Exhibit 4.1


 


Execution Version




 





 


 


Valmont Industries, Inc.

as the Company




The Subsidiary
Guarantors Named Herein

as the Subsidiary Guarantors




and



Wells Fargo Bank, National Association

as the Trustee




 











 Senior Indenture



Dated as of April 12, 2010








 




 





 

















 


TABLE OF CONTENTS


 






 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  



 


	
  Section 1.01. Definitions

  	
   

  	
  1

  
	
  Section 1.02. Other Definitions

  	
   

  	
  6

  
	
  Section 1.03. Incorporation by Reference of Trust Indenture Act

  	
   

  	
  6

  
	
  Section 1.04. Rules of Construction

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  THE
  SECURITIES

  
	
   

  
	
  Section 2.01. Form and Dating

  	
   

  	
  7

  
	
  Section 2.02. Execution And Authentication

  	
   

  	
  8

  
	
  Section 2.03. Amount Unlimited; Issuable in Series

  	
   

  	
  10

  
	
  Section 2.04. Denomination and Date of Securities; Payments of
  Interest

  	
   

  	
  13

  
	
  Section 2.05. Registrar and Paying Agent; Agents Generally

  	
   

  	
  13

  
	
  Section 2.06. Paying Agent to Hold Money in Trust

  	
   

  	
  14

  
	
  Section 2.07. Transfer and Exchange

  	
   

  	
  14

  
	
  Section 2.08. Replacement Securities

  	
   

  	
  18

  
	
  Section 2.09. Outstanding Securities

  	
   

  	
  19

  
	
  Section 2.10. Temporary Securities

  	
   

  	
  19

  
	
  Section 2.11. Cancellation

  	
   

  	
  20

  
	
  Section 2.12. CUSIP Numbers

  	
   

  	
  20

  
	
  Section 2.13. Defaulted Interest

  	
   

  	
  20

  
	
  Section 2.14. Series May Include Tranches

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  REDEMPTION

  
	
   

  
	
  Section 3.01. Applicability of Article

  	
   

  	
  21

  
	
  Section 3.02. Notice of Redemption; Partial Redemptions

  	
   

  	
  21

  
	
  Section 3.03. Payment Of Securities Called For Redemption

  	
   

  	
  24

  
	
  Section 3.04. Exclusion of Certain Securities from Eligibility
  for Selection for Redemption

  	
   

  	
  24

  
	
  Section 3.05. Mandatory and Optional Sinking Funds

  	
   

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  COVENANTS

  
	
   

  
	
  Section 4.01. Payment of Securities

  	
   

  	
  27

  
	
  Section 4.02. Maintenance of Office or Agency

  	
   

  	
  29

  



 


i

















 


	
  Section 4.03. Securityholders’ Lists

  	
   

  	
  29

  
	
  Section 4.04. Certificate to Trustee

  	
   

  	
  30

  
	
  Section 4.05. Reports by the Company

  	
   

  	
  30

  
	
  Section 4.06. Additional Amounts

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  SUCCESSOR CORPORATION

  
	
   

  
	
  Section 5.01. When Company May Merge, Etc.

  	
   

  	
  31

  
	
  Section 5.02. Successor Substituted

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  DEFAULT AND REMEDIES

  
	
   

  
	
  Section 6.01. Events of Default

  	
   

  	
  33

  
	
  Section 6.02. Acceleration

  	
   

  	
  34

  
	
  Section 6.03. Other Remedies

  	
   

  	
  36

  
	
  Section 6.04. Waiver of Past Defaults

  	
   

  	
  36

  
	
  Section 6.05. Control by Majority

  	
   

  	
  36

  
	
  Section 6.06. Limitation on Suits

  	
   

  	
  36

  
	
  Section 6.07. Rights of Holders to Receive Payment

  	
   

  	
  37

  
	
  Section 6.08. Collection Suit by Trustee

  	
   

  	
  37

  
	
  Section 6.09. Trustee May File Proofs of Claim

  	
   

  	
  38

  
	
  Section 6.10. Application of Proceeds

  	
   

  	
  38

  
	
  Section 6.11. Restoration of Rights and Remedies

  	
   

  	
  39

  
	
  Section 6.12. Undertaking for Costs

  	
   

  	
  39

  
	
  Section 6.13. Rights and Remedies Cumulative

  	
   

  	
  40

  
	
  Section 6.14. Delay or Omission not Waiver

  	
   

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  TRUSTEE

  
	
   

  
	
  Section 7.01. General

  	
   

  	
  40

  
	
  Section 7.02. Certain Rights of Trustee

  	
   

  	
  40

  
	
  Section 7.03. Individual Rights of Trustee

  	
   

  	
  42

  
	
  Section 7.04. Trustee’s Disclaimer

  	
   

  	
  43

  
	
  Section 7.05. Notice of Default

  	
   

  	
  43

  
	
  Section 7.06. Reports by Trustee to Holders

  	
   

  	
  43

  
	
  Section 7.07. Compensation and Indemnity

  	
   

  	
  44

  
	
  Section 7.08. Replacement of Trustee

  	
   

  	
  45

  
	
  Section 7.09. Acceptance of Appointment by Successor

  	
   

  	
  45

  
	
  Section 7.10. Successor Trustee By Merger, Etc.

  	
   

  	
  47

  
	
  Section 7.11. Eligibility

  	
   

  	
  47

  
	
  Section 7.12. Money Held in Trust

  	
   

  	
  47

  



 


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  ARTICLE 8

  SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS

  
	
   

  
	
  Section 8.01. Satisfaction and Discharge of Indenture

  	
   

  	
  47

  
	
  Section 8.02. Application by Trustee of Funds Deposited for
  Payment of Securities

  	
   

  	
  48

  
	
  Section 8.03. Repayment of Moneys Held by Paying Agent

  	
   

  	
  48

  
	
  Section 8.04. Return of Moneys Held by Trustee and Paying Agent
  Unclaimed for Two Years

  	
   

  	
  49

  
	
  Section 8.05. Defeasance and Discharge of Indenture

  	
   

  	
  49

  
	
  Section 8.06. Defeasance of Certain Obligations

  	
   

  	
  50

  
	
  Section 8.07. Reinstatement

  	
   

  	
  52

  
	
  Section 8.08. Indemnity

  	
   

  	
  52

  
	
  Section 8.09. Excess Funds

  	
   

  	
  52

  
	
  Section 8.10. Qualifying Trustee

  	
   

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  
	
  Section 9.01. Without Consent of Holders

  	
   

  	
  53

  
	
  Section 9.02. With Consent of Holders

  	
   

  	
  53

  
	
  Section 9.03. Revocation and Effect of Consent

  	
   

  	
  55

  
	
  Section 9.04. Notation on or Exchange of Securities

  	
   

  	
  55

  
	
  Section 9.05. Trustee to Sign Amendments, Etc.

  	
   

  	
  56

  
	
  Section 9.06. Conformity with Trust Indenture Act

  	
   

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  SUBSIDIARY GUARANTIES

  
	
   

  
	
  Section 10.01. Applicability of Article

  	
   

  	
  56

  
	
  Section 10.02. Subsidiary Guaranties

  	
   

  	
  56

  
	
  Section 10.03. Limitation on Liability

  	
   

  	
  58

  
	
  Section 10.04.
  Successors and Assigns

  	
   

  	
  58

  
	
  Section 10.05.
  No Waiver

  	
   

  	
  59

  
	
  Section 10.06.
  Modification

  	
   

  	
  59

  
	
  Section 10.07.
  Release of Subsidiary Guarantor

  	
   

  	
  59

  
	
  Section 10.08.
  Contribution

  	
   

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  MISCELLANEOUS

  
	
   

  
	
  Section 11.01. Trust Indenture Act of 1939

  	
   

  	
  60

  
	
  Section 11.02. Notices

  	
   

  	
  60

  
	
  Section 11.03. Certificate and Opinion as to Conditions
  Precedent

  	
   

  	
  61

  
	
  Section 11.04. Statements Required in Certificate or Opinion

  	
   

  	
  62

  
	
  Section 11.05. Evidence of Ownership

  	
   

  	
  62

  
	
  Section 11.06. Rules by Trustee, Paying Agent or Registrar

  	
   

  	
  63

  



 


iii

















 


	
  Section 11.07. Payment Date Other Than a Business Day

  	
   

  	
  63

  
	
  Section 11.08. Governing Law

  	
   

  	
  63

  
	
  Section 11.09. No Adverse Interpretation of Other Agreements

  	
   

  	
  63

  
	
  Section 11.10. Successors

  	
   

  	
  63

  
	
  Section 11.11. Duplicate Originals

  	
   

  	
  63

  
	
  Section 11.12. Separability

  	
   

  	
  63

  
	
  Section 11.13. Table of Contents, Headings, Etc.

  	
   

  	
  64

  
	
  Section 11.14. Incorporators, Stockholders, Officers and Directors
  of Company Exempt from Individual Liability

  	
   

  	
  64

  
	
  Section 11.15. Judgment Currency

  	
   

  	
  64

  
	
  Section 11.16. Waiver of Jury Trial

  	
   

  	
  65

  
	
  Section 11.17.
  Force Majeure

  	
   

  	
  65

  



 


iv
















 


SENIOR INDENTURE, dated as of April 12, 2010,
between Valmont Industries, Inc., a Delaware corporation, as the Company,
the Subsidiary Guarantors from time to time party hereto, and Wells Fargo Bank,
National Association, a national banking association, as the Trustee.


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company has duly authorized the issue
from time to time of its senior debentures, notes or other evidences of
indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company and the Subsidiary Guarantors
have duly authorized the execution and delivery of this Indenture; and


 


WHEREAS, all things necessary to make this Indenture
a valid indenture and agreement according to its terms have been done;


 


NOW, THEREFORE:


 


In consideration of the premises and the purchases
of the Securities by the holders thereof, the Company, the Subsidiary
Guarantors and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time of the
Securities or of any and all series thereof and of the coupons, if any,
appertaining thereto as follows:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.  Definitions.


 


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


 


“Agent”
means any Depositary Custodian, Registrar, Paying Agent, transfer agent or
Authenticating Agent.


 


“Applicable Procedures”
means, with respect to any payment, tender, redemption, transfer or transaction
involving a Global Security or beneficial 


 

















 


interests therein, the rules and
procedures of the Depositary for such Global Security, Euroclear and
Clearstream, in each case to the extent applicable to such payment, tender,
redemption, transfer or transaction and as in effect from time to time.


 


“Authorized
Newspaper” means a newspaper (which, in the case of The City of New
York, will, if practicable, be The Wall Street Journal (Eastern Edition) and in
the case of London, will, if practicable, be the Financial Times (London
Edition) and published in an official language of the country of publication
customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or London, as
applicable.  If it shall be impractical
in the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.


 


“Board Resolution”
means one or more resolutions of the board of directors of the Company or any
authorized committee thereof, certified by the secretary or an assistant
secretary to have been duly adopted and to be in full force and effect on the
date of certification, and delivered to the Trustee.


 


“Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which the Trustee or banking institutions are authorized or
required by law or regulation to close in New York, New York or Chicago,
Illinois with respect to any Security the interest on which is based on the
offered quotations in the interbank Eurodollar market for dollar deposits in
London, or with respect to Securities denominated in a specified currency other
than United States dollars, in the principal financial center of the country of
the specified currency.


 


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


 


“Company”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 5 of this Indenture and
thereafter means the successor.


 


“Corporate Trust
Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be administered, which
office is, at the date of this Indenture, located at Wells Fargo Bank, National
Association, 230 W. Monroe Street, Chicago, Illinois 60606, Attn: Corporate
Trust Services, except that, with respect to presentation of the Securities for
payment or registration of transfers or exchanges and the location of the
Security Register and Registrar, such term means the office or agency of the 


 


2

















 


Trustee in Minneapolis, Minnesota, which at the
date of original execution of this Indenture is located at 608 Second Avenue South, N9303-121,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Operations, or
such other address as the Trustee may designate from time to time by notice to
Holders and the Company, or the corporate trust office of any successor Trustee
(or such other address as such successor Trustee may designate from time to
time by notice to the Holders and the Company).


 


“Debt” means any
indebtedness for money borrowed, incurred, issued, assumed or guaranteed by the
Company and its Subsidiaries evidenced by notes, bonds, debentures or other
similar evidences of indebtedness.


 


“Default”
means any event that is, or after notice or passage of time or both would be,
an Event of Default.


 


“Depositary”
means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as
Depositary by the Company pursuant to Section 2.03 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series.


 


“Depositary Custodian”
means the Trustee, as custodian of each Registered Global Security for the
Depository.


 


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


 


“GAAP”
means generally accepted accounting principles in the U.S. as in effect as of
the date hereof applied on a basis consistent with the principles, methods,
procedures and practices employed in the preparation of the Company’s audited
financial statements, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as is approved by a significant segment of the accounting
profession.


 


“Guaranty Agreement”
means a supplemental indenture, in a form satisfactory to the Trustee, pursuant
to which a Subsidiary Guarantor guarantees the Company’s obligations with
respect to the Securities on the terms provided for in this Indenture.


 


“Holder”
or “Securityholder” means the
registered holder of any Security with respect to Registered Securities and the
bearer of any Unregistered Security or any coupon appertaining thereto, as the
case may be.


 


3

















 


“Indenture”
means this Indenture as originally executed and delivered or as it may be
amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.01
and 2.03.


 


“Officer”
means, with respect to the Company, the chairman of the board of directors, the
president or chief executive officer, any executive vice president, any senior
vice president, any vice president, the chief financial officer, the treasurer
or any assistant treasurer, or the secretary or any assistant secretary.


 


“Officers’
Certificate” means a certificate signed in the name of the Company (i) by
the president or chief executive officer, an executive vice president, a senior
vice president or a vice president, and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, and delivered to the Trustee.  Each such certificate shall comply with Section 314
of the Trust Indenture Act, if applicable, and include (except as otherwise
expressly provided in this Indenture) the statements provided in Section 11.04,
if applicable.


 


“Opinion of
Counsel” means a written opinion signed by legal counsel, who may be
an employee of or counsel to the Company, or other counsel satisfactory to the
Trustee, and delivered to the Trustee. 
Each such opinion shall comply with Section 314 of the Trust
Indenture Act, if applicable, and include the statements provided in Section 11.04,
if and to the extent required thereby.


 


“Original Issue
Date” of any Security (or portion thereof) means the earlier of (a) the
date of authentication of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.


 


“Original Issue
Discount Security” means any Security that provides for an amount
less than the Principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.02.


 


“Periodic Offering”
means an offering of Securities of a series from time to time, the specific
terms of which Securities, including, without limitation, the rate or rates of
interest, if any, thereon, the stated maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by
the Company or its agents upon the issuance of such Securities.


 


“Person”
means an individual, a corporation, a partnership, a limited liability company,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.


 


4

















 


“Principal”
of a Security means the principal amount of, and, unless the context indicates
otherwise, includes any premium payable on, the Security.


 


“Registered Global
Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance
with Section 2.02, and bearing the legend prescribed in Section 2.02.


 


“Registered
Security” means any Security registered on the Security Register (as
defined in Section 2.05).


 


“Responsible
Officer” when used with respect to the Trustee, shall mean an
officer of the Trustee in the Corporate Trust Office having direct
responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer to whom such matter is referred because
of such officer’s knowledge of and familiarity with the particular subject.


 


“Securities”
means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture and, unless
the context indicates otherwise, shall include any coupon appertaining thereto.


 


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


 


“Subsidiary”
means, with respect to any Person, any corporation, association or other
business entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.


 


“Subsidiary Guarantor”
means each Subsidiary of the Company that executes this Indenture as a
guarantor and each other Subsidiary of the Company that hereafter guarantees
the Securities and this Indenture.


 


“Subsidiary Guaranty”
means a guarantee by a Subsidiary Guarantor of the Company’s obligations with
respect to the Securities.


 


“Trustee”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article 7 and
thereafter shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, “Trustee” as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.


 


“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended (15 U.S. Code
§§ 77aaa-77bbbb), as it may be amended from time to time.


 


5

















 


“Unregistered
Security” means any Security other than a Registered Security.


 


“U.S. Government
Obligations” means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of an agency or instrumentality of
the United States of America the full and timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt.


 


“Yield to Maturity”
means, as the context may require, the yield to maturity (i) on a series
of Securities or (ii) if the Securities of a series are issuable from time
to time, on a Security of such series, calculated at the time of issuance of
such series in the case of clause (i) or at the time of issuance of such
Security of such series in the case of clause (ii), or, if applicable, at the
most recent redetermination of interest on such series or on such Security, and
calculated in accordance with the constant interest method or such other
accepted financial practice as is specified in the terms of such Security.


 


Section 1.02.  Other
Definitions.  Each of the
following terms is defined in the section set forth opposite such term:


 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Authenticating Agent

  	
   

  	
  2.02

  
	
  Cash Transaction

  	
   

  	
  7.03

  
	
  Dollars

  	
   

  	
  4.02

  
	
  Event of Default

  	
   

  	
  6.01

  
	
  Guaranteed Obligations

  	
   

  	
  10.02

  
	
  Judgment Currency

  	
   

  	
  11.15(a)

  
	
  Mandatory sinking fund payment

  	
   

  	
  3.05

  
	
  Optional sinking fund payment

  	
   

  	
  3.05

  
	
  Paying Agent

  	
   

  	
  2.05

  
	
  Record date

  	
   

  	
  2.04

  
	
  Registrar

  	
   

  	
  2.05

  
	
  Required Currency

  	
   

  	
  11.15(a)

  
	
  Security Register

  	
   

  	
  2.05

  
	
  Self-liquidating paper

  	
   

  	
  7.03

  
	
  Sinking fund payment date

  	
   

  	
  3.05

  
	
  Tranche

  	
   

  	
  2.14

  



 


Section 1.03. 
Incorporation by Reference of Trust Indenture Act.  Whenever this Indenture refers to
a provision of the Trust Indenture Act, the provision is incorporated by
reference in and made a part of this Indenture. 
The 


 


6

















 


following terms used in this Indenture that are
defined by the Trust Indenture Act have the following meanings:


 


“indenture
securities” means the Securities and the Subsidiary Guaranties;


 


“indenture
security holder” means a Holder or a Securityholder;


 


“indenture to be
qualified” means this Indenture;


 


“indenture trustee”
or “institutional trustee” means
the Trustee; and


 


“obligor”
on the indenture securities means the Company, each Subsidiary Guarantor or any
other obligor on the Securities.


 


All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by reference in the Trust Indenture
Act to another statute or defined by a rule of the Commission and not
otherwise defined herein have the meanings assigned to them therein.


 


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


 


(a)           an accounting term
not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


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


 


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


 


(d)           all references to
Sections or Articles refer to Sections or Articles of this Indenture unless
otherwise indicated; and


 


(e)           use of masculine,
feminine or neuter pronouns should not be deemed a limitation, and the use of
any such pronouns should be construed to include, where appropriate, the other
pronouns.


 


ARTICLE 2

THE SECURITIES


 


Section 2.01.  Form and
Dating.  The Securities of
each series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, 


 


7

















 


omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent
with the provisions of this Indenture, as may be required to comply with any
law, or with any rules of any securities exchange or usage, all as may be
determined by the officers executing such Securities as evidenced by their
execution of the Securities.  Unless
otherwise so established, Unregistered Securities shall have coupons attached.


 


Section 2.02.  Execution
And Authentication.  One
Officer shall execute the Securities and one Officer shall execute the coupons
appertaining thereto for the Company by facsimile or manual signature in the
name and on behalf of the Company.  If an
Officer whose signature is on a Security or coupon appertaining thereto no
longer holds that office at the time the Security is authenticated, the
Security and such coupon shall nevertheless be valid.


 


The Trustee, at the expense of the Company, may
appoint an authenticating agent (the “Authenticating
Agent”) to authenticate Securities. 
The Authenticating Agent may authenticate Securities whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent.


 


A Security and the coupons appertaining thereto
shall not be valid until the Trustee or Authenticating Agent signs, manually or
by facsimile, the certificate of authentication on the Security or on the
Security to which such coupon appertains by an authorized officer.  The signature shall be conclusive evidence
that the Security or the Security to which the coupon appertains has been
authenticated under this Indenture.


 


At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series having attached thereto appropriate coupons, if any, executed by the
Company to the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company.  In authenticating any
Securities of a series, the Trustee shall be entitled to receive prior to the
authentication of any Securities of such series, and (subject to Article 7)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:


 


(a)           any Board Resolution
and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by
or pursuant to which the forms and terms of the Securities of that series were
established;


 


(b)           an Officers’
Certificate setting forth the form or forms and terms of the Securities,
stating that the form or forms and terms of the Securities of such series have
been, or, in the case of a Periodic Offering, will be when established in
accordance with such procedures as shall be referred to therein, established in
compliance with this Indenture; and


 


8

















 


(c)           an Opinion of
Counsel substantially to the effect that the form or forms and terms of the
Securities of such series have been, or, in the case of a Periodic Offering,
will be when established in accordance with such procedures as shall be
referred to therein, established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been duly
authorized and, if executed and authenticated in accordance with the provisions
of the Indenture and delivered to and duly paid for by the purchasers thereof
on the date of such opinion, would be entitled to the benefits of the Indenture
and that this Indenture, such Securities and the Subsidiary Guaranties would be
valid and binding obligations of the Company and the Subsidiary Guarantors,
enforceable against the Company and the Subsidiary Guarantors in accordance
with their respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors’ rights generally,
general principles of equity, and covering such other matters as shall be
specified therein and as shall be reasonably requested by the Trustee.


 


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


 


Notwithstanding the provisions of Sections 2.01 and
2.02, if, in connection with a Periodic Offering, all Securities of a series
are not to be originally issued at one time, it shall not be necessary to
deliver the Board Resolution otherwise required pursuant to Section 2.01
or the written order, Officers’ Certificate and Opinion of Counsel otherwise
required pursuant to Section 2.02 at or prior to the authentication of
each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued in connection with any such Periodic Offering.


 


With respect to Securities of a series offered in a
Periodic Offering, the Trustee may rely, as to the authorization by the Company
of any of such Securities, the forms and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Sections 2.01 and 2.02,
as applicable, in connection with the first authentication of Securities of
such series.


 


If the Company shall establish pursuant to Section 2.03
that the Securities of a series or a portion thereof are to be issued in the
form of one or more Registered Global Securities, then the Company shall
execute and the Trustee shall authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate Principal amount of all of the Securities of such
series issued in such form and not yet cancelled, (ii) shall be registered
in the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) 


 


9

















 


shall be delivered by the
Trustee to such Depositary or its custodian or pursuant to such Depositary’s
instructions and (iv) shall (unless provided otherwise in the form of such
Security) bear a legend substantially to the following effect:  “Unless and until it is exchanged in whole or
in part for Securities in definitive registered form, this Security may not be
transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.”


 


Section 2.03.  Amount
Unlimited; Issuable in Series.  The
aggregate Principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.


 


The Securities may be issued in one or more series
and each such series shall rank equally and pari passu with all other unsecured
and unsubordinated debt of the Company. 
There shall be established in or pursuant to Board Resolution or one or
more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.03,


 


(a)        the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;


 


(b)        any limit upon the aggregate Principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture and any limitation on the ability of the Company to increase such
aggregate Principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, or upon redemption of, other
Securities of the series pursuant hereto);


 


(c)        the date or dates on which the Principal of the Securities of
the series is payable (which date or dates may be fixed or extendible);


 


(d)        the rate or rates (which may be fixed or variable) per annum
at which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;


 


(e)        if other than as provided in Section 4.02, the place or
places where the Principal of and any interest on Securities of the series
shall be payable, any Registered Securities of the series may be surrendered
for exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to Holders
may be published;


 


10

















 


(f)         the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;


 


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


 


(h)        if other than denominations of $2,000 or higher multiples of
$1,000, the denominations in which Securities of the series shall be issuable;


 


(i)         if other than the Principal amount thereof, the portion of
the Principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;


 


(j)         if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable or if
the amount of payments of principal of and/or interest on the Securities of the
series may be determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated, the manner
in which such amounts shall be determined;


 


(k)        if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which payment of
the Principal of and interest on the Securities of the series shall be payable,
and the manner in which any such currencies shall be valued against other
currencies in which any other Securities shall be payable;


 


(l)         whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered Securities
(with or without coupons) (and if so, whether such Securities will be issued in
temporary or permanent global form), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as provided
herein, the terms upon which Unregistered Securities of any series may be
exchanged for Registered Securities of such series and vice versa;


 


(m)       whether the Securities of the series may be exchangeable for
and/or convertible into the common stock of the Company or any other security;


 


(n)        whether and under what circumstances the Company will pay additional
amounts on the Securities of the series held by a person who is not a 


 


11

















 


U.S. person in respect of
any tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Securities rather than
pay such additional amounts;


 


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


 


(p)        the appointment or designation of any trustees, depositaries,
authenticating or paying agents, transfer agents or the registrar or any other
agents with respect to the Securities of the series;


 


(q)        provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;


 


(r)         if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities or Unregistered Securities in
global form, the identity of the Depositary or common Depositary for such
Registered Global Security or Securities or Unregistered Securities in global
form;


 


(s)        any other Events of Default or covenants with respect to the
Securities of the series;


 


(t)         any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture); and


 


(u)        if the Securities of the series are issuable without the
benefit of the Subsidiary Guaranties.


 


All Securities of any one series and coupons, if
any, appertaining thereto shall be substantially identical, except in the case
of Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to the
Board Resolution referred to above or as set forth in any such indenture
supplemental hereto.  All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution or in any such indenture supplemental hereto
and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by
procedures described in such Board Resolution or supplemental indenture.


 


Unless otherwise expressly provided with respect to
a series of Securities, the aggregate principal amount of a series of
Securities may be increased and


 


12
















 


additional Securities of
such series may be issued up to the maximum aggregate principal amount
authorized with respect to such series as increased.


 


Section 2.04.  Denomination
and Date of Securities; Payments of Interest. 
The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $2,000 or higher multiples of
$1,000.  The Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the Officers of the Company executing the same may
determine, as evidenced by their execution thereof.


 


Unless otherwise specified with respect to a series
of Securities, each Security shall be dated the date of its
authentication.  The Securities of each
series shall bear interest, if any, from the date, and such interest and shall be
payable on the dates, established as contemplated by Section 2.03.


 


The person in whose name any Registered Security of
any series is registered at the close of business on any record date applicable
to a particular series with respect to any interest payment date for such
series shall be entitled to receive the interest, if any, payable on such
interest payment date notwithstanding any transfer or exchange of such
Registered Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Company shall default in the
payment of the interest due on such interest payment date for such series, in
which case the provisions of Section 2.13 shall apply.  The term “record
date” as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.03, or, if no such
date is so established, the fifteenth day next preceding such interest payment
date, whether or not such record date is a Business Day.


 


Section 2.05.  Registrar
and Paying Agent; Agents Generally.  The
Company shall maintain an office or agency where Securities may be presented
for registration, registration of transfer or for exchange (the “Registrar”) and an office or agency where
Securities may be presented for payment (the “Paying
Agent”), which shall be in the United States of America.  The Company shall cause the Registrar to keep
a register of the Registered Securities and of their registration, transfer and
exchange (the “Security Register”).  The Company may have one or more additional
Paying Agents or transfer agents with respect to any series.


 


The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture.  The agreement shall implement the provisions
of this Indenture and the Trust Indenture Act that relate to such Agent.  The Company shall give prompt written notice
to the Trustee of the name and address of any Agent and any change in the name
or address of an Agent.  If the 


 


13

















 


Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.  The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided
that no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Company and such successor Agent and
delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso.  The Company or any Affiliate of the Company
may act as Paying Agent or Registrar; provided
that neither the Company nor an Affiliate of the Company shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article 8.


 


The Company initially appoints the Trustee as
Registrar, Paying Agent and Authenticating Agent.  If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to
each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in the
Security Register.


 


Section 2.06.  Paying Agent
to Hold Money in Trust.  Not
later than 10:00 a.m. New York City time on each due date or, in the case
of Unregistered Securities, 10:00 a.m. New York City time on the Business
Day prior to the due date, of any Principal or interest on any Securities, the
Company shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such Principal or interest.  The Company shall require each Paying Agent
other than the Trustee to agree in writing that such Paying Agent shall hold in
trust for the benefit of the Holders of such Securities or the Trustee all
money held by the Paying Agent for the payment of Principal of and interest on
such Securities and shall promptly notify the Trustee of any default by the
Company in making any such payment.  The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any
time during the continuance of any payment default, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. 
Upon doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee.  If
the Company or any affiliate of the Company acts as Paying Agent, it will, on
or before each due date of any Principal of or interest on any Securities,
segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed
of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.


 


Section 2.07.  Transfer and
Exchange.  Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.


 


14

















 


At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global Security, except as
set forth below) may be exchanged for a Registered Security or Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate Principal amount, upon surrender of such Registered Securities
to be exchanged at the agency of the Company that shall be maintained for such
purpose in accordance with Section 2.05 and upon payment, if the Company
shall so require, of the charges hereinafter provided.  If the Securities of any series are issued in
both registered and unregistered form, except as otherwise established pursuant
to Section 2.03, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
Principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such
purpose in accordance with Section 4.02, with, in the case of Unregistered
Securities that have coupons attached, all unmatured coupons and all matured
coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided.  At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination, except
as otherwise established pursuant to Section 2.03, such Unregistered
Securities may be exchanged for Unregistered Securities of such series and
tenor having authorized denominations and an equal aggregate Principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with Section 4.02,
with, in the case of Unregistered Securities that have coupons attached, all
unmatured coupons and all matured coupons in default thereto appertaining, and
upon payment, if the Company shall so require, of the charges hereinafter
provided.  Registered Securities of any
series may not be exchanged for Unregistered Securities of such series.  Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.


 


Upon surrender for registration of transfer of any
Registered Security of a series at the agency of the Company that shall be
maintained for that purpose in accordance with Section 2.05 and upon
payment, if the Company shall so require, of the charges hereinafter provided,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of like
tenor and aggregate Principal amount.


 


All Registered Securities presented for registration
of transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.


 


15

















 


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


 


Notwithstanding any other provision of this Section 2.07,
unless and until a Registered Global Security is exchanged in whole or in part
for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.


 


If at any time the Depositary for any Registered
Global Securities of any series notifies the Company that it is unwilling or
unable to continue as Depositary for such Registered Global Securities or if at
any time the Depositary for such Registered Global Securities shall no longer
be eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered Global
Securities.  If a successor Depositary
eligible under applicable law for such Registered Global Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the Trustee,
upon receipt of the Company’s order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and deliver Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate Principal amount equal to the Principal amount
of such Registered Global Securities, in exchange for such Registered Global
Securities.


 


The Company may at any time and in its sole
discretion and subject to the procedures of the Depositary determine that any
Registered Global Securities of any series shall no longer be maintained in
global form.  In such event the Company
will execute, and the Trustee, upon receipt of the Company’s order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver, Registered Securities of such series
and tenor in any authorized denominations, in an aggregate Principal amount
equal to the Principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.


 


Any time the Registered Securities of any series are
not in the form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable supply
of certificated Registered Securities without the legend required by Section 2.02
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.


 


16

















 


If established by the Company pursuant to Section 2.03
with respect to any Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Registered Securities of the same series and
tenor in definitive registered form on such terms as are acceptable to the
Company and such Depositary.  Thereupon,
the Company shall execute, and the Trustee shall authenticate and deliver,
without service charge,


 


(a)           to
the Person specified by such Depositary new Registered Securities of the same
series and tenor, of any authorized denominations as requested by such Person,
in an aggregate Principal amount equal to and in exchange for such Person’s beneficial
interest in the Registered Global Security; and


 


(b)           to
such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the Principal amount of the surrendered Registered
Global Security and the aggregate Principal amount of Registered Securities
authenticated and delivered pursuant to clause (a) above.


 


Registered Securities issued in exchange for a
Registered Global Security pursuant to this Section 2.07 shall be
registered in such names and in such authorized denominations as the Depositary
for such Registered Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or an agent
of the Company or the Trustee.  The
Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.


 


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


 


Notwithstanding anything herein or in the forms or
terms of any Securities to the contrary, none of the Company, the Trustee or
any agent of the Company or the Trustee shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would result
in adverse Federal income tax consequences to the Company (such as, for
example, the inability of the Company to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.  The Trustee and any such agent shall be entitled
to rely on an Officers’ Certificate or an Opinion of Counsel in determining
such result.


 


The Registrar shall not be required (i) to
issue, authenticate, register the transfer of or exchange Securities of any
series for a period of 15 days before a 


 


17

















 


selection of such Securities
to be redeemed or (ii) to register the transfer of or exchange any
Security selected for redemption in whole or in part.


 


Section 2.08.  Replacement
Securities.  If any mutilated
Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver, in exchange for such mutilated Security or in
exchange for the Security to which a mutilated coupon appertains, a new Security
of the same series and of like tenor and Principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons,
if any, appertaining to such mutilated Security or to the Security to which
such mutilated coupon appertains.


 


If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon and (ii) such security or indemnity as may
be required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and Principal
amount and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.


 


In case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security or coupon (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them and any agent of any of them harmless, and in the case of
destruction, loss or theft, evidence satisfactory to the Company and the
Trustee and any agent of them of the destruction, loss or theft of such
Security and the ownership thereof; provided,
however, that the Principal of and any interest on Unregistered
Securities shall, except as otherwise provided in Section 4.02, be payable
only at an office or agency located outside the United States of America.


 


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


 


Every new Security of any series, with its coupons,
if any, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security or in exchange for any mutilated Security, or in exchange for a
Security to which a mutilated, 


 


18

















 


destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and any such new
Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.


 


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


 


Section 2.09.  Outstanding
Securities.  Securities
outstanding at any time are all Securities that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those described in this Section as not outstanding and those
that have been defeased pursuant to Section 8.05.


 


If a Security is replaced pursuant to Section 2.08,
it ceases to be outstanding unless and until the Trustee and the Company
receive proof satisfactory to them that the replaced Security is held by a
holder in due course.


 


If the Paying Agent (other than the Company or an
affiliate of the Company) holds on the maturity date or any redemption date or
date for repurchase of the Securities money sufficient to pay Securities
payable or to be redeemed or repurchased on that date, then on and after that
date such Securities cease to be outstanding and interest on them shall cease
to accrue.


 


A Security does not cease to be outstanding because
the Company or one of its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite Principal amount of the outstanding
Securities have given any request, demand, 
authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any affiliate of the Company shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities as
to which a Responsible Officer of the Trustee has received written notice to be
so owned shall be so disregarded.  Any
Securities so owned which are pledged by the Company, or by any affiliate of
the Company, as security for loans or other obligations, otherwise than to
another such affiliate of the Company, shall be deemed to be outstanding, if
the pledgee is entitled pursuant to the terms of its pledge agreement and is
free to exercise in its or his discretion the right to vote such securities,
uncontrolled by the Company or by any such affiliate.


 


Section 2.10.  Temporary
Securities.  Until definitive
Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series.  Temporary Securities of any 


 


19

















 


series shall be substantially in the form of
definitive Securities of such series but may have insertions, substitutions,
omissions and other variations determined to be appropriate by the Officers
executing the temporary Securities, as evidenced by their execution of such
temporary Securities.  If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay.  After the preparation of definitive
Securities of any series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series and tenor upon surrender
of such temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 4.02, without charge to the
Holder.  Upon surrender for cancellation
of any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
Principal amount of definitive Securities of such series and tenor and
authorized denominations.  Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series.


 


Section 2.11. 
Cancellation.  The
Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold.  The
Registrar, any transfer agent and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment.  The Trustee shall cancel and dispose of in
accordance with its customary procedures all Securities surrendered for
transfer, exchange, payment or cancellation and upon request shall deliver a
certificate of disposition to the Company. 
The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.


 


Section 2.12.  CUSIP
Numbers.  The Company in
issuing the Securities may use “CUSIP” and “CINS” numbers (if then generally in
use), and the Trustee shall use CUSIP numbers or CINS numbers, as the case may
be, in notices (including notices of redemption or exchange) as a convenience
to Holders and no representation shall be made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice
(including any notice of redemption or exchange).


 


Section 2.13.  Defaulted
Interest.  If the Company
defaults in a payment of interest on the Registered Securities, it shall pay,
or shall deposit with the Paying Agent money in immediately available funds
sufficient to pay, the defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest (as may be specified in the terms
thereof, established pursuant to Section 2.03) to the Persons who are
Holders on a subsequent special record date, which shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is a Business Day. 
At least 15 days before such special record date, the Company shall mail
to each Holder of such 


 


20

















 


Registered Securities and to the Trustee a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.


 


Section 2.14.  Series May Include
Tranches.  A series of
Securities may include one or more tranches (each a “tranche”) of Securities, including Securities issued in a
Periodic Offering.  The Securities of
different tranches may have one or more different terms, including
authentication dates and public offering prices, but all the Securities within
each such tranche shall have identical terms, including authentication date and
public offering price.  Notwithstanding
any other provision of this Indenture, with respect to Sections 2.02 (other
than the fourth, sixth and seventh paragraphs thereof) through 2.04, 2.07,
2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.07, 9.02
and Section 11.07, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of Securities
shall be deemed equally applicable to each tranche of any series of Securities
in the same manner as though originally designated a series unless otherwise
provided with respect to such series or tranche pursuant to Section 2.03.  In particular, and without limiting the scope
of the next preceding sentence, any of the provisions of such sections which
provide for or permit action to be taken with respect to a series of Securities
shall also be deemed to provide for and permit such action to be taken instead
only with respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no comparable
action is taken with respect to Securities in the remaining tranches of that
series.


 


ARTICLE 3

REDEMPTION


 


Section 3.01. 
Applicability of Article.  The
provisions of this Article shall be applicable to the Securities of any
series that are redeemable before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.


 


Section 3.02.  Notice of
Redemption; Partial Redemptions.  Notice
of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last addresses
as they shall appear upon the registry books. 
Notice of redemption to the Holders of Unregistered Securities of any
series to be redeemed as a whole or in part who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, shall be given by mailing notice of such redemption, by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Company, the 


 


21

















 


Trustee shall make such information available to the
Company for such purpose).  Notice of
redemption to all other Holders of Unregistered Securities of any series to be
redeemed as a whole or in part shall be published in an Authorized Newspaper in
The City of New York or with respect to any Security the interest on which is
based on the offered quotations in the interbank Eurodollar market for dollar
deposits in an Authorized Newspaper in London, in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption.  Any notice which is mailed or published in
the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. 
Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such series.


 


The notice of redemption to each such Holder shall
specify the Principal amount of each Security of such series held by such
Holder to be redeemed, the CUSIP or CINS numbers of the Securities to be
redeemed, the date fixed for redemption, the redemption price, or if not then
ascertainable, the manner of calculation thereof, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of all
coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to
accrue.  In case any Security of a series
is to be redeemed in part only, the notice of redemption shall state the
portion of the Principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in Principal amount equal to
the unredeemed portion thereof will be issued.


 


The notice of redemption of Securities of any series
to be redeemed at the option of the Company shall be given by the Company or,
at the Company’s request, by the Trustee in the name and at the expense of the
Company.


 


On or before 10:00 a.m. New York City time on
the redemption date or, in the case of Unregistered Securities, on or before
10:00 a.m. New York City time on the Business Day prior to the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents
(or, if the Company is acting as its own Paying Agent, set aside, segregate and
hold in trust as provided in Section 2.06) an amount of money sufficient
to redeem on the redemption date all the Securities of such series so called
for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. 
If all of the outstanding Securities of a series are to be redeemed, the
Company will deliver to the Trustee at least 10 days prior to the last date on
which notice of redemption


 


22
















 


may be given to Holders
pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers’ Certificate stating
that all such Securities are to be redeemed. 
If less than all the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 15 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers’ Certificate stating the aggregate
Principal amount of such Securities to be redeemed.  In the case of any redemption of Securities (a) prior
to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, or (b) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities or elsewhere in this Indenture, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section,  an Officers’
Certificate evidencing compliance with such restriction or condition.


 


If less than all the Securities of a series are to
be redeemed, and the Securities are Registered Global Securities then
redemption shall be made in accordance with Applicable Procedures, otherwise
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part.  Securities may be redeemed in part
in Principal amounts equal to authorized denominations for Securities of such
series.  The Trustee shall promptly
notify the Company in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the Principal amount thereof to be redeemed.  For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the Principal amount of such Security which has
been or is to be redeemed.


 


If the Company elects to redeem the Securities of
any series at its option, at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be agreed to in writing by the
Trustee) but not more than 60 days before the date fixed for redemption, except
that any such notice to the Trustee may be given to the Trustee more than 60
days prior to a date fixed for redemption if the notice is issued in connection
with a defeasance or a satisfaction or discharge of this Indenture pursuant to Article 8,
the Company shall notify the Trustee in writing of the date fixed for
redemption, the principal amount of Securities of such series to be redeemed
and the redemption price thereof, and deliver to the Trustee an Officers’
Certificate stating that such redemption will comply with any applicable
covenants or conditions to such redemption. 
Notice given to the Trustee pursuant to this Section 3.02 may not
be revoked after the time such notice is given to Holders. If the redemption
price is not known at the time such notice is to be given, the actual
redemption price, calculated as described in the terms of the Securities, will
be set forth in an Officers’ Certificate of the Company delivered to the
Trustee no later than two Business Days prior to the date fixed for redemption.


 


23

















 


Section 3.03.  Payment Of
Securities Called For Redemption.  If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.12 and
8.02, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption.  On presentation and
surrender of such Securities at a place of payment specified in said notice,
together with all coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with coupons attached
thereto, to the Holders of the coupons for such interest upon surrender
thereof, and in the case of Registered Securities, to the Holders of such
Registered Securities registered as such on the relevant record date subject to
the terms and provisions of Sections 2.04 and 2.13 hereof.


 


If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the Principal shall, until paid
or duly provided for, bear interest from the date fixed for redemption at the
rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.


 


If any Security with coupons attached thereto is
surrendered for redemption and is not accompanied by all appurtenant coupons
maturing after the date fixed for redemption, the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to
save each of them harmless.


 


Upon presentation of any Security of any series
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the expense
of the Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in Principal amount
equal to the unredeemed portion of the Security so presented (or in accordance
with Applicable Procedures, if the Securities are Registered Global
Securities).


 


Section 3.04.  Exclusion of
Certain Securities from Eligibility for Selection for Redemption.  Unless otherwise provided with
respect to any series of 


 


24

















 


Securities, Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration
and certificate number in a written statement signed by an authorized officer
of the Company and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the
Company or (b) an entity specifically identified in such written statement
as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company.


 


Section 3.05.  Mandatory
and Optional Sinking Funds.  The
minimum amount of any sinking fund payment provided for by the terms of Securities
of any series is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is herein
referred to as an “optional sinking fund
payment”.  The date on which a
sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.


 


In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the
Company may at its option (a) deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired (except through a mandatory
sinking fund payment) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 2.11, (b) receive credit for
optional sinking fund payments (not previously so credited) made pursuant to
this Section, or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company at the option of the Company
pursuant to the terms of such Securities or through any optional sinking fund
payment.  Securities so delivered or
credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.


 


On or before the sixtieth day next preceding each
sinking fund payment date for any series, or such shorter period as shall be
acceptable to the Trustee, the Company will deliver to the Trustee an Officers’
Certificate (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied by
credit of specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have not
been waived or cured) and are continuing and (d) stating whether or not
the Company intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date. 
Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 


 


25

















 


2.11 to the Trustee with
such Officers’ Certificate (or reasonably promptly thereafter if acceptable to
the Trustee).  Such Officers’ Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or before the next succeeding
sinking fund payment date.  Failure of
the Company, on or before any such sixtieth day, to deliver such Officer’s
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such series as
provided in this Section.


 


If the sinking fund payment or payments (mandatory
or optional or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 (or a lesser sum if the Company shall so
request with respect to the Securities of any series), such cash shall be
applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price thereof together
with accrued interest thereon to the date fixed for redemption.  If such amount shall be $50,000 (or such
lesser sum) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $50,000 (or such lesser sum) is
available.  The Trustee shall select, in
the manner provided in Section 3.02, for redemption on such sinking fund
payment date a sufficient Principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. 
Securities shall be excluded from eligibility for redemption under this Section if
they are identified by registration and certificate number in an Officers’
Certificate delivered to the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity specifically
identified in such Officers’ Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company.  The Trustee, in the name and at
the expense of the Company (or the Company, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series
to be given in substantially the manner provided in Section 3.02 (and with
the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company.  The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section.  Any and all sinking fund moneys
held on the stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment
or redemption of particular Securities of such series shall be applied,
together with other moneys, 


 


26

















 


if necessary, sufficient for
the purpose, to the payment of the Principal of, and interest on, the
Securities of such series at maturity.


 


On or before 10:00 a.m. New York City time on
each sinking fund payment date or, in the case of Unregistered Securities,
10:00 a.m. New York City time on the Business Day prior to the sinking
fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.


 


The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund during
the continuance of a Default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of
any Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received from
the Company a sum sufficient for such redemption.  Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such Default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such Default or Event of Default, be deemed to
have been collected under Article 6 and held for the payment of all such
Securities.  In case such Event of
Default shall have been waived as provided in Section 6.04 or the Default
cured on or before the sixtieth day preceding the sinking fund payment date in
any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the
redemption of such Securities.


 


ARTICLE 4

COVENANTS


 


Section 4.01.  Payment of
Securities.  The Company shall
pay the Principal of and interest on the Securities on the dates and in the
manner provided in the Securities and this Indenture.  The interest on Securities with coupons
attached (together with any additional amounts payable pursuant to the terms of
such Securities) shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.  The interest on any
temporary Unregistered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be paid, as to the installments
of interest evidenced by coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Unregistered Securities for
notation thereon of the payment of such interest.  The interest on Registered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to the Holders thereof (subject to Section 2.04)
and at the option of the Company may be paid by mailing checks 


 


27

















 


for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.


 


Notwithstanding any provisions of this Indenture and
the Securities of any series to the contrary, if the Company and a Holder of
any Registered Security so agree, payments of interest on, and any portion of
the Principal of, such Holder’s Registered Security (other than interest
payable at maturity or on any redemption or repayment date or the final payment
of Principal on such Security) shall be promptly made by the Paying Agent, upon
receipt from the Company of immediately available funds, directly to the Holder
of such Security (by Federal funds wire transfer or otherwise) if the Holder
has delivered written instructions to the Trustee 15 days prior to such payment
date requesting that such payment will be so made and designating the bank account
to which such payments shall be so made and in the case of payments of
Principal, surrenders the same to the Trustee in exchange for a Security or
Securities aggregating the same Principal amount as the unredeemed Principal
amount of the Securities surrendered (or in accordance with Applicable
Procedures if the Securities are Registered Global Securities).  The Trustee shall be entitled to rely on the
last instruction delivered by the Holder pursuant to this Section 4.01
unless a new instruction is delivered 15 days prior to a payment date.  The Company will indemnify and hold each of
the Trustee and any Paying Agent harmless against any loss, liability or
expense (including attorneys’ fees) resulting from any act or omission to act
on the part of the Company or any such Holder in connection with any such
agreement or from making any payment in accordance with any such agreement.


 


The Company shall pay interest on overdue Principal,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.


 


The Company will be responsible for making
calculations called for under the Securities, including but not limited to
determination of redemption price, premium, if any, and any additional amounts
or other amounts payable on the Securities. 
The Company will make the calculations in good faith and, absent
manifest error, its calculations will be final and binding on the Holders.  The Company will provide a schedule of its
calculations to the Trustee when applicable, and the Trustee is entitled to
rely conclusively on the accuracy of the Company’s calculations without
independent verification.


 


The Company shall promptly calculate after each
calendar year end to determine whether there is a reportable original issue
discount amount on any outstanding Original Issue Discount Securities.  If
so, then the Company shall file with the Trustee not later than January 15
following the end of such calendar year (i) a written notice specifying
the amount of original issue discount (including daily rates and accrual
periods) accrued on outstanding Original Issue Discount Securities as of the
end of such year and (ii) such other specific information relating to such
original issue discount as may then be relevant under the Internal Revenue Code
of 1986, as amended from time to time, in order to enable the 


 


28

















 


Trustee to prepare any
required reports with respect to such original issue discount, including but
not limited to Form 1099-OID.


 


Section 4.02.  Maintenance
of Office or Agency.  The
Company will maintain in the United States of America, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served.  The Company hereby initially designates the
Corporate Trust Office of the Trustee as such office or agency of the
Company.  The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency.  If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.


 


The Company will maintain one or more agencies in a
city or cities located outside the United States of America (including any city
in which such an agency is required to be maintained under the rules of
any stock exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any,
appertaining thereto may be presented for payment.  No payment on any Unregistered Security or
coupon will be made upon presentation of such Unregistered Security or coupon
at an agency of the Company within the United States of America nor will any
payment be made by transfer to an account in, or by mail to an address in, the
United States of America unless, pursuant to applicable United States laws and
regulations then in effect, such payment can be made without adverse tax
consequences to the Company. 
Notwithstanding the foregoing, if full payment in United States Dollars
(“Dollars”) at each agency
maintained by the Company outside the United States of America for payment on
such Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the United States of America.


 


The Company may also from time to time designate one
or more other offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the United States of America for such purposes.  The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


Section 4.03. 
Securityholders’ Lists.  The
Registrar 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 and
shall otherwise comply with Trust 


 


29

















 


Indenture Act Section 312(a).  If the Trustee is not the Registrar, the
Company will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the
holders of the Securities pursuant to Section 312 of the Trust Indenture
Act, including the aggregate principal amount of Securities held by each Holder
(a) semi-annually not more than 5 days after each record date for the
payment of semi-annual interest on the Securities, as hereinabove specified, as
of such record date, and (b) at such other times as the Trustee may
request in writing, within 15 days after receipt by the Company of any such
request as of a date not more than 15 days prior to the time such information
is furnished.


 


Section 4.04.  Certificate
to Trustee.  The Company will
furnish to the Trustee annually, on or before a date not more than four months
after the end of its fiscal year (which, on the date hereof, is a calendar
year), a brief certificate (which need not contain the statements required by Section 11.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.


 


Section 4.05.  Reports by
the Company.  The Company
covenants to file with the Trustee and the Holders, within 15 days after the
Company files the same with the Commission, copies of the annual reports and of
the information, documents, and other reports which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act.  The Company shall be
deemed to have furnished the reports referred to in this Section 4.05 to
the Trustee and to Holders if it has filed such reports with the Commission via
the “EDGAR” filing system (or any successor filing system) and such reports are
publicly available.  Delivery of reports,
information and documents to the Trustee hereunder is for informational
purposes only and the Trustee’s receipt of any such reports, information and
documents shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates or statements
delivered to the Trustee pursuant to Section 4.04).


 


Section 4.06.  Additional
Amounts.  If the Securities of
a series provide for the payment of additional amounts, at least 10 days prior
to the first interest payment date with respect to that series of Securities
and at least 10 days prior to each date of payment of Principal of or interest
on the Securities of that series if there has been a change with respect to the
matters set forth in the below-mentioned Officers’ Certificate, the Company
shall furnish to the Trustee and the principal paying agent, if other than the
Trustee, an Officers’ Certificate instructing the Trustee and such paying agent
whether such payment of Principal of or interest on the Securities of that
series shall be made to Holders of the Securities of that series without
withholding or deduction for or on account of any 


 


30

















 


tax, assessment or other governmental charge
described in the Securities of that series. If any such withholding or
deduction shall be required, then such Officers’ Certificate shall specify by
country the amount, if any, required to be withheld or deducted on such
payments to such Holders and shall certify the fact that additional amounts
will be payable and the amounts so payable to each Holder, and the Company
shall pay to the Trustee or such paying agent the additional amounts required
to be paid by this Section. The Company covenants to indemnify the Trustee and
any paying agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers’ Certificate furnished pursuant to this Section.


 


Whenever in this Indenture there is mentioned, in
any context, the payment of the Principal of or interest or any other amounts
on, or in respect of, any Security of any series, such mention shall be deemed
to include mention of the payment of additional amounts provided by the terms
of such series established hereby or pursuant hereto to the extent that, in
such context, additional amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of
additional amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of additional amounts in those provisions
hereof where such express mention is not made.


 


ARTICLE 5

SUCCESSOR CORPORATION


 


Section 5.01.  When Company
May Merge, Etc.  The
Company shall not consolidate or combine with, merge with or into, directly or
indirectly, or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its property and assets to any Person or Persons in
a single transaction or through a series of transactions unless:


 


(a)           the Company shall be the continuing Person or, if the
Company is not the continuing Person, the resulting, surviving or transferee
Person (the “Surviving Entity”) is
a corporation organized and existing under the laws of the United States of
America or any State or territory thereof;


 


(b)           the Surviving Entity shall expressly assume all of the
Company’s obligations under the Securities and this Indenture, and shall, if
required by law to effectuate the assumption, execute supplemental indentures
which shall be delivered to the Trustee and shall be in form and substance
reasonably satisfactory to the Trustee;


 


(c)           immediately after giving effect to such transaction or
series of transactions on a pro forma basis, no Default or Event of Default has
occurred and is continuing; and


 


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(d)           the Company or the Surviving Entity shall have delivered
to the Trustee an Officers’ Certificate and Opinion of Counsel stating that (x) the
transaction or series of transactions and such supplemental indenture, if any,
complies with this Section 5.01, (y) such supplemental indenture (if
any) constitutes the legal, valid and binding obligation of the Company and
such Surviving Entity enforceable against such Surviving Entity in accordance
with its terms, subject to customary exceptions and (z) all conditions
precedent in this Indenture relating to the transaction or series of
transactions have been satisfied.


 


The Company shall not permit any Subsidiary
Guarantor to consolidate or combine with, merge with or into, directly or indirectly,
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to any Person or Persons (other
than the Company or another Subsidiary Guarantor or as permitted in Section 10.07)
in a single transaction or through a series of transactions unless:


 


(a)           except in the case of a Subsidiary Guarantor (1) that
has been disposed of in its entirety to another Person or Persons (other than
to the Company or a Subsidiary of the Company), whether through a merger,
consolidation or sale of capital stock or assets or (2) that, as a result
of the disposition of all or a potion of its capital stock, ceases to be a
Subsidiary, in both cases, if in connection therewith the Company provides an
Officers’ Certificate to the Trustee to the effect that the resulting,
surviving or transferee Person (if not such Subsidiary) is a Person organized
and existing under the laws of the jurisdiction under which such Subsidiary was
organized or under the laws of the United States of America or any State or
territory thereof, and such Person shall expressly assume, by a Guaranty
Agreement, in a form satisfactory to the Trustee, all the obligations of such
Subsidiary, if any, under its Subsidiary Guaranty;


 


(b)           immediately after giving effect to such transaction or
series of transactions on a pro forma basis, no Default or Event of Default has
occurred and is continuing; and


 


(c)           the Company delivers to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such Guaranty Agreement, if any, complies with this
Indenture.


 


Section 5.02.  Successor
Substituted.  Upon any
consolidation, combination or merger, or any sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
property and assets of the Company or Subsidiary Guarantor in accordance with Section 5.01
of this Indenture, the Surviving Entity shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or Subsidiary
Guarantor under this Indenture with the same effect as if such Surviving Entity
had been named as the Company or Subsidiary Guarantor herein and thereafter the
predecessor Person, except in the case of (x) a lease or (y) any
sale, assignment, conveyance, transfer, lease or other disposition to one or
more Subsidiaries of the Company, 


 


32

















 


shall be discharged from all obligations and
covenants under this Indenture and the Securities.


 


ARTICLE 6

DEFAULT AND REMEDIES


 


Section 6.01.  Events of
Default.  An “Event of Default” shall occur with respect
to the Securities of any series if:


 


(a)        the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
acceleration, redemption or mandatory repurchase, including as a sinking fund
installment, or otherwise;


 


(b)        the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and such default
continues for a period of 30 days;


 


(c)        the Company or any Subsidiary Guarantor defaults in the
performance of or breaches any other covenant or agreement of the Company or
such Subsidiary Guarantor in this Indenture with respect to any Security of
such series or in the Securities of such series (other than a covenant or
agreement in respect of which non compliance by the Company or such Subsidiary
Guarantor would otherwise be an Event of Default) and such default or breach
continues for a period of 90 consecutive days or more after written notice to
the Company by the Trustee or to the Company and the Trustee by the Holders of
25% or more in aggregate Principal amount of the Securities of all series
affected thereby specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;


 


(d)        a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company or any Subsidiary
Guarantor in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Company or any Subsidiary Guarantor or for any substantial part of their
property or ordering the winding up or liquidation of their affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days;


 


(e)        the Company or any Subsidiary Guarantor (i) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (ii) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or such Subsidiary
Guarantor or for all or 


 


33

















 


substantially all of the
property and assets of the Company or such Subsidiary Guarantor or (iii) effects
any general assignment for the benefit of creditors;


 


(f)         the Company or any Subsidiary defaults on any indebtedness
for money borrowed in excess of $50,000,000 principal amount that results in
the acceleration of such indebtedness prior to its maturity;


 


(g)        any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs; or


 


(h)        any Subsidiary Guaranty ceases to be in full force and effect
(other than in accordance with the terms of such Subsidiary Guaranty or this
Indenture) or any Subsidiary Guarantor denies or disaffirms its obligations
under its Subsidiary Guaranty.


 


Section 6.02. 
Acceleration.  (a) If
an Event of Default (other than as described in clauses (d) or (e) of
Section 6.01 with respect to the Company) with respect to the Securities
of any series then outstanding occurs and is continuing, then, and in each and
every such case, except for any series of Securities the Principal of which
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate Principal amount of the Securities of such
series then outstanding hereunder by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire Principal (or,
if the Securities of any such series are Original Issue Discount Securities,
such portion of the Principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of such
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.


 


(b)        If an Event of Default described in clause (d) or (e) of
Section 6.01 with respect to the Company occurs and is continuing, then
the Principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms
thereof established pursuant to Section 2.03) of all the Securities then
outstanding and interest accrued thereon, if any, shall be and become
immediately due and payable, without any declaration, notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.


 


If the entire Principal (or, if the Securities of
any such series are Original Issue Discount Securities, such portion of the
Principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of the Securities of such series, and the
interest accrued thereon, if any, is declared to be due and payable immediately
due to an Event of Default described in clause (f) of Section 6.01,
such declaration shall be automatically rescinded and annulled if the default
on such Debt that caused such declaration pursuant to clause (f) of Section 6.01
is cured, waived or otherwise remedied as provided in such Debt within 30 days
after such declaration of acceleration and if (1) the rescission or
annulment


 


34
















 


of such declaration shall
not conflict with any judgment or decree of a court of competent jurisdiction
and (2) all existing Events of Default with respect to the Securities of
such series, except nonpayment of Principal thereof, premium thereto, and interest
thereon, that occurred or are occurring due solely because of such declaration,
have been cured or waived.


 


The foregoing provisions, however, are subject to
the condition that if, at any time after the Principal (or, if the Securities
are Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.03) of
the Securities of any series (or of all the Securities, as the case may be)
shall have been so declared or become due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of each such series (or of all the Securities, as the case may
be) and the Principal of any and all Securities of each such series (or of all
the Securities, as the case may be) which shall have become due otherwise than
by acceleration (with interest upon such Principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series to the date of such payment or deposit) and such
amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07,
and if any and all Events of Default under the Indenture, other than the
non-payment of the Principal of and interest on Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein, then and in every such case the Holders of a majority in
aggregate Principal amount of all the then outstanding Securities of all such
series that have been accelerated (voting as a single class), by written notice
to the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.


 


For all purposes under this Indenture, if a portion
of the Principal of any Original Issue Discount Securities shall have been
accelerated and declared or become due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the Principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.


 


35

















 


Section 6.03.  Other
Remedies.  If an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.


 


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.


 


Section 6.04.  Waiver of
Past Defaults.  Subject to
Sections 6.02, 6.07 and 9.02, the Holders of at least a majority in Principal
amount (or, if the Securities are Original Issue Discount Securities, such
portion of the Principal as is then accelerable under Section 6.02) of the
outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of Principal of, premium, if any, or interest on any Security as
specified in clauses (a) or (b) of Section 6.01 or in respect of
a covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected.  Upon any such waiver, such Default shall cease
to exist, and any Event of Default with respect to the Securities of such
series arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.


 


Section 6.05.  Control by
Majority.  Subject to Sections
7.01 and 7.02(e), the Holders of at least a majority in aggregate Principal
amount (or, if any Securities are Original Issue Discount Securities, such
portion of the Principal as is then accelerable under Section 6.02) of the
outstanding Securities of all series affected (voting as a single class) may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction (it being
understood that the Trustee does not have an affirmative duty to ascertain
whether or not any such directions are unduly prejudicial to such Holders); and
provided further, that the Trustee may take any other action it deems proper
that is not inconsistent with any directions received from Holders of
Securities pursuant to this Section 6.05.


 


Section 6.06.  Limitation
on Suits.  No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:


 


36

















 


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


 


(b)      the
Holders of at least 25% in aggregate Principal amount of outstanding Securities
of all such series affected shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


(c)       such
Holder or Holders have offered to the Trustee indemnity or security reasonably
satisfactory to it against any costs, liabilities or expenses to be incurred in
compliance with such request;


 


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


 


(e)       during
such 60-day period, the Holders of a majority in aggregate Principal amount of
the outstanding Securities of all such affected series have not given the
Trustee a direction that is inconsistent with such written request.


 


A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over such other
Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such Holders.  The Trustee shall mail to all Holders any
notice it receives from Holders under this Section.


 


Section 6.07.  Rights of
Holders to Receive Payment.  Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder’s Security
on or after the respective due dates expressed on such Security, 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.  If an Event
of Default with respect to the Securities of any series in payment of Principal
or interest specified in clause (a) or (b) of Section 6.01  occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount (or such portion thereof as specified in the terms
established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in such Securities,
and such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.07.


 


37

















 


Section 6.09.  Trustee May File
Proofs of Claim.  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 (including any claim
for amounts due the Trustee under Section 7.07) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.07.  To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that may be distributable in
respect of the Company’s obligations under this Indenture (or the obligations
of any other obligor on the Securities), or that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise.  Nothing
herein contained shall be deemed to empower the Trustee to authorize or consent
to, or accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding. 
The Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or
other similar committee.


 


Section 6.10.  Application
of Proceeds.  After an Event
of Default, any money or other property distributable in respect of the Company’s
or Subsidiary Guarantors’ obligations under this Indenture, or any moneys or
property held or collected by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of Principal or interest, upon presentation of the several
Securities and coupons appertaining to such Securities in respect of which
moneys have been collected and noting thereon the payment, or issuing
Securities of such series and tenor in reduced Principal amounts in exchange
for the presented Securities of such series and tenor if only partially paid,
or upon surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due or
reasonably anticipated to become due the Trustee under Section 7.07
applicable to the Securities of such series in respect of which moneys or
property are held or have been collected;


 


38

















 


SECOND:  In case the Principal of the Securities of
such series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest
has been collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such payments
to be made ratably to the persons entitled thereto, without discrimination or
preference;


 


THIRD:  In case the Principal of the Securities of
such series in respect of which moneys have been collected shall have become
and shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for Principal and
interest, with interest upon the overdue Principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without preference
or priority of Principal over interest or Yield to Maturity, or of interest or
Yield to Maturity over Principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such Principal and accrued
and unpaid interest or Yield to Maturity; and


 


FOURTH:  To the payment of the remainder, if any, to
the Company or any other person lawfully entitled thereto.


 


Section 6.11.  Restoration
of Rights and Remedies.  If
the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored to their
former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.


 


Section 6.12.  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, in either
case in respect to the Securities of any series, a court may require any party
litigant in such suit (other than the Trustee) to file an undertaking to pay
the costs of the suit, and the court may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant (other than the Trustee)
in the suit having due regard to the merits and 


 


39

















 


good faith of the claims or defenses made by the
party litigant.  This Section 6.12
does not apply to a suit by a Holder pursuant to Section 6.07, a suit
instituted by the Trustee or a suit by Holders of more than 10% in Principal
amount of the outstanding Securities of such series.


 


Section 6.13.  Rights and
Remedies Cumulative.  Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.08, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 6.14.  Delay or
Omission not Waiver.  No delay
or omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article 6 or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.


 


ARTICLE 7

TRUSTEE


 


Section 7.01. 
General.  The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act and as set forth herein. 
Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense.  Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7.


 


Section 7.02.  Certain
Rights of Trustee.  Subject to
Trust Indenture Act Sections 315(a) through (d):


 


(a)       the
Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel (or
both), statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it 


 


40

















 


to be genuine and to have been signed or presented by the proper person
or persons.  The Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit;


 


(b)     before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel, which shall conform to Section 11.04
and shall cover such other matters as the Trustee may reasonably request.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.  Subject to Sections 7.01 and
7.02, whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof;


 


(c)       the
Trustee may act through its attorneys and agents not regularly in its employ
and shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care;


 


(d)      any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof certified by the Secretary or
an Assistant Secretary of the Company;


 


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


 


(f)       the
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers or for
any action it takes or omits to take in accordance with the direction of the
Holders in accordance with Section 6.05 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;


 


41

















 


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


 


(h)      prior
to the occurrence of an Event of Default hereunder and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
Officers’ Certificate, Opinion of Counsel, Board Resolution, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a majority
in aggregate Principal amount of the Securities of all series affected then
outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding;


 


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


 


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


 


Section 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 Company or its Affiliates
with the same rights it would have if it were not the Trustee.  Any Agent may do the same with like
rights.  However, the Trustee is subject
to Trust Indenture Act Sections 310(b) and 311.  For purposes of Trust Indenture Act Section 311(b)(4) and
(6), the following terms shall mean:


 


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


 


42

















 


(b)        “self-liquidating paper”
means any draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.


 


To the extent permitted by the Trust Indenture Act,
the Trustee shall not be deemed to have a conflicting interest with respect to
any other indenture of the Company or any Subsidiary Guarantor or Securities of
any series by virtue of being a trustee under this Indenture with respect to
any particular series of Securities.


 


Section 7.04.  Trustee’s
Disclaimer.  The recitals
contained herein and in the Securities (except the Trustee’s certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same.  Neither the Trustee nor any of its
agents (a) makes any representation as to the validity or adequacy of this
Indenture or the Securities or the Subsidiary Guaranties and (b) shall be accountable
for the Company’s use or application of the proceeds from the Securities.


 


Section 7.05.  Notice of
Default.  If any Default with
respect to the Securities of any series occurs and is continuing and if such
Default is known to the actual knowledge of a Responsible Officer with the
Corporate Trust Department of the Trustee, the Trustee shall give to each
Holder of Securities of such series notice of such Default within 90 days after
it occurs (a) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (b) to all Holders of
Securities of such series in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, unless such Default shall have been cured or waived
before the mailing or publication of such notice; provided, however, that,
except in the case of a Default in the payment of the Principal of or interest
on any Security, the Trustee shall be protected in withholding such notice if
the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.


 


Section 7.06.  Reports by
Trustee to Holders.    The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within 60 days after each May 15
following the 


 


43

















 


date of this Indenture, deliver to Holders a brief
report, dated as of such May 15, which complies with the provisions of
such Section 313(a).


 


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


 


Section 7.07.  Compensation
and Indemnity.  The Company
shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services.  The
compensation of the Trustee shall not be limited by any law on compensation of
a Trustee of an express trust.  The
Company shall reimburse the Trustee and any predecessor Trustee upon request
for all reasonable out-of-pocket expenses, disbursements and advances incurred
or made by the Trustee or such predecessor Trustee.  Such expenses shall include the reasonable
compensation and expenses of the Trustee’s or such predecessor Trustee’s
agents, counsel and other persons not regularly in their employ.


 


The Company shall indemnify the Trustee and any
predecessor Trustee for, and hold them harmless against, any loss or liability
or expense incurred by them without negligence or bad faith on their part
arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or of series
thereof or the trusts hereunder and the performance of duties under this
Indenture and the Securities, including the costs and expenses of defending
themselves against or investigating any claim or liability and of complying
with any process served upon them or any of their officers in connection with
the exercise or performance of any of their powers or duties under this
Indenture and the Securities.


 


To secure the Company’s payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.


 


The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the resignation or removal of the Trustee, the satisfaction and
discharge of this Indenture or the rejection or termination of this Indenture
under bankruptcy law.  Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or coupons,
and the Securities are hereby subordinated to such senior claim.  Without prejudice to any other rights
available to the Trustee under applicable law, if the Trustee renders services
and incurs expenses following an Event of Default under Section 6.01(d) 


 


44

















 


or Section 6.01(e) hereof,
the parties hereto and the holders by their acceptance of the Securities hereby
agree that such expenses are intended to constitute expenses of administration
under any bankruptcy law.


 


Section 7.08.  Replacement
of Trustee.  A resignation or
removal of the Trustee as Trustee with respect to the Securities of any series
and appointment of a successor Trustee as Trustee with respect to the
Securities of any series shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.


 


The Trustee may resign as Trustee with respect to
the Securities of any series at any time by so notifying the Company in
writing.  The Holders of a majority in
Principal amount of the outstanding Securities of any series may remove the
Trustee as Trustee with respect to the Securities of such series by so
notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company.  The Company may remove the Trustee as Trustee
with respect to the Securities of any series if: (i) the Trustee is no
longer eligible under Section 7.11 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed as Trustee with
respect to the Securities of any series, or if a vacancy exists in the office
of Trustee with respect to the Securities of any series for any reason, the
Company shall promptly appoint a successor Trustee with respect thereto.  Within one year after the successor Trustee
takes office, the Holders of a majority in Principal amount of the outstanding
Securities of such series may appoint a successor Trustee in respect of such
Securities to replace the successor Trustee appointed by the Company.  If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by Section 7.09
within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in Principal amount of the
outstanding Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect thereto.


 


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


 


Notwithstanding replacement of the Trustee with
respect to the Securities of any series pursuant to this Section 7.08 and Section 7.09,
the Company’s obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.


 


Section 7.09.  Acceptance
of Appointment by Successor.  In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every 


 


45

















 


such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges and subject to the lien provided for in Section 7.07,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.


 


In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.


 


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


 


46
















 


No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be eligible
under this Article and qualified under Section 310(b) of the
Trust Indenture Act.


 


Section 7.10.  Successor
Trustee By Merger, Etc.  If
the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had been
named as the Trustee herein.


 


Section 7.11. 
Eligibility.  This
Indenture shall always have a Trustee who satisfies the requirements of Trust
Indenture Act Section 310(a).  The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.


 


Section 7.12.  Money Held
in Trust.  The Trustee shall
not be liable for interest on any money received by it except as the Trustee
may agree in writing with the Company. 
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article 8 of this Indenture.


 


ARTICLE 8


SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS


 


Section 8.01.  Satisfaction
and Discharge of Indenture.  If
at any time (a)(i) all Securities of any series issued that have been
authenticated and delivered have been delivered by the Company to the Trustee
for cancellation (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08);
or (ii) all the Securities of any series issued that have not been
delivered by the Company to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by such Trustee in the
Company’s name and at the Company’s expense, the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Company in accordance with Section 8.04) or U.S. Government
Obligations, maturing as to principal and interest in such amounts and at such
times as will insure (without consideration of the reinvestment of such
interest) the availability of cash, or a combination thereof, sufficient in the
written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of such series
(other than any Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in 


 


47

















 


Section 2.08) not theretofore delivered to the
Trustee for cancellation, including Principal and interest due or to become due
on or prior to such date of maturity or redemption as the case may be; (b) the
Company has paid or caused to be paid all other sums then due and payable under
this Indenture with respect to all Securities of such series; and (c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture with respect to
all Securities of such series pursuant to this Section 8.01 have been
complied with, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of
registration of transfer and exchange of securities of such series, and the
Company’s right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
holders to receive payments of Principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration) and remaining
rights of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them), and the Trustee, on demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel and at the cost and expense of the
Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to such series; provided that the rights of Holders of the
Securities to receive amounts in respect of Principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange
upon which the Securities are listed. 
The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.


 


Section 8.02.  Application
by Trustee of Funds Deposited for Payment of Securities.  Subject to Section 8.04, all
moneys (including U.S. Government Obligations and the proceeds thereof)
deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06
shall be held in trust and applied by it to the payment, either directly or
through any paying agent to the Holders of the particular Securities of such series
for the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for Principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.


 


Section 8.03.  Repayment of
Moneys Held by Paying Agent.  In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Company, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.


 


48

















 


Section 8.04.  Return of
Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.  Any moneys deposited with or paid
to the Trustee or any paying agent for the payment of the Principal of or
interest on any Security of any series and not applied but remaining unclaimed
for two years after the date upon which such Principal or interest shall have
become due and payable, shall, upon the written request of the Company and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Company by the Trustee
for such series or such paying agent, and the Holder of the Security of such
series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Company for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.


 


Section 8.05.  Defeasance
and Discharge of Indenture.  The
Company shall be deemed to have paid and shall be discharged from any and all
obligations in respect of the Securities of any series, after the deposit
referred to in clause (i) hereof has been made, and the provisions of this
Indenture shall no longer be in effect with respect to the Securities of such
series (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except as to: (a) rights of Holders
of the Securities of such series to receive payments of Principal thereof,
premium thereto, and interest thereon, upon the original stated due dates
therefor, (b) the Company’s obligations with respect to the issuance of
temporary Securities and the registration of transfer with respect to the
Securities of such series, the Company’s right of optional redemption,
substitution of mutilated, defaced, destroyed, lost or stolen Securities of
such series and the maintenance an office or agency for payment for security
payments held in trust pursuant to clause (i) hereof, (c) the rights,
obligations and immunities of the Trustee hereunder, and (d) the
defeasance provisions contained in Article 8 of this Indenture; provided that the following conditions
shall have been satisfied:


 


(i)                                     with reference to this Section 8.05
the Company irrevocably has deposited or caused to be deposited with the
Trustee (or another qualifying trustee satisfying the requirements of Section 7.11)
as trust funds in trust, for the purposes of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of the Securities of such series, (A) money in an amount, (B) U.S.
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later than one
day before the due date of any payment referred to in subclause (x) or (y) of
this clause (i), or (C) a combination thereof, in each case sufficient, in
the written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of reinvestment and after
payment of all federal, state and local taxes or other charges and assessments
in respect thereof, and which shall be applied by 


 


49

















 


the Trustee to pay and discharge (x) all of the Principal of,
premium, if any, and each installment of interest on the outstanding Securities
of such series on the maturity or due dates thereof or if the Company has made
irrevocable arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee, the redemption date, as the case may be, and (y) any
mandatory sinking fund payments or analogous payments applicable to the
Securities of such series on the day on which such payments are due and payable
in accordance with the terms of Securities of such series and the Indenture
with respect to the Securities of such series;


 


(ii)                                  the Company has delivered to
the Trustee an Opinion of Counsel to the effect that, the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or (b) stating
that, under then applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel will confirm that,
Holders of Securities of such series will not recognize gain or loss for U.S.
federal income tax purposes as a result of the Company’s exercise of its option
under this Section 8.05 and will be subject to U.S. federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;


 


(iii)                               no Default under either
clause (d) or clause (e) of Section 6.01 (other than with
respect to any Subsidiary Guarantor) shall have occurred and be continuing at
such time;


 


(iv)                              if at such time the
Securities of such series are listed on a national securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Securities of such series will not be delisted as a result of such deposit,
defeasance and discharge;


 


(v)                                 the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and discharge
under this Section 8.05 have been complied with; and


 


(vi)                              if the Securities of such
series are to be redeemed prior to the final maturity thereof (other than from
mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made.


 


Section 8.06.  Defeasance
of Certain Obligations.  The
Company may omit to comply with any term, provision or condition set forth in,
and this Indenture will no longer be in effect with respect to, any covenant
established pursuant to Section 2.03(s) and clause (c) and
clause (f) (with respect to any


 


50

















 


covenants established pursuant to Section 2.03(s))
of Section 6.01 shall be deemed not to constitute a Default or an Event of
Default with respect to Securities of any series, if:


 


(a)                        with reference
to this Section 8.06, the Company has irrevocably deposited or caused to
be deposited with the Trustee (or another qualifying trustee satisfying the
requirements of Section 7.11) as trust funds in trust, for the purposes of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefits of the Holders of the Securities of such
series, (i) money in an amount, (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before the due
date of any payment referred to in subclause (x) or (y) of this
clause (a), or (iii) a combination thereof, in each case sufficient, in
the written opinion of an internationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of reinvestment and after
payment of all federal, state and local taxes or other charges and assessments
in respect thereof, and which shall be applied by the Trustee to pay and
discharge (x) all of the Principal of, premium, if any, and each
installment of interest on the outstanding Securities of such series on the
maturity or due dates thereof or if the Company has made irrevocable
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee, the redemption date, as the case may be, and (y) any
mandatory sinking fund payments or analogous payments applicable to the
Securities of such series on the day on which such payments are due and payable
in accordance with the terms of the Securities of such series and the Indenture
with respect to the Securities of such series;


 


(b)                       the Company has
delivered to the Trustee an Opinion of Counsel stating that under the
applicable U.S. federal income tax law, Holders of Securities of such series
will not recognize gain or loss for U.S. federal income tax purposes as a
result of the Company’s exercise of its option under this Section 8.06 and
will be subject to U.S. federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred;


 


(c)                        no Default
under either clause (d) or clause (e) of Section 6.01 (other
than with respect to any Subsidiary Guarantor) shall have occurred and be
continuing at such time;


 


(d)                       if at such time
the Securities of such series are listed on a national securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Securities of such series will not be delisted as a result of such deposit,
defeasance and discharge;


 


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(e)                        the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance under
this Section have been complied with; and


 


(f)                          if the
Securities of such series are to be redeemed prior to the final maturity
thereof (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made.


 


Section 8.07. 
Reinstatement.  If the
Trustee or paying agent is unable to apply any monies or U.S. Government
Obligations in accordance with Article 8 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
and each Subsidiary Guarantor’s obligations under this Indenture, each
Subsidiary Guaranty and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article until such time as
the Trustee or paying agent is permitted to apply all such monies or U.S.
Government Obligations in accordance with Article 8; provided, however, that if the Company has
made any payment of Principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the monies or
U.S. Government Obligations held by the Trustee or paying agent.


 


Section 8.08.  Indemnity.
The Company shall pay and indemnify the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.08 and Section 8.02, the “Trustee”)
against any tax, fee or other charge, imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 8.01, 8.05 or 8.06 or
the principal or interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
Securities and any coupons appertaining thereto.


 


Section 8.09.  Excess
Funds. Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon request of the Company, any money or U.S. Government Obligations (or
other property and any proceeds therefrom) held by it as provided in Section 8.01,
8.05 or 8.06 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect a discharge or defeasance, as applicable,
in accordance with this Article 8.


 


Section 8.10.  Qualifying
Trustee. Any trustee appointed pursuant to Section 8.05 or 8.06
for the purpose of holding money or U.S. Government Obligations deposited
pursuant to such Sections shall be appointed under an agreement in form
acceptable to the Trustee and shall provide to the Trustee a certificate, upon
which certificate the Trustee shall be entitled to conclusively rely, 


 


52

















 


that all conditions precedent provided for herein to
the related defeasance have been complied with. 
In no event shall the Trustee be liable for any acts or omissions of
said trustee.


 


ARTICLE 9


AMENDMENTS,
SUPPLEMENTS AND WAIVERS


 


Section 9.01.  Without
Consent of Holders.  The
Company, the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture or the Securities of any series without notice to or the consent of
any Holder:


 


(a)                                  to cure any ambiguity,
defect or inconsistency in this Indenture; provided
that such amendments or supplements shall not adversely affect the interests of
the Holders in any material respect;


 


(b)                                 to comply with Article 5;


 


(c)                                  to maintain the
qualification of this Indenture under the Trust Indenture Act;


 


(d)                                 to evidence and provide for
the acceptance of appointment hereunder with respect to the Securities of any
or all series by a successor Trustee and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 7.09;


 


(e)                                  to establish the form or
forms or terms of Securities of any series or of the coupons appertaining to
such Securities as permitted by Section 2.03;


 


(f)                                    to add any additional Event
of Default;


 


(g)                                 to add any covenant or
agreement for the benefit of any Holder or to surrender any right or power
conferred upon the Company;


 


(h)                                 to provide for
uncertificated or Unregistered Securities and to make all appropriate changes
for such purpose;


 


(i)                                     to make any change that does
not materially and adversely affect the rights of any Holder; and


 


(j)                                     to add guaranties with
respect to the Securities, including any Subsidiary Guaranties, or to secure
the Securities.


 


Section 9.02.  With Consent
of Holders.  Subject to
Sections 6.04 and 6.07, without prior notice to any Holders, the Company, the
Subsidiary Guarantors and 


 


53

















 


the Trustee may amend this Indenture and the
Securities of any series with the written consent of the Holders of a majority
in Principal amount of the outstanding Securities of each series affected by
such amendment, and the Holders of a majority in Principal amount of the
outstanding Securities of each series affected thereby by written notice to the
Trustee may waive future compliance by the Company with any provision of this
Indenture or the Securities of such series.


 


Notwithstanding the provisions of this Section 9.02,
without the consent of each Holder affected thereby, an amendment or waiver,
including a waiver pursuant to Section 6.04, may not:


 


(a)                        change the
stated maturity of the Principal of, or any sinking fund obligation or any
installment of interest on, such Holder’s Security,


 


(b)                       reduce the
Principal amount thereof, premium thereon or the rate of interest thereon
(including any amount in respect of original issue discount) or extend the time
of payment of interest thereon;


 


(c)                        change the
place of payment or the coin or currency in which payment of the Principal of,
premium on, or interest on the Securities of any series shall be payable;


 


(d)                       impair the
right of any Holder of any Security of any series to bring suit for the
enforcement of payment of Principal of or interest, if any, on such Holder’s
Security on or after the respective due dates expressed on such Security or
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Securities of such series;


 


(e)                        reduce the
above stated percentage of outstanding Securities the consent of whose holders
is necessary to modify or amend the Indenture with respect to the Securities of
the relevant series;


 


(f)                          reduce the
percentage in Principal amount of outstanding Securities of the relevant series
the consent of whose Holders is required for any supplemental indenture or for
any waiver of compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture; and


 


(g)                       make any change
in, or release other than in accordance with any Subsidiary Guaranty or this
Indenture, any Subsidiary Guaranty that would adversely affect the Holders.


 


A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series with
respect to such covenant or provision,


 


54

















 


shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.


 


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


 


After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver.  The Company will mail supplemental indentures
to Holders upon request.  Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.


 


Section 9.03.  Revocation
and Effect of Consent.  Until
an amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any
Security.  However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security.  Such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective.  An amendment, supplement or waiver shall
become effective with respect to any Securities affected thereby on receipt by
the Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.


 


The Company may, but shall not be obligated to, fix
a record date (which may be not less than five nor more than 60 days prior to
the solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver.  If a record date
is fixed, then, notwithstanding the immediately preceding paragraph, those
Persons who were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such Persons continue to be such Holders after such record date.  No such consent shall be valid or effective
for more than 90 days after such record date.


 


After an amendment, supplement or waiver becomes
effective with respect to the Securities of any series affected thereby, it
shall bind every Holder of such Securities unless it is of the type described in
any of clauses (a) through (g) of Section 9.02.  In case of an amendment or waiver of the type
described in clauses (a) through (g) of Section 9.02, the
amendment or waiver shall bind each such Holder who has consented to it and
every subsequent Holder of a Security that evidences the same indebtedness as
the Security of the consenting Holder.


 


Section 9.04.  Notation on
or Exchange of Securities.  If
an amendment, supplement or waiver changes the terms of any Security, the
Trustee may require 


 


55

















 


the Holder thereof to deliver it to the
Trustee.  The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security of the same series and tenor that reflects the changed terms.


 


Section 9.05.  Trustee to
Sign Amendments, Etc.  The
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article 9 is authorized
or permitted by this Indenture, stating that all requisite consents have been
obtained or that no consents are required and stating that such supplemental
indenture constitutes the legal, valid and binding obligation of the Company
and the Subsidiary Guarantors, enforceable against the Company and the
Subsidiary Guarantors in accordance with its terms, subject to customary
exceptions.  The Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


 


Section 9.06.  Conformity
with Trust Indenture Act.  Every
supplemental indenture executed pursuant to this Article 9 shall conform
to the requirements of the Trust Indenture Act as then in effect.


 


ARTICLE 10


SUBSIDIARY
GUARANTIES


 


Section 10.01. 
Applicability of Article.  Unless the Company elects to issue any
series of Securities without the benefit of the Subsidiary Guaranties, which election
shall be evidenced in or pursuant to the Board Resolution or supplemental
indenture establishing such series of Securities pursuant to Section 2.03,
the provisions of this Article 10 shall be applicable to each series of
Securities except as otherwise specified in or pursuant to the Board Resolution
or supplemental indenture establishing such series pursuant to Section 2.03.


 


Section 10.02.  Subsidiary Guaranties.  Subject
to Section 10.01, each Subsidiary Guarantor hereby fully, unconditionally
and irrevocably guarantees, jointly and severally, to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual payment
of principal of and interest on the Securities when due, whether at maturity,
by acceleration, by redemption or otherwise, and all other monetary obligations
of the Company under this Indenture and the Securities and (b) the full
and punctual performance within applicable grace periods of all other
obligations of the Company under this Indenture and the Securities (all the
foregoing being hereinafter collectively called the “Guaranteed
Obligations”). Each Subsidiary Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, 


 


56

















 


without notice or further assent from such
Subsidiary Guarantor and that such Subsidiary Guarantor will remain bound under
this Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.


 


Each Subsidiary Guarantor waives presentation to,
demand of, payment from and protest to the Company of any of the Guaranteed
Obligations and also waives notice of protest for nonpayment. Each Subsidiary
Guarantor waives notice of any default under the Securities or the Guaranteed
Obligations. The obligations of each Subsidiary Guarantor hereunder shall not
be affected by (1) the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any right or remedy against the Company or any
other Person (including any Subsidiary Guarantor) under this Indenture, the
Securities or any other agreement or otherwise; (2) any extension or
renewal of any thereof; (3) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the
Securities or any other agreement; (4) the release of any security held by
any Holder or the Trustee for the Guaranteed Obligations or any of them; (5) the
failure of any Holder or the Trustee to exercise any right or remedy against
any other guarantor of the Guaranteed Obligations; or (6) except as set
forth in Section 10.07, any change in the ownership of such Subsidiary
Guarantor.


 


Each Subsidiary Guarantor further agrees that its
Subsidiary Guaranty herein constitutes a guarantee of payment, performance and
compliance 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.


 


Except as expressly set forth in Article 8 and
Sections 10.03 and 10.07, the obligations of each Subsidiary 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 Subsidiary 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
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
such Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.


 


Each Subsidiary Guarantor further agrees that its
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 


 


57

















 


Obligation is rescinded or
must otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.


 


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 Subsidiary Guarantor by virtue hereof, upon the failure of
the Company to pay the principal of 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 Subsidiary 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 (A) the
unpaid amount of such Guaranteed Obligations, (B) accrued and unpaid
interest on such Guaranteed Obligations (but only to the extent not prohibited
by law) and (C) all other monetary Guaranteed Obligations of the Company
to the Holders and the Trustee.


 


Each Subsidiary Guarantor agrees that it shall not
be entitled to any right of subrogation in respect of any Guaranteed
Obligations until payment in full of all monetary obligations of the Company
under this Indenture and the Securities. 
Each Subsidiary Guarantor further agrees that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the maturity
of the Guaranteed Obligations may be accelerated as provided in Article 6
for the purposes of such Subsidiary Guarantor’s Subsidiary Guaranty herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and (ii) in the
event of any declaration of acceleration of such Guaranteed Obligations as
provided in Article 6, such Guaranteed Obligations (whether or not due and
payable) shall forthwith become due and payable by such Subsidiary Guarantor
for the purposes of this Section.


 


Each Subsidiary Guarantor also agrees to pay any and
all amounts due to the Trustee pursuant to Section 7.07 and any and all
costs and expenses (including reasonable attorneys’ fees) incurred by the
Trustee or any Holder in enforcing any rights under this Section.


 


Section 10.03.  Limitation on Liability. 
Any term or provision of this Indenture to the contrary notwithstanding,
the maximum aggregate amount of the Guaranteed Obligations guaranteed hereunder
by any Subsidiary Guarantor shall not exceed the maximum amount that can be
hereby guaranteed without rendering this Indenture, as it relates to such
Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.


 


Section 10.04.  Successors and Assigns. 
This Article 10 shall be binding upon each Subsidiary 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


 


58
















 


Securities shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
of this Indenture.


 


Section 10.05.  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 10 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 10 at law, in equity, by
statute or otherwise.


 


Section 10.06.  Modification.  No modification,
amendment or waiver of any provision of this Article 10, nor the consent
to any departure by any Subsidiary 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 Subsidiary
Guarantor in any case shall entitle such Subsidiary Guarantor to any other or
further notice or demand in the same, similar or other circumstances.


 


Section 10.07.  Release of Subsidiary Guarantor.  A Subsidiary Guarantor will be released from
its obligations under this Article 10 (other than any obligation that may
have arisen under Section 10.08).


 


(a)        upon the sale (including any sale pursuant to any exercise of
remedies by a holder of indebtedness of the Company or of such Subsidiary
Guarantor) or other disposition (including by way of consolidation or merger)
of a Subsidiary Guarantor,


 


(b)        upon the sale or disposition of all or substantially all the
assets of such Subsidiary Guarantor,


 


(c)        upon defeasance of the Securities pursuant to Article 8,


 


(d)        upon the discharge of the Company’s obligations in accordance
with this Indenture; or


 


(e)        upon delivery of an Officers’ Certificate to the Trustee that
such Subsidiary Guarantor does not guarantee the obligations of the Company
under any Debt of the Company and that such other guarantees have been released
other than through discharges as a result of payment by such Subsidiary
Guarantor on such guarantees;


 


provided, however, that in the case of clauses (a) and
(b) above, (i) such sale or other disposition is made to a Person
other than the Company or a Subsidiary of the Company and (ii) such sale
or disposition is otherwise permitted by this Indenture.


 


59

















 


In each such case, prior to release and discharge of
such Subsidiary Guaranty, the Company will have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that, as required
by Section 11.04, all conditions precedent herein provided for relating to
such transactions have been complied with and that such release is authorized
and permitted hereunder.


 


Upon being provided an Officers’ Certificate and an
Opinion of Counsel complying with this Section 10.07, the Trustee shall
execute any documents reasonably requested by the Company evidencing such
release.


 


Section 10.08  Contribution.  Each Subsidiary Guarantor that makes a
payment under its Subsidiary Guaranty shall be entitled upon payment in full of
all Guaranteed Obligations under this Indenture to a contribution from each
other Subsidiary Guarantor in an amount equal to such other Subsidiary
Guarantor’s pro rata portion of such payment based on the respective net assets
of all the Subsidiary Guarantors at the time of such payment determined in
accordance with GAAP.


 


ARTICLE 11


MISCELLANEOUS


 


Section 11.01.  Trust
Indenture Act of 1939.  This
Indenture shall incorporate and be governed by the provisions of the Trust
Indenture Act that are required to be part of and to govern indentures
qualified under the Trust Indenture Act.


 


Section 11.02. 
Notices.  Any notice or
communication shall be sufficiently given if written and (a) if delivered
in person when received or (b) if mailed by first class mail 5 days after
mailing, (c) if sent by a national courier service that provides next day
delivery, the next Business Day, or (d) as between the Company or any
Subsidiary Guarantor and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:


 


if to the Company or any
Subsidiary Guarantor:


 


Valmont
Industries, Inc.

One Valmont Plaza 

Omaha, Nebraska 68154

Telecopy: (402) 963-1095

Attention:  Terry McClain


 


if to the Trustee:


 


Wells
Fargo Bank, National Association

230 W. Monroe Street

Chicago, Illinois 60606


 


60

















 


Telecopy:
(312) 726-2158 

Attention: Corporate Trust Services


 


The Company, the Subsidiary Guarantors or the
Trustee by written notice to the other may designate additional or different
addresses for subsequent notices or communications.


 


Any notice or communication shall be sufficiently
given to Holders of any Unregistered Securities, by publication at least once
in an Authorized Newspaper in The City of New York, or with respect to any
Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits at least once in an Authorized
Newspaper in London, and by mailing to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act at such addresses as were so furnished to the Trustee
and to Holders of Registered Securities by mailing to such Holders at their
addresses as they shall appear on the Security Register.  Notice mailed shall be sufficiently given if
so mailed within the time prescribed. 
Copies of any such communication or notice to a Holder shall also be
mailed to the Trustee and each Agent at the same time.


 


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.  Except as otherwise
provided in this Indenture, if a notice or communication is mailed in the
manner provided in this Section 11.02, it is duly given, whether or not
the addressee receives it.


 


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


 


In case it shall be impracticable to give notice as
herein contemplated, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder.


 


Section 11.03.  Certificate
and Opinion as to Conditions Precedent.  Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:


 


(a)           an
Officers’ Certificate 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


 


(b)           an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.


 


61

















 


Section 11.04.  Statements
Required in Certificate or Opinion.  Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificate required by Section 4.04)
shall include:


 


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


 


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


 


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


 


(d)           a
statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers’ Certificate or certificates of public
officials.


 


Section 11.05.  Evidence of
Ownership.  The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
Holder of any Unregistered Security and the Holder of any coupon as the
absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. 
The fact of the holding by any Holder of an Unregistered Security, and
the identifying number of such Security and the date of his holding the same,
may be proved by the production of such Security or by a certificate executed
by any trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be deemed by
the Trustee to be satisfactory.  Each
such certificate shall be dated and shall state that on the date thereof a
Security bearing a specified identifying number was deposited with or exhibited
to such trust company, bank, banker or recognized securities dealer by the
person named in such certificate.  Any
such certificate may be issued in respect of one or more Unregistered
Securities specified therein.  The
holding by the person named in any such certificate of any Unregistered
Securities specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any determination
of such holding (1) another certificate bearing a later date issued in
respect of the same Securities shall be produced or (2) the Security
specified in such certificate shall be produced by some other Person, or (3) the
Security specified in such certificate shall have ceased to be
outstanding.  Subject to Article 7,
the fact and date of the 


 


62

















 


execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.


 


The Company, the Trustee and any agent of the
Company or the Trustee may deem and treat the person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the Principal of and, subject to the provisions of this
Indenture, interest on such Registered Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.


 


Section 11.06.  Rules by
Trustee, Paying Agent or Registrar.  The
Trustee may make reasonable rules for action by or at a meeting of
Holders.  The Paying Agent or Registrar
may make reasonable rules for its functions.


 


Section 11.07.  Payment Date
Other Than a Business Day.  Except
as otherwise provided with respect to a series of Securities, if any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force
and effect as if made on such date and no interest shall accrue in respect of
such payment for the period from and after such date.


 


Section 11.08.  Governing
Law.  The laws of the State of
New York shall govern this Indenture and the Securities.


 


Section 11.09.  No Adverse
Interpretation of Other Agreements.  This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company.  Any such indenture or agreement may not be
used to interpret this Indenture.


 


Section 11.10.  Successors.  All agreements of the Company or
any Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors.  All agreements of the
Trustee in this Indenture shall bind its successors.


 


Section 11.11.  Duplicate
Originals.  The parties may
sign any number of copies of this Indenture. 
Each signed copy shall be an original, but all of them together
represent the same agreement.


 


Section 11.12. 
Separability.  In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


63

















 


Section 11.13.  Table of
Contents, Headings, Etc.  The
Table of Contents and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered
a part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.


 


Section 11.14. 
Incorporators, Stockholders, Officers and Directors of Company Exempt
from Individual Liability.  No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture or any indenture supplemental hereto, or in any Security or any
coupons appertaining thereto, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer, director or employee, as such, of the Company, any
Subsidiary Guarantor or of any successor, either directly or through the
Company, any Subsidiary Guarantor or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.


 


Section 11.15.  Judgment
Currency.  The Company agrees,
to the fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Principal of or interest on the Securities of any
series (the “Required Currency”)
into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the Required Currency with
the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a Business Day, then, to the extent permitted
by applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.


 


64

















 


Section 11.16.  Waiver of
Jury Trial. EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE
TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES, THE SUBSIDIARY GUARANTIES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 11.17.  Force
Majeure. In no event shall the Trustee be responsible or liable for
any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control,
including, 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.


 


[Signature Pages Follow]


 


65

















 


SIGNATURES


 


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


 


	
   

  	
  VALMONT
  INDUSTRIES, INC. 

  
	
   

  	
  as the Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President & Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PIROD,
  INC. 

  
	
   

  	
  as a Subsidiary Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALMONT
  COATINGS, INC. 

  
	
   

  	
  as a Subsidiary Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALMONT
  NEWMARK, INC.

  
	
   

  	
  as a Subsidiary Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Terry J. McClain

  
	
   

  	
   

  	
  Name:

  	
  Terry
  J. McClain

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  



 

















 


	
  Signed
  sealed and delivered by Valmont Queensland Pty Ltd ACN 142 183 800 in
  accordance with s127 of the Corporations Act 2001
  (Cth) in the presence of:

  	
   

  	
  VALMONT QUEENSLAND PTY LTD. 

  as a Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  E. Robert Meaney

  
	
   

  	
   

  	
   

  	
  Name:

  	
  E.
  Robert Meaney

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Roger Andrew Massey

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Roger
  Andrew Massey

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed
  sealed and delivered by Valmont Group Pty Ltd ACN 142 189 295 in accordance
  with s127 of the Corporations Act 2001 (Cth)
  in the presence
  of:

  	
   

  	
  VALMONT GROUP PTY LTD. 

  as a Subsidiary Guarantor

   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  E. Robert Meaney

  
	
   

  	
   

  	
   

  	
  Name:

  	
  E.
  Robert Meaney

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Roger Andrew Massey

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Roger
  Andrew Massey

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION 

  
	
   

  	
   

  	
  as the Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Gregory S. Clarke

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gregory
  S. Clarke

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President