, condition and repair (ordinary wear
and tear excepted) and do all other acts as may be reasonably necessary or
appropriate to maintain and preserve the value of the Collateral in all
material respects.


 


(b)                                                The
Issuer shall, and shall cause its Subsidiaries to, pay all real estate and
other taxes (except for those being contested in good faith and for which
adequate reserves have been made), and maintain in full force and effect all
material permits and certain insurance coverages, except to the extent that the
failure to maintain such permits and coverages follows the sale of the assets
to which such permits or coverages relate.


 


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SECTION 10.05.  Further Assurances.


 


Subject to the
Intercreditor Agreement, the Issuer shall, and shall cause its Subsidiaries to,
at their sole expense, execute, acknowledge and deliver such documents and
instruments and take such other actions, as may be necessary or as the
Collateral Agent or the Trustee may reasonably request to create, protect,
assure, perfect, transfer and confirm the Liens (subject to Permitted
Collateral Liens), benefits, property and rights conveyed or intended to be
conveyed by this Indenture or the Collateral Documents for the benefit of the
Holders and the Trustee, including with respect to After-Acquired Property.


 


SECTION 10.06.  Real Estate Mortgages and Filings.


 


With respect to any fee
interest in certain real property (individually and collectively, the “Premises”)
constituting Collateral on the Issue Date, or substitute Second Lien Collateral
substituted in accordance with the provisions described under Section 10.09
below:


 


(a)                                                 With
regard to any First Lien Collateral, the Issuer shall deliver to the Collateral
Agent, as mortgagee or beneficiary, as applicable, fully executed counterparts
of mortgages or deeds of trust, each dated as of the Issue Date or, if later,
the date such property is substituted in accordance with Section 10.09(b),
in accordance with the requirements of this Indenture and/or the Collateral
Documents, duly executed by the Issuer or its applicable Subsidiary, together
with evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such mortgage or deed of trust
(and payment of any taxes or fees in connection therewith) as may be necessary
to create a valid, perfected first-priority Lien (subject to Permitted Liens of
the type described in clauses (2), (5) and (6) of the definition
thereof and, in the case of clauses (2) and (5), in an amount not to
exceed $400,000 in the aggregate) against the properties purported to be
covered thereby, and an environmental indemnity relating to such properties
that will be subordinated in right of payment to the same extent as the
Security Guarantees;


 


(b)                                                With
regard to any Second Lien Collateral, subject to the Intercreditor Agreement,
the Issuer shall deliver to the Collateral Agent, as mortgagee or beneficiary,
as applicable, fully executed counterparts of mortgages or deeds of trust, each
dated as of the Issue Date or, if later, the date such property is pledged to
secure Obligations under the Existing Credit Facilities, in accordance with the
requirements of this Indenture and/or the Collateral Documents, duly executed
by the Issuer or its applicable Subsidiary, together with evidence of the
completion (or satisfactory arrangements for the completion) of all recordings
and filings of such mortgage or deed of trust (and payment of any taxes or fees
in connection therewith) as may be necessary to create a valid, perfected
second-priority Lien (subject to Permitted Collateral Liens) against the
properties purported to be covered thereby, and an environmental indemnity
relating to such properties that will be subordinated in right of payment to
the same extent as the Security Guarantees; and


 


(c)                                                 The
Collateral Agent shall have received mortgagee’s title insurance policies or
date-down endorsements to the existing title insurance policies in favor of the
Collateral Agent, as mortgagee for the ratable benefit of itself and the
Trustee, the Holders of the Securities, in the form necessary, with respect to
the property purported to be covered by such mortgage or deed of trust, to
insure that the interests created by the mortgage or deed of trust constitute valid
first-


 


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priority or second-priority Liens, as applicable, on such property free
and clear of all Liens, defects and encumbrances (subject to Permitted
Collateral Liens), including,  to the
extent available at a commercially reasonable premium, the endorsements
equivalent to those delivered in connection with the Existing Credit Facilities
and shall be accompanied by evidence of the payment in full of all premiums
thereon.


 


SECTION 10.07. Impairment
of Security Interest


 


Subject to the rights of the holders of
Permitted Collateral Liens, the Issuer shall not, and
shall not permit any of its Subsidiaries to, take or omit to take, any action
which action or omission would or could reasonably be expected to have the
result of materially impairing the security interests in the Collateral for the
benefit of the Trustee and the Holders. The Issuer shall not amend, modify or
supplement, or permit or consent to any amendment, modification or supplement
of, the Collateral Documents in any way that would be adverse to the Holders in
any material respect, except as permitted under this Indenture or the
Intercreditor Agreement.


 


SECTION 10.08. After-Acquired
Property


 


Upon the acquisition by
the Issuer or any Subsidiary of any After-Acquired Property, the Issuer or such
Subsidiary shall execute and deliver such mortgages, deeds of trust, security
instruments, financing statements and certificates and Opinions of Counsel as
shall be necessary to vest in the Collateral Agent a perfected first priority
security interest in all First Lien After-Acquired Property and a perfected
second priority security interest in all Second Lien After-Acquired Property
and to have such After-Acquired Property added to the Collateral, and thereupon
all provisions of this Indenture relating to the Collateral shall be deemed to
relate to such After-Acquired Property to the same extent and with the same
force and effect.


 


SECTION 10.09.  Substitution of Collateral.


 


(a)                                                 The
Issuer may from time to time provide substitute Real Estate collateral (the “Substituted
Property”) for any Collateral constituting Second Lien Collateral, or, only in
the circumstances described in Section 10.09(b), for any Collateral
constituting First Lien Collateral; provided that, except as described below,
for each such substitution of Second Lien Collateral (a “Property Substitution”),
the requirements under Credit Facilities and the Intercreditor Agreement are
satisfied with respect to such Property Substitution and the applicable
Substituted Property, including that, in the event of such substitution, the
Securities are secured by a Lien on any such substitute collateral that is
subordinate only to (x) any Lien securing Designated Senior Debt and (y) Permitted
Liens described in clause (6) of the definition of “Permitted Liens” or
arising by operation of law, and the following conditions are satisfied with
respect to such Property Substitution and the applicable Substituted Property:


 


(1)                                  no
Default or Event of Default has occurred and is continuing both before and
after giving effect to such Property Substitution;


 


(2)                                  the
applicable Substituted Property is free and clear of all Liens other than
Permitted Collateral Liens;


 


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(3)                                  Trustee
shall have received an appraisal for the applicable Substituted Property (the “Substituted
Property Appraisal”) , dated no more than six (6) months prior to the date
of such Property Substitution;


 


(4)                                  the
appraised value of the applicable Substituted Property, as set forth in the
Substituted Property Appraisal shall be equal to or greater than the value of
the portion of the Collateral being replaced (the “Replaced Property”);


 


(5)                                  the
Trustee shall have received each of the following:


 


(i)                                     a
fully executed Mortgage of applicable priority (the “Substituted Property
Mortgage”) with respect to each parcel of the Substituted Property, in
substantially the form of the Collateral Documents delivered on or prior to the
Issue Date, with such modifications thereto as shall be reasonably required
with respect to the local jurisdictions in which the Substituted Property is
located;


 


(ii)                                  an
ALTA extended coverage title policy or policies, in customary form and
substance and in customary amounts and with customary endorsements, with
respect to each Substituted Property Mortgage;


 


(iii)                               duly
executed and filed UCC-3 Termination Statements or such other instruments or
evidence as shall be necessary to terminate and satisfy all Liens (other than
Permitted Collateral Liens), if any, on the Substituted Property;


 


(iv)                              an
Opinion of Counsel in a form, scope and substance reasonably acceptable to the
Collateral Agent to the effect that the Property Substitution is in compliance
with this Indenture; and


 


(v)                                 an
Officers’ Certificate in a form, scope and substance reasonably acceptable to
the Collateral Agent to the effect that all conditions to such Property
Substitution are satisfied; and


 


(6)                                  Issuer
shall have paid all reasonable costs related to such Property Substitution,
including, but not limited to, reasonable attorney’s fees or fees related to
appraisers, consultants and the Collateral Agent, filing fees and the cost of
ALTA extended coverage title policies for the Substituted Property required
above, in connection with any request for Property Substitution, and as a
condition to such substitution, the Issuer shall have provided evidence to the
Trustee that the Issuer has paid, or made arrangement for the payment of, all
such costs which became due and payable prior to or concurrently with such
Property Substitution.


 


(b)                                                If
after the Issue Date, the results of one or more surveys cause the appraisals
obtained prior to the Issue Date to be revised so that the aggregate appraised
value of the First Lien Collateral is less than $19,250,000, the Issuer shall
provide additional First Lien Collateral (including by way of substitution) so
that the aggregate appraised value of the First Lien Collateral is between
$19,250,000 and $20,000,000 (plus, if it is necessary to pledge a pool of
assets whose aggregate value is greater than $20,000,000 in order to generate a
pool of assets whose aggregate value is at least $19,250,000, such additional
amount as permitted pursuant to


 


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the Existing Credit
Facilities).  Any such substitution of
First Lien Collateral will be subject to satisfaction of the conditions
precedent described in Section 10.09(a) (1) – (6) for a
substitution of Second Lien Collateral, as well as the following requirements:


 


(1)                                  the
aggregate value of Permitted Collateral Liens, of the type described in clauses
(2) and (5) of the definition of “Permitted Liens”, on First Lien
Collateral cannot exceed $400,000, and there shall be no Permitted Liens on
First Lien Collateral other than those described in clauses (2), (5) and
(6) of the definition of “Permitted Liens”; and


 


(2)                                  the
Issuer shall not have any Liens of the type described in clause (5) of the
definition of “Permitted Liens” on First Lien Collateral unless any such
Lien has been fully bonded and is being actively contested in good faith by the
Issuer.


 


(c)                                                                                                 Notwithstanding
the foregoing, with respect to Second Lien Collateral only, each requirement
set forth above shall be deemed to be acceptable to the Trustee  and the Collateral Agent to the extent that
the documentation relating to each such requirement is substantially in the
form delivered to the Representative for, or the required holders of, the
Designated Senior Debt in respect of such substitution of Second Lien
Collateral, as certified in an Officers’ Certificate delivered by the Issuer to
the Collateral Agent five Business Days prior to the proposed date of
substitution of Substituted Property.


 


(d)                                                Upon
a substitution of Substituted Property, all Liens on the Replaced Property in
favor of the Collateral Agent for the benefit of the Trustee and the Holders of
the Securities shall be released and the Collateral Agent and the Trustee shall
execute such documents and take such further action as reasonably requested by
the Issuer, in furtherance of the substitution. 
For the avoidance of doubt, following the substitution of any Replaced
Property with any Substituted Property in accordance with this Section, such
Replaced Property shall no longer constitute Collateral for any purpose under
Securities and the Collateral Documents.


 


SECTION 10.10. 
Release of Liens.


 


(a)                                                 The
Liens on the Collateral securing the Securities shall, upon compliance by the
Issuer with Sections 10.10(b), if applicable, and 10.10(d) if the Issuer
delivers to the Trustee all documents required by the TIA, automatically and
without the need for further action by any Person (except as set forth below),
so long as such release is in compliance with the TIA, be released:


 


(1)                                  in
whole, upon payment in full of the principal of, and accrued and unpaid
interest, if any, on the Securities;


 


(2)                                  in
whole, upon satisfaction and discharge of this Indenture as set forth in Section 8.03;


 


(3)                                  in
whole, upon a legal or covenant defeasance as set forth under Section 8.01;


 


(4)                                  in
whole or in part, as to any asset constituting Collateral in accordance with,
and as expressly provided for under, this Indenture, including upon an Asset
Sale as


 


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described under Section 4.06, the Collateral
Documents or the Intercreditor Agreement; and


 


(5)                                  with
the consent of Holders of a majority in aggregate principal amount of the
Securities (or, in the case of a release of all or substantially all
Collateral, each  of the Securities
affected thereby).


 


(b)                                                Liens
on the Second Lien Collateral will be released:


 


(1)                                  in
whole, upon (a) payment in full of all outstanding Obligations under the
Existing Credit Facilities and the Securities then outstanding, due and payable
at the time such Obligations are paid in full and (b) termination or
expiration of all commitments to extend credit under all the Existing Credit
Facilities and the cancellation or termination or cash collateralization of all
outstanding letters of credit issued pursuant to the Existing Credit
Facilities;


 


(2)                                  as
to any Second Lien Collateral (x) that is sold, transferred or otherwise
disposed of by the Issuer or a Guarantor to a Person that is not (either before
or after such sale, transfer or disposition) the Issuer or another Guarantor in
a transaction or other circumstance that is permitted by the terms of the
Existing Credit Facilities or is otherwise consented to by the required lenders
thereunder; provided, that the proceeds of such sale, transfer or other
disposition are thereafter applied in accordance with Section 4.06 or (y) that
is released, substituted or replaced by the Issuer or a Guarantor in connection
with a substitution of Collateral in accordance with the provisions of the
Existing Credit Facilities; provided, that in the case of a release
under such circumstances, the Securities are secured by a Lien on such
replacement or substitute collateral that is subordinate only to (i) any
Lien securing Obligations under the Existing Credit Facilities, and (ii) other
Permitted Collateral Liens;


 


(3)                                  as
to a release of less than all or substantially all of the Second Lien
Collateral, if consent to the release of all Liens in favor of the holders of
Debt under the Existing Credit Facilities on such Second Lien Collateral has
been given by the required lenders thereunder (as defined under the Existing
Credit Facilities) (other than in connection with a repayment in full of all
Obligations under the Existing Credit Facilities); and


 


(4)                                  as
to a release of all or substantially all of the Second Lien Collateral, if (a) consent
to the release of that Second Lien Collateral has been given by the requisite
percentage or number of holders of Obligations outstanding under the Existing
Credit Facilities and the Securities and (b) the Issuer has delivered an
Officers’ Certificate to the Collateral Agent and the collateral agent under
the Existing Credit Facilities certifying that all such necessary consents have
been obtained.


 


(c)                                                 If
an instrument confirming the release of the Collateral Agent’s Liens pursuant
to Section 10.10(a) and, if applicable, Section 10.10(b) is
requested by the Issuer or a Subsidiary, then upon delivery to the Trustee of
an Officers’ Certificate requesting execution of such an instrument,
accompanied by:


 


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(1)                                  all
instruments requested by the Issuer or such Subsidiary to effectuate or confirm
such release; and


 


(2)                                  such
other certificates and documents as the Trustee or Collateral Agent may request
to confirm the matters set forth in Section 10.10(a) or 10.10(b), as
applicable, that are required by this Indenture, the Collateral Documents and
the Intercreditor Agreement,


 


the Trustee will, if such
instruments and documents are satisfactory to the Trustee and Collateral Agent,
instruct the Collateral Agent to execute and deliver, and the Collateral Agent
will promptly execute and deliver, such instruments.  The Trustee or the Collateral Agent shall promptly
execute and deliver such instruments and cause to be released and reconveyed to
the Issuer, or its applicable Subsidiary, as the case may be, the released
Collateral.


 


(d)                                                To
the extent applicable, the Issuer will comply with Section 314(d) of
the TIA, relating to the release of property and to the substitution therefor
of any property to be pledged as Collateral for the Securities. Any certificate
or opinion required by Section 314(d) of the TIA may be made by an
officer of the Company except in cases where Section 314(d) requires
that such certificate or opinion be made by an independent engineer, appraiser
or other expert, who shall be reasonably satisfactory to the Trustee.
Notwithstanding anything to the contrary herein, the Issuer and its
Subsidiaries will not be required to comply with all or any portion of Section 314(d) of
the TIA if they determine, in good faith based upon an Opinion of Counsel
(which may be given by internal counsel), that under the terms of that section
and/or any interpretation or guidance as to the meaning thereof of the
Commission and its staff, including “no action” letters or exemptive orders,
all or any portion of Section 314(d) of the TIA is inapplicable to
the released Collateral.


 


(e)                                                 Any
release of Collateral permitted by Section 10.10 hereof or the Collateral
Documents or the Intercreditor Agreement will be deemed not to impair the Liens
under the Indenture and the Collateral Documents and the Intercreditor
Agreement in contravention thereof and any person that is required to deliver a
certificate or opinion pursuant to Section 314(d) of the TIA or
otherwise under this Indenture or the Collateral Documents or the Intercreditor
Agreement, shall be entitled to rely upon the foregoing as a basis for delivery
of such certificate or opinion. The Trustee may, to the extent permitted by Section 7.01
and 7.02 hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and opinion.


 


(f)   All purchasers and grantees of
any property or rights purporting to be released shall be entitled to rely upon
any release executed by the Trustee or Collateral Agent hereunder as sufficient
for the purpose of this Indenture and as constituting a good and valid release
of the property therein described from the Lien of the Collateral Documents.


 


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ARTICLE XI



SECURITY GUARANTEES


 


SECTION 11.01. 
Security Guarantees.


 


(a)                                  Each
Guarantor hereby jointly and severally unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (i) the full and punctual
payment of principal of, premium, if any, and interest on the Securities when
due, whether at maturity, by acceleration, by redemption or otherwise, subject
to any applicable grace period, and all other monetary obligations of the
Issuer under this Indenture (including obligations to the Trustee) and the
Securities and (ii) the full and punctual performance within applicable
grace periods of all other obligations of the Issuer, whether for expenses,
indemnification or otherwise under this Indenture and the Securities (all of
the foregoing being hereinafter collectively called the “Guaranteed
Obligations”).  Each Guarantor further
agrees that the Guaranteed Obligations may be extended or renewed, in whole or
in part, without notice or further assent from each such Guarantor, and that
each such Guarantor shall remain bound under this Article XI
notwithstanding any extension or renewal of any Guaranteed Obligation.


 


(b)                                 Each
Guarantor waives presentation to, demand of, payment from and protest to the
Issuer of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment.  Each Guarantor waives
notice of any default under the Securities or the Guaranteed Obligations.  The obligations of each Guarantor hereunder
shall not be affected by (i) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the Issuer
or any other Person under this Indenture, the Securities or any other agreement
or otherwise; (ii) any extension or renewal of any Guaranteed Obligations;
(iii) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement; (iv) the
release of any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (v) the failure of any Holder or Trustee to
exercise any right or remedy against any other guarantor of the Guaranteed
Obligations; or (vi) any change in the ownership of such Guarantor, except
as provided in Section 11.02(b).


 


(c)                                  Each
Guarantor further agrees that its Security Guarantee herein constitutes a
Guarantee of payment when due (and not a guarantee of collection) and waives
any right to require that any resort be had by any Holder or the Trustee to any
security held for payment of the Guaranteed Obligations.  The obligations of each Guarantor hereunder
shall not be subject to any reduction, limitation, impairment or termination
for any reason, including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality
or unenforceability of the Guaranteed Obligations or otherwise.  Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Securities or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, willful or otherwise, in the performance
of the Guaranteed Obligations, or by any other act or thing or omission or


 


80

















 


delay to do any other act or thing which may or might in any manner or
to any extent vary the risk of any Guarantor or would otherwise operate as a
discharge of any Guarantor as a matter of law or equity.


 


(d)                                 Each
Guarantor further agrees that its Security Guarantee herein shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Issuer or otherwise.


 


(e)                                  In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Issuer to pay the principal of or premium, if
any, or interest on any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Guaranteed Obligation, each Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount
equal to the sum of (i) the unpaid principal amount of such Guaranteed
Obligations, (ii) accrued and unpaid interest or premium, if any, on such
Guaranteed Obligations (but only to the extent not prohibited by law) and (iii) all
other monetary Guaranteed Obligations of the Issuer to the Holders and the
Trustee.


 


(f)                                    Each
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guaranteed Obligations guaranteed
hereby until payment in full of all Guaranteed Obligations.  Each Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of any Security
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (y) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article VI, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and
payable by such Guarantor for the purposes of this Section.


 


(g)                                 Each
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder
in enforcing any rights under this Section.


 


SECTION 11.02. 
Limitation on Liability; Release.


 


(a)                                  Any
term or provision of this Indenture to the contrary notwithstanding, the
maximum, aggregate amount of the obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be guaranteed (after giving
effect to all its Guarantees of Debt under the New Credit Facility) without
rendering this Indenture, as it relates to any Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.


 


(b)                                 In
the event of (i) a sale or other disposition of all or substantially all
of the assets of any Guarantor, by way of merger, consolidation or otherwise, (ii) the
sale or other disposition


 


81

















 


of Capital Stock of any Guarantor if as a result of such disposition,
such Person ceases to be a Subsidiary of the Issuer, then the Person acquiring
such assets (in the case of clause (i)) or such Guarantor (in the case of
clause (ii)) will be automatically released and relieved of any obligations
under its Security Guarantee and this Indenture; provided that such sale or other disposition is in
compliance with this Indenture, including Section 4.06 (it being
understood that only such portion of the Net Proceeds as is or is required to
be applied on or before the date of such release in accordance with the terms
of this Indenture needs to be so applied). 
It is expressly acknowledged that the application of the Net Proceeds of
any such sale or other disposition referred to in clause (i) or (ii) of
the first sentence of this subsection (b) in accordance with Section 4.06
following the date of such release shall not be a condition precedent to such
release and any failure to make such application as required by such Section 4.06
shall not cause the revocation of any such release (it being understood that
such failure shall constitute a Default or Event of Default, as applicable).


 


SECTION 11.03. 
Successors and Assigns. 
This Article XI shall be binding upon each Guarantor and its
successors and assigns and shall enure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.


 


SECTION 11.04. 
No Waiver.  Neither a
failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article XI shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege.  The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have under
this Article XI at law, in equity, by statute or otherwise.


 


SECTION 11.05. 
Modification.  No
modification, amendment or waiver of any provision of this Article XI, nor
the consent to any departure by any Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.  No
notice to or demand on any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.


 


ARTICLE XII



SUBORDINATION OF THE SECURITY GUARANTEES


 


SECTION 12.01. 
Agreement to Subordinate. 
Each Guarantor agrees, and each Holder by accepting a Security agrees,
that such Guarantor’s obligations under its Security Guarantee are subordinated
in right of payment, to the extent and in the manner provided in this Article XII,
to the prior payment in full in cash of all existing and future Designated
Senior Debt and that the subordination is for the benefit of and enforceable by
the holders of Designated Senior Debt. 
The obligations of a Guarantor under Article XI and this Article XII
shall in all respects rank pari  passu with all other Debt of such
Guarantor, and only Debt of such Guarantor that is Designated


 


82

















 


Senior Debt shall rank senior to the obligations of such Guarantor
under Article XI and this Article XII in accordance with the
provisions set forth herein. 
Notwithstanding anything to the contrary herein, the proceeds of the
First Lien Collateral and the rights appurtenant thereto shall not be subject
to the subordination provisions of this Indenture.  The proceeds of the Second Lien Collateral
and the rights appurtenant thereto shall be subject to the subordination and
other restrictive provisions of the Intercreditor Agreement.


 


SECTION 12.02. 
Liquidation, Dissolution, Bankruptcy.  Upon any payment or distribution to creditors
of any Guarantor in a total or partial liquidation or dissolution of such
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Guarantor or its property, an assignment
for the benefit of creditors or any marshaling of such Guarantor’s assets and liabilities,
the holders of Designated Senior Debt shall be entitled to receive payment in
full, in cash, of all Obligations due in respect of such Designated Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Designated Senior Debt, whether or not allowed or
allowable in such proceeding) before the Holders of Securities shall be
entitled to receive any payment with respect to the Security Guarantees, and
until all Obligations with respect to Designated Senior Debt are paid in full,
in cash, any payment or distribution to which the Holders of Securities would
be entitled but for these provisions shall be made to the holders of Designated
Senior Debt, except that Holders of may receive and retain Permitted Junior
Securities.  To the extent any payment of
principal of, premium, if any, or interest on any Designated Senior Debt
(whether by or on behalf of the Issuer, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then,
if such payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or similar Person, such Designated
Senior Debt or part thereof intended to be satisfied shall be deemed reinstated
and outstanding, as if such payment had not occurred.


 


SECTION 12.03. 
Default on Designated Senior Debt of a Guarantor.


 


(a)                                  A
Guarantor shall not make any payment or distribution upon or in respect of its
Security Guarantee if:


 


(1)                                  a
default in the payment of any Obligations with respect to Designated Senior
Debt of such Guarantor occurs and is continuing (a “payment default”); or


 


(2)                                  any
default, other than a payment default, occurs and is continuing with respect to
Designated Senior Debt that permits holders of the Designated Senior Debt as to
which such default relates to accelerate its maturity (or that would permit
such holders to accelerate with the giving of notice or the passage of time or
both) (a “non-payment default”) and, in the case of this clause (2) only,
the Trustee receives a notice of such default (a “Payment Blockage Notice”)
from the Issuer or a Representative for, or the holders of a majority of the
outstanding principal amount of, any issue of Designated Senior Debt.


 


(b)                                 Payments
on such Security Guarantee may and shall be resumed:


 


83














 


(1)                                  in
the case of a payment default, upon the date on which such default is cured or
waived and, in the case of Designated Senior Debt that has been accelerated,
such acceleration has been rescinded or such Designated Senior Debt has been
repaid in full; and


 


(2)                                  in
case of a non-payment default, the earliest of (I) the date on which such
non-payment default is cured or waived or is no longer continuing, (II) 179
days after the date on which such Payment Blockage Notice was received, unless
the maturity of any Designated Senior Debt has been accelerated, if these
provisions otherwise permit the payment, (III) the date on which the
Trustee receives notice from the Representative for such Designated Senior Debt
of the Guarantor rescinding the Payment Blockage Notice and (IV) the date
on which such Designated Senior Debt has been discharged or is repaid in full
in cash and all commitments thereunder have been terminated.


 


(c)                                  No
new period of payment blockage may be commenced on account of any non-payment
default unless and until (x) 360 days have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice and (y) all
scheduled payments of interest on the Securities that have come due have been
paid in full.  No non-payment default that
existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default has been waived for a period of at least 90
days.


 


(d)                                 Notwithstanding
any of the foregoing  to the contrary,
during any 360 day period, there must be a period of at least 180 days during
which there is no Payment Blockage Notice is in effect.  Any failure to make a payment due under the
Securities as a result of a Payment Blockage Notice shall not prevent any
commencement of any enforcement action against any Collateral in accordance
with the terms of the Intercreditor Agreement and the Collateral Documents.


 


SECTION 12.04.  Demand for Payment.  If payment of the Securities is accelerated
because of an Event of Default and a demand for payment is made on a Guarantor
pursuant to Article XI, the Trustee shall promptly notify the Issuer, and
the Issuer shall promptly (and in no event more than five Business Days after
receipt of such notice) notify the Representative of the lenders under the
Existing Credit Facilities of the acceleration.


 


SECTION 12.05. 
When Distribution Must Be Paid Over.


 


(a)                                  If
the Trustee, any Paying Agent or any Holder receives a payment in respect of
the Security Guarantee of any Guarantor (except in Permitted Junior Securities)
when:


 


(1)                                  the
payment is prohibited by this Article XII; and


 


(2)                                  the
Trustee, Paying Agent or the Holder has actual knowledge that the payment is
prohibited;


 


the Trustee or Holder, as
the case may be, shall hold the payment in trust for the benefit of the holders
of Designated Senior Debt of such Guarantor. 
Upon the proper written request of the holders of such Designated Senior
Debt, the Trustee or Holder, as the case may be, shall


 


84

















 


deliver the
amounts in trust to the holders of such Designated Senior Debt or their proper
Representative.


 


(b)                                 Notwithstanding
the foregoing, the Trustee or Paying Agent may continue to make payments on
such Security Guarantee and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than three Business Days prior to the date of such payment, a Trust
Officer of the Trustee or Paying Agent receives written notice satisfactory to
it that payments may not be made under this Article XII.  The Issuer, the Registrar or co-registrar,
the Paying Agent, a Representative or a holder of Designated Senior Debt of
such Guarantor may give the notice; provided, however, that, if
an issue of Designated Senior Debt of such Guarantor has a Representative, only
the Representative may give the notice. 
The Trustee or Paying Agent shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself or itself to be a
holder of any Designated Senior Debt of any Guarantor (or a Representative of
such holder) to establish that such notice has been given by a holder of such
Designated Senior Debt of such Guarantor or a Representative thereof.


 


SECTION 12.06.  Subrogation.  After all Designated Senior Debt of a
Guarantor is paid in full and until the Securities are paid in full, Holders
shall be subrogated to the rights of holders of Designated Senior Debt of such
Guarantor to receive distributions applicable to Designated Senior Debt of such
Guarantor.  A distribution made under
this Article XII to holders of Designated Senior Debt of such Guarantor
which otherwise would have been made to Holders is not, as between such
Guarantor and Holders, a payment by such Guarantor on Designated Senior Debt of
such Guarantor.


 


SECTION 12.07.  Relative Rights.  This Article XII defines the relative
rights of Holders and holders of Designated Senior Debt of a Guarantor.  Nothing in this Indenture shall:


 


(1)                                  impair,
as between a Guarantor and Holders, the obligation of a Guarantor which is
absolute and unconditional, to pay its Obligations under its Security Guarantee
to the extent set forth in Article XI; or


 


(2)                                  prevent
the Trustee or any Holder from exercising its available remedies upon a default
by a Guarantor under its Obligations under its Security Guarantee, subject to
the rights of holders of Designated Senior Debt of such Guarantor to receive
distributions otherwise payable to Holders.


 


SECTION 12.08.  Subordination May Not Be Impaired by
a Guarantor.  No right of any holder
of Designated Senior Debt of a Guarantor to enforce the subordination of the
Obligations under the Security Guarantee of such Guarantor shall be impaired by
any act or failure to act by such Guarantor or by its failure to comply with
this Indenture.


 


SECTION 12.09.  Rights of Trustee and Paying Agent.  The Trustee (or any authenticating agent
hereunder) in its individual or any other capacity may hold Designated Senior
Debt of any Guarantor with the same rights it would have if it were not Trustee
(or authenticating agent hereunder).  The
Registrar and any co-registrar and any Paying Agent may do the same with like
rights.  The Trustee (and any authenticating
agent hereunder), the


 


85

















 


Registrar, any
co-registrar and any Paying Agent shall be entitled to all the rights set forth
in this Article XII with respect to any Designated Senior Debt of any
Guarantor which may at any time be held by them, to the same extent as any
other holder of Designated Senior Debt of such Guarantor; and nothing in Article VII
shall deprive the Trustee (or any authenticating agent hereunder) or any such
other Person of any of its rights as such holder.  Nothing in this Article XII shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 7.07.


 


SECTION 12.10.  Distribution or Notice to Representative.  Whenever a distribution is to be made or a
notice given to holders of Designated Senior Debt of a Guarantor, the
distribution may be made and the notice given to their Representative (if any).


 


SECTION 12.11.  Article XII Not to Prevent Events of
Default or Limit Right to Accelerate. 
The failure of a Guarantor to make a payment on any of its Obligations
under its Security Guarantee by reason of any provision in this Article XII
shall not be construed as preventing the occurrence of a default by such
Guarantor under its Security Guarantee. 
Nothing in this Article XII shall have any effect on the right of
the Holders or the Trustee to make a demand for payment on a Guarantor pursuant
to this Article XII.


 


SECTION 12.12.  Trustee Entitled To Rely.  Upon any payment or distribution pursuant to
this Article XII, the Trustee, any Paying Agent and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Designated
Senior Debt of a Guarantor for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Designated
Senior Debt of a Guarantor and other Debt of a Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XII.  In the event that the Trustee or Paying Agent
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Designated Senior Debt of a Guarantor to
participate in any payment or distribution pursuant to this Article XII,
the Trustee or Paying Agent may request such Person to furnish evidence to the
satisfaction of the Trustee or Paying Agent as to the amount of Designated
Senior Debt of such Guarantor held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article XII, and,
if such evidence is not furnished, the Trustee or Paying Agent may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. 
Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee or Paying Agent pursuant to this Article XII.


 


SECTION 12.13.  Trustee To Effectuate Subordination.  Each Holder by accepting a Security
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination between
the Holders and the holders of Designated Senior Debt of each of the Guarantors
as provided in this Article XII and appoints the Trustee as
attorney-in-fact for any and all such purposes.


 


86

















 


SECTION 12.14.  Trustee Not Fiduciary for Holders of
Designated Senior Debt of a Guarantor. 
With respect to the holders of Designated Senior Debt of the Guarantors,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XII.  The Trustee or Paying Agent shall not be
deemed to owe any fiduciary or other duty to the holders of Designated Senior
Debt of a Guarantor and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Holders or the relevant Guarantor or any
other Person, money or assets to which any holders of Designated Senior Debt of
such Guarantor shall be entitled by virtue of this Article XII or
otherwise.


 


SECTION 12.15.  Reliance by Holders of Designated Senior
Debt of a Guarantor on Subordination Provisions.  Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Designated Senior Debt of a Guarantor, whether such Designated Senior Debt was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Designated Senior Debt and
such holder of Designated Senior Debt shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Designated Senior Debt.


 


ARTICLE XIII



MISCELLANEOUS


 


SECTION 13.01.  TIA Controls.  If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.


 


SECTION 13.02.  Notices.  Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:


 


if to the Issuer:


 


FLEETWOOD ENTERPRISES,
INC.

3125 Myers Street

Riverside, California 92503

Attention:  Leonard J. Mc Gill, General
Counsel


 


with copies to:


 


Gibson, Dunn &
Crutcher, LLP

200 Park Avenue

New York, NY 10166

Attention: Robert L. Cunningham, Jr.


 


87

















 


if to the Trustee:


 


[           ]


[           ]


[           ]


Telecopier no.: [           ]

Attention of:  [           ]


 


The Issuer or the Trustee
by notice to the other may designate additional or different addresses for
subsequent notices or communications.


 


Any notice or
communication mailed to a Holder shall be made in compliance with Section 313(c) of
the TIA and mailed to the Holder at the Holder’s address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.


 


Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. 
If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.


 


The Trustee agrees to
accept and act upon instructions or directions pursuant to this Indenture sent
by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such
written instructions, subsequent to such transmission of written instructions,
shall provide the originally executed instructions or directions to the Trustee
in a timely manner, and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party
providing such instructions or directions. 
If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its
discretion elects to act upon such instructions, the Trustee’s understanding of
such instructions shall be deemed controlling. 
The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction.  The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.


 


SECTION 13.03.  Communication by Holders with Other
Holders.  Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. 
The Issuer, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).


 


SECTION 13.04.  Certificate and Opinion as to Conditions
Precedent.  Upon any request or
application by the Issuer to the Trustee to take or refrain from taking any
action under this Indenture, at the request of the Trustee the Issuer shall
furnish to the Trustee:


 


88

















 


(1)                                  an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05)
stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied
with; and


 


(2)                                  an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 13.05) stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.


 


To the extent applicable,
the Issuer shall comply with Section 314(c)(3) of the TIA.


 


SECTION 13.05.  Statements Required in Certificate or
Opinion.  Each certificate or opinion
with respect to compliance with a covenant or condition provided for in this
Indenture shall include:


 


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


 


(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 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 or
satisfied; and


 


(4)                                  a
statement as to whether or not, in the opinion of such individual, such
covenant or condition has been complied with.


 


SECTION 13.06.  When Securities Disregarded.  In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Issuer or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee actually knows are so owned shall be so disregarded.  Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.


 


SECTION 13.07.  Rules by Trustee, Paying Agent and
Registrar.  The Trustee may make
reasonable rules for action by or a meeting of Holders.  The Registrar and the Paying Agent may make
reasonable rules for their functions.


 


SECTION 13.08.  Legal Holidays.  A “Legal Holiday” is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in
the State of New York or the state where the Corporate Trust Office is
located.  If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.  If a regular record date is a Legal Holiday,
the record date shall not be affected.


 


89

















 


SECTION 13.09.  GOVERNING LAW.  THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


SECTION 13.10.  No Recourse Against Others.  No past, present or future director, officer,
employee, incorporator, agent or stockholder or Affiliate of the Issuer, as
such, shall have any liability for any obligations of the Issuer or any
Guarantor under the Securities, this Indenture, the Collateral Documents, the
Intercreditor Agreement or for any claim based on, in respect of, or by reason
of, such obligations or their creation. 
By accepting a Security, each Holder waives and releases all such liabilities.  The waiver and release shall be part of the
consideration for issuance of the Securities and the Security Guarantees.


 


SECTION 13.11. Further
Instruments and Acts


 


Upon request of the
Trustee, or as otherwise reasonably necessary, the Issuer shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this
Indenture.


 


SECTION 13.12.  Successors.  All agreements of the Issuer and each
Guarantor in this Indenture and the Securities shall bind their
successors.  All agreements of the
Trustee in this Indenture shall bind its successors.


 


SECTION 13.13.  Multiple Originals.  The parties may sign any number of copies of
this Indenture.  Each signed copy shall
be an original, but all of them together represent the same agreement.  One signed copy is enough to prove this
Indenture.


 


SECTION 13.14.  Table of Contents; Headings.  The table of contents, cross-reference sheet
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.


 


SECTION 13.15.  Severability.  In case any one or more of the provisions in
this Indenture, in the Securities or in the Security Guarantees shall be held
invalid, illegal or unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.


 


SECTION 13.16.  No Adverse Interpretation of Other
Agreements.  This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Issuer or
any of its Subsidiaries.  Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


90

















 


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


 


	
  ISSUER

  	
  FLEETWOOD ENTERPRISES,
  INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
	
   

  	
   

  
	
  INITIAL GUARANTORS

  	
  FLEETWOOD HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  ARIZONA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  CALIFORNIA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  FLORIDA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  GEORGIA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  IDAHO, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  INDIANA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  KENTUCKY, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  NORTH CAROLINA,

  
	
   

  	
  INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  OREGON, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  PENNSYLVANIA,

  
	
   

  	
  INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  TENNESSEE, INC.

  



 


91

















 


	
   

  	
  FLEETWOOD HOMES OF
  TEXAS, L.P.

  
	
   

  	
  By: FLEETWOOD GENERAL
  PARTNER OF

  
	
   

  	
  TEXAS, INC., its
  General Partner

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  VIRGINIA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES OF
  WASHINGTON, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD MOTOR HOMES
  OF CALIFORNIA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD MOTOR HOMES
  OF INDIANA,

  
	
   

  	
  INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD MOTOR HOMES
  OF

  
	
   

  	
  PENNSYLVANIA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF

  
	
   

  	
  CALIFORNIA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF

  
	
   

  	
  INDIANA, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF

  
	
   

  	
  KENTUCKY, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF

  
	
   

  	
  MARYLAND, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF OHIO,

  
	
   

  	
  INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF

  
	
   

  	
  OREGON, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD TRAVEL
  TRAILERS OF TEXAS,

  
	
   

  	
  INC.

  



 


92

















 


	
   

  	
  GOLD SHIELD, INC.

  
	
   

  	
   

  
	
   

  	
  GOLD SHIELD OF INDIANA,
  INC.

  
	
   

  	
   

  
	
   

  	
  HAUSER LAKE LUMBER
  OPERATION, INC.

  
	
   

  	
   

  
	
   

  	
  CONTINENTAL LUMBER
  PRODUCTS, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD GENERAL
  PARTNER OF

  
	
   

  	
  TEXAS, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD HOMES
  INVESTMENT, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  FLEETWOOD CANADA LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
  [TRUSTEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  



 


93

















 


SCHEDULE A


 


DEBT EXISTING ON
THE ISSUE DATE


 


	
  Lender / Holder of Debt

  	
   

  	
  Description

  	
   

  	
  Principal Amount (000’s)

  (plus deferred interest, if 

  applicable)(1)

  
	
  Various
  Noteholders

  	
   

  	
  6% Subordinated Debentures
  due 2028 (including deferred interest thereon)

  	
   

  	
  [$164,942]

  
	
  Various
  Noteholders

  	
   

  	
  5% Convertible
  Senior Subordinated Notes due 2023

  	
   

  	
  [Outstanding
  amount on Issue Date depends on acceptance rate]

  
	
  ISIS Lending,
  LLC

  	
   

  	
  9.95% Mortgage
  Loan due 9/1/2011

  	
   

  	
  [$27,235]

  



 






 (1)                               Principal amounts in
this form of indenture are subject to adjustment to reflect the principal
amounts outstanding on the Issue Date.


 

















 


SCHEDULE B


 


ASSETS HELD FOR
SALE


 


	
  Plant No.

  	
   

  	
  Address

  	
   

  	
  City, State

  	
   

  	
  Land

  Acreage

  	
   

  	
  Year Built

  	
   

  	
  Building

  Sq. Ft.

  	
   

  
	
  26-1

  	
   

  	
  1720 Pleasant

  Grove Drive

  	
   

  	
  Westmoreland, TN

  	
   

  	
  38.55

  	
   

  	
  1986

  	
   

  	
  143,260

  	
   

  
	
  34-1

  	
   

  	
  Railroad Street

  	
   

  	
  Pearson, GA

  	
   

  	
  13.32

  	
   

  	
  1982

  	
   

  	
  133,189

  	
   

  
	
  71

  	
   

  	
  925 Bottle Drive

  	
   

  	
  Paxinos, PA

  	
   

  	
  7.08

  	
   

  	
  1974

  	
   

  	
  38,280

  	
   

  
	
  40

  	
   

  	
  901 Fisher Road

  	
   

  	
  Longview, TX

  	
   

  	
  46.66

  	
   

  	
  1999

  	
   

  	
  349,915

  	
   

  
	
  Raw Land

  	
   

  	
  Airport Drive

  	
   

  	
  Wichita Falls, TX

  	
   

  	
  62

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  



 

















 


SCHEDULE C


 


LIFE INSURANCE
POLICIES


 


	
  Insurer

  	
   

  	
  Policy

  
	
  The Prudential
  Insurance Company of America

  	
   

  	
  Split-dollar life
  insurance policy # 79782810

  
	
  John Hancock Life
  Insurance Company

  	
   

  	
  Split-dollar life
  insurance policy # 08001248-7

  
	
  Midwestern United Life
  Insurance Company

  	
   

  	
  Split-dollar life
  insurance policy # 001047396

  



 














 


EXHIBIT A


 


[FORM OF SECURITY]


 


FLEETWOOD ENTERPRISES, INC.


 


14% SENIOR SECURED NOTE DUE 2011


 


	
  No.

  	
  CUSIP No.

  
	
   

  	
  $                     

  



 


FLEETWOOD ENTERPRISES, INC., a DELAWARE corporation
(the “Issuer”), promises to pay to
                              ,
or its registered assigns, the principal sum of
                    
in U.S. Dollars on DECEMBER 15, 2011.


 


	
  Interest 

  	
   

  	
  March 15, June 15, September 15 and December 15

  
	
  Payment Dates:

  	
   

  	
  of each year, commencing on March 15, 2009

  
	
  Record Dates:

  	
   

  	
  February 28 (or February 29, if applicable), May 31,
  August 31

  
	
   

  	
   

  	
  and November 30

  



 


Additional provisions of this Security are set forth
on the other side of this Security.


 


	
   

  	
  FLEETWOOD ENTERPRISES, INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  Dated:

  	
   

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


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

as Trustee, certifies that this is one of the

Securities referred to in the Indenture,                                                                                 [Seal]


 


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
        Authorized
  Signatory

  



 


A-1

















 


[FORM OF REVERSE SIDE OF SECURITY]


 


14% Senior Secured Note due 2011


 


1.                                       Interest


 


FLEETWOOD ENTERPRISES, INC., a DELAWARE corporation
(the “Issuer”), promises to pay interest on the principal amount of this
Security at the rate per annum shown above.


 


The Issuer shall pay interest quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, commencing
on March 15, 2009.  Interest on this
Security will accrue from the most recent date to which interest has been paid
on this Security (or, if there is no existing default in the payment of
interest and if this Security is authenticated between a regular record date
and the next interest payment date, from such interest payment date) or, if no
interest has been paid, from the date the Security was issued.  Interest shall be computed on the basis of a
360-day year comprised of twelve 30-day months. 
The Issuer shall pay interest on overdue principal at the rate of 1% in
excess of the rate otherwise borne by this Security, and it shall pay interest
on overdue installments of interest at the same rate to the extent lawful, in
each case in the form of PIK Securities.


 


Interest on this Security will be paid with a
combination of cash “Cash Interest”) and by [[increasing the principal
amount of this Security] [IF THIS SECURITY IS A GLOBAL SECURITY]][[issuing PIK
Securities][IF THIS SECURITY IS A CERTIFICATED SECURITY]] “PIK Interest”)
that will accrue interest at the same rate per annum as the Notes offered
hereby. Cash Interest on the Notes will accrue at the rate of 5% per annum and
PIK Interest on the Notes will accrue at the rate of 9% per annum.


 


PIK Interest on the Notes will be payable [by
increasing the principal amount of the outstanding Global Note by an amount
equal to the amount of PIK Interest for the applicable period (rounded up to
the nearest $1,000)][by issuing PIK Securities in certificated form in an
aggregate principal amount equal to the amount of PIK Interest for the
applicable period (rounded up to the nearest whole dollar)]. [Following an
increase in the principal amount of this Security as a result of a PIK Payment,
this Security will bear interest on such increased principal amount from and
after the date of such PIK Payment.]


 


2.                                       Method
of Payment


 


The Issuer shall pay interest (except defaulted
interest) on this Security to the Person who is the registered holder of this
Security at the close of business on February 28 (or February 29, if
applicable), May 31, August 31, and November 30 immediately
preceding the interest payment date even if this Security is canceled after the
record date and on or before the interest payment date.  The Holder must surrender this Security to a
Paying Agent to collect principal payments. 
The Issuer shall pay principal and Cash Interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts.  However, the Issuer may
pay principal and Cash Interest by check payable in such money or by wire
transfer of federal funds; provided that all payments of principal and Cash
Interest with respect to the Security the Holder


 


A-2

















 


of which has given wire
transfer instructions to the Issuer shall be made by wire transfer of
immediately available funds to the account specified by such Holder.


 


3.                                       Paying
Agent and Registrar


 


Initially, [           ]
(the “Trustee”) shall act as Paying Agent and Registrar.  The Issuer may appoint and change any Paying
Agent, Registrar or co-registrar without notice to the Holders.  The Issuer or any domestically organized
Subsidiary may act as Paying Agent, Registrar or co-registrar.


 


4.                                       Indenture


 


The Issuer issued this Security under an Indenture
dated as of
[                ]
(the “Indenture”), among the Issuer, the Initial Guarantors and the
Trustee.  Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the
Indenture.  The terms of this Security include
those stated in the Indenture and those made part of the Indenture by reference
to the TIA.   This Security is subject to
all such terms, and the Holder hereof is referred to the Indenture and the TIA
for a statement of those terms.   To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Security and the terms of the Indenture, the terms of the
Indenture will control.


 


The Securities are secured senior obligations of the
Issuer and Securities to be issued on the Issue Date are limited to
[          ].  Subject to the conditions set forth in the
Indenture, the Issuer may issue PIK Securities and up to [          ]
of Additional Securities.  This Security
is one of the [Initial Securities/Additional Securities/PIK Securities]
referred to in the Indenture.  The
Securities include the Initial Securities, the Additional Securities and any
PIK Securities pursuant to the Indenture. 
The Initial Securities, the Additional Securities and the PIK Securities
are treated as a single class of securities under the Indenture.


 


The Guarantors have, jointly and severally,
unconditionally guaranteed the Guaranteed Obligations on a senior subordinated
basis pursuant to the terms of the Indenture.


 


5.                                       Optional
Redemption


 


This Security is subject to optional redemption, and
may be the subject of a Repurchase Offer, as further described in the
Indenture.  Except for certain required
Repurchase Offers, there is no sinking fund or mandatory redemption applicable
to this Security.


 


6.                                       Denominations;
Transfer; Exchange


 


The Securities other than PIK Securities are in
registered form without coupons in denominations of $1,000 and whole multiples
of $1,000.  A Holder may transfer or
exchange Securities in accordance with the Indenture.  Upon any transfer or exchange, the Registrar
and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture.  The
Registrar need not register the transfer or exchange of any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be


 


A-3

















 


redeemed) or transfer or
exchange any Securities for a period of 15 days prior to a selection of
Securities to be redeemed or 15 days before an interest payment date.


 


7.                                       Persons
Deemed Owners


 


The registered Holder of this Security may be treated
as the owner of it for all purposes.


 


8.                                       Unclaimed
Money


 


If money for the payment of principal or interest
remains unclaimed for two years, the Paying Agent shall pay the money back to
the Issuer at its request, or if then held by the Issuer or a Subsidiary, shall
be discharged from such trust (unless an abandoned property law designates
another Person for payment thereof). 
After any such payment, Holders entitled to the money must look only to
the Issuer for payment thereof, and all liability of the Paying Agent with
respect to such money, and all liability of the Issuer or such permitted
Subsidiary as trustee thereof, shall thereupon cease.


 


9.                                       Discharge
and Defeasance


 


Subject to certain conditions set forth in the
Indenture, the Issuer at any time may terminate some or all of its obligations
under the Indenture, the Security Guarantees and the Securities if the Issuer
deposits with the Trustee money or Government Notes for the payment of
principal and interest on the Securities to redemption or maturity, as the case
may be.


 


10.                                 Amendment,
Waiver


 


Subject to certain exceptions, the Indenture and the
Securities may be amended, or and defaults may be waived, with the consent of
the Holders of a majority in principal amount of the outstanding
Securities.  Without notice to or the consent
of any Holder, the Issuer and the Trustee may amend or supplement the Indenture
or the Securities to, among other things, cure any ambiguity, defect or
inconsistency.


 


11.                                 Defaults
and Remedies


 


If an Event of Default, as defined in the Indenture, occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities may declare all the Securities to be due and
payable.  If a bankruptcy or insolvency
Event of Default with respect to the Issuer, Guarantor or Subsidiary of the
Issuer that is a Significant Subsidiary occurs and is continuing, the
Securities automatically become due and payable.  Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. 
The Trustee may require indemnity satisfactory to it before it enforces
the Indenture or the Securities.  Subject
to certain limitations, Holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of remedies.


 


12.                                 No
Personal Liability of Directors, Officers, Employees and Stockholders


 


No past, present or future director, officer,
employee, incorporator, agent or stockholder or Affiliate of the Issuer, as
such, shall have any liability for any obligations of the Issuer under


 


A-4

















 


the Securities, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. No past, present or future director, officer,
employee, incorporator, agent or stockholder or Affiliate of any of the
Guarantors, as such, shall have any liability for any obligations of the
Guarantors under the Security Guarantees, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities and Security Guarantees by accepting a Security and a
Security Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Securities and the
Security Guarantees. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such a waiver is against public policy.


 


13.                               Governing
Law


 


THE SECURITIES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


15.                                 Authentication


 


This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.


 


16.                                 Abbreviations


 


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


 


The Issuer shall furnish to any
Holder upon written request and without charge to the Holder a copy of the
Indenture.  Requests may be made to:


 


FLEETWOOD
ENTERPRISES, INC.

3125 Myers Street

Riverside, California 92503

Attention:  Leonard J. Mc Gill, General
Counsel


 


A-5

















 


ASSIGNMENT FORM


 


To assign this Security, fill in the form below:


I or we assign and transfer this Security to


 




 





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


 




 





(Insert assignee’s
soc. sec. or tax I.D. No.)


 


and irrevocably appoint
                                                                  
agent to transfer this Security on the books of the Issuer.  The agent may substitute another to act for
him.


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  



 


	
  Signature

  
	
  Guarantee:

  	
   

  



(Signature must be
guaranteed by a participant in a

recognized signature guarantee medallion program)


 




 





Sign exactly as
your name appears on the other side of this Security.


 


A-6

















 


SCHEDULE OF EXCHANGES OF
SECURITIES(2)


 


The following exchanges of a part of this Global
Security for Physical Securities or a part of another Global Security have been
made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of decrease

  in principal amount

  of this Global

  Security

  	
   

  	
  Amount of increase

  in principal amount

  of this Global

  Security

  	
   

  	
  Principal amount of

  this Global Security

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized officer of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(2)          For
Global Securities.


 


A-7

















 


OPTION OF HOLDER
TO ELECT PURCHASE


 


If you want to elect to have this Security purchased
by the Issuer pursuant to Section 4.06, Section 4.07 or Section 4.09
of the Indenture, check the box:


 


o  4.06 Asset Sale


o  4.07 Event of Loss


o  4.09 Change of Control


 


If you want to elect to have only part of this
Security purchased by the Issuer pursuant to Section 4.06, Section 4.07
or Section 4.09 of the Indenture, state the amount: 
$                    .


 


	
   

  	
  Date:

  	
   

  	
   

  	
  Your Signature:

  
	
   

  	
  (Sign exactly as your name appears

  
	
   

  	
  on the other side of the Security)

  



 


Tax I.D. number


 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
   (Signature must be guaranteed by a

  
	
   

  	
   participant in a recognized signature

  
	
   

  	
   guarantee medallion program)

  



 


A-8

















 


EXHIBIT B


 


DTC LEGEND


 


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 A BENEFICIAL
INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER
PROVISIONS OF THE INDENTURE.


 


B-1

















 


EXHIBIT C


 


SUPPLEMENTAL INDENTURE


 


dated as of
                      ,


 


among


 


FLEETWOOD ENTERPRISES, INC.,


 


The Guarantor(s) Party Hereto


 


and


 


[           ]


 


as Trustee


 






 


14% Senior Secured Notes due
2011


 

















 


THIS SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), entered into as of
                    ,
        , among FLEETWOOD
ENTERPRISES, INC., a DELAWARE corporation (the “Issuer”), the existing
Guarantors (each an “Existing Guarantor”), [insert name of each Guarantor
executing this Supplemental Indenture and its jurisdiction of incorporation]
(each an “Additional Guarantor”) and [TRUSTEE] a
                          
(the “Trustee”).


 


RECITALS


 


A.                                   The Issuer, the Existing Guarantors
party thereto and the Trustee entered into the Indenture, dated as of [     ] (the “Indenture”),
relating to the Issuer’s 14% Senior Secured Notes due 2011 (the “Securities”);


 


B.                                     As a condition to the Trustee entering
into the Indenture and the purchase of the Securities by the Holders, the
Issuer agreed pursuant to the Indenture to cause any newly acquired or created
Domestic Subsidiaries that become a borrower or guarantor under Credit
Facilities or any existing Domestic Subsidiary that had not previously been a
borrower or guarantor under the Credit Facilities and becomes a borrower or
guarantor thereunder to provide Security Guarantees, except in certain
circumstances.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants herein contained and
intending to be legally bound, the parties to this Supplemental Indenture
hereby agree as follows:


 


Section 1.
Capitalized teams used herein and not otherwise defined herein are used as
defined in the Indenture.


 


Section 2.
Each Additional Guarantor, by its execution of this Supplemental Indenture,
agrees to be a Guarantor under the Indenture and to be bound by the terms of
the Indenture applicable to Guarantors, including, but not limited to, Article XI
thereof.


 


Section 3. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 4.
This Supplemental Indenture may be signed in various counterparts which
together will constitute one and the same instrument.


 


Section 5.  The Indenture (including the Security Guarantees
of the Existing Guarantors), as amended hereby, is hereby confirmed and shall
remain in full force and effect.


 

















 


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


 


	
   

  	
  FLEETWOOD
  ENTERPRISES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [ADDITIONAL
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [EXISTING
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: