EXHIBIT 4.12


 


[FORM OF INDENTURE]


 


STEEL DYNAMICS, INC.


 


As Issuer


 


and


 


SDI INVESTMENT COMPANY


STEEL DYNAMICS SALES NORTH AMERICA, INC.


NEW MILLENNIUM BUILDING SYSTEMS, LLC


ROANOKE ELECTRIC STEEL CORPORATION


NEW MILLENNIUM BUILDING SYSTEMS, INC.


SOCAR OF OHIO, INC.


SHREDDED PRODUCTS II, LLC


JOHN W. HANCOCK, JR., LLC


STEEL OF WEST VIRGINIA, INC.


STEEL VENTURES, INC.


SWVA, INC.


MARSHALL STEEL, INC.


THE TECHS INDUSTRIES, INC.


OMNISOURCE CORPORATION


ADMETCO, INC.


ATLANTIC SCRAP AND PROCESSING — WILMINGTON, LLC


AUBURN INVESTMENT COMPANY, LLC


CAPITOL CITY METALS, LLC


CAROLINAS RECYCLING GROUP, LLC


COHEN & GREEN SALVAGE CO., INC.


GLOBAL SHREDDING TECHNOLOGIES, LTD., LLC


INDUSTRIAL SCRAP CORPORATION


INDUSTRIAL SCRAP, LLC


JACKSON IRON & METAL COMPANY, INC.


LUCKY STRIKE METALS, LLC


LUMBERTON RECYCLING COMPANY, INC.


MICHIGAN PROPERTIES ECORSE, LLC


OMNISOURCE ATHENS DIVISION, LLC


OMNISOURCE BAY CITY, LLC


OMNISOURCE INDIANAPOLIS, LLC


OMNISOURCE, LLC


OMNISOURCE MEXICO, LLC


OMNISOURCE SOUTHEAST, LLC


OMNISOURCE TRANSPORT, LLC


RAEFORD SALVAGE COMPANY, INC.


RECOVERY TECHNOLOGIES, LLC


SCIENTIFIC RECYCLING GROUP, LLC


SUPERIOR ALUMINUM ALLOYS, LLC


 


as


 


Initial Subsidiary Guarantors


 


and


 


Wells Fargo Bank, National Association


 


as Trustee


 


	
   

  	
   

  	
   

  
	
   

  	
  INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated as of               ,
  20   

  	
   

  
	
   

  	
   

  	
   

  



 


    % Convertible Senior Notes due 20   


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  9

  
	
  Section 1.03.

  	
  Trust Indenture Act Provisions

  	
  9

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  	
   

  	
   

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and Dating

  	
  10

  
	
  Section 2.02.

  	
  Execution and Authentication

  	
  12

  
	
  Section 2.03.

  	
  Registrar, Paying Agent and
  Conversion Agent

  	
  13

  
	
  Section 2.04.

  	
  Paying Agent To Hold Money in Trust

  	
  14

  
	
  Section 2.05.

  	
  Conversion Agent To Hold Money in
  Trust

  	
  14

  
	
  Section 2.06.

  	
  Lists of Holders of Securities

  	
  15

  
	
  Section 2.07.

  	
  Transfer and Exchange

  	
  15

  
	
  Section 2.08.

  	
  Replacement Securities

  	
  16

  
	
  Section 2.09.

  	
  Outstanding Securities

  	
  17

  
	
  Section 2.10.

  	
  Treasury Securities

  	
  17

  
	
  Section 2.11.

  	
  Temporary Securities

  	
  17

  
	
  Section 2.12.

  	
  Cancellation

  	
  18

  
	
  Section 2.13.

  	
  Legend; Additional Transfer and
  Exchange Requirements

  	
  18

  
	
  Section 2.14.

  	
  CUSIP Numbers

  	
  20

  
	
  Section 2.15.

  	
  Calculations

  	
  20

  
	
  Section 2.16.

  	
  Payment of Interest; Interest
  Rights Preserved

  	
  20

  
	
  Section 2.17.

  	
  Computation of Interest

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  	
   

  	
   

  
	
  REDEMPTION AND REPURCHASE

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Company’s Right to Redeem; Notice
  to Trustee

  	
  22

  



 


i

















 


	
  Section 3.02.

  	
  Selection of Securities to be
  Redeemed

  	
  22

  
	
  Section 3.03.

  	
  Notice of Redemption

  	
  23

  
	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  24

  
	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  24

  
	
  Section 3.06.

  	
  Securities Redeemed in Part

  	
  24

  
	
  Section 3.07.

  	
  [Intentionally Omitted]

  	
  24

  
	
  Section 3.08.

  	
  Repurchase of Securities at Option
  of the Holder upon a Fundamental Change

  	
  25

  
	
  Section 3.09.

  	
  Effect of Fundamental Change
  Purchase Notice

  	
  27

  
	
  Section 3.10.

  	
  Deposit of Fundamental Change
  Purchase Price

  	
  28

  
	
  Section 3.11.

  	
  Securities Purchased in Part

  	
  29

  
	
  Section 3.12.

  	
  Repayment to the Company

  	
  29

  
	
  Section 3.13.

  	
  Compliance With Securities Laws
  Upon Purchase of Securities

  	
  29

  
	
  Section 3.14.

  	
  Purchase of Securities In Open
  Market

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
   

  	
   

  	
   

  
	
  CONVERSION

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Right to Convert

  	
  30

  
	
  Section 4.02.

  	
  Conversion Procedures

  	
  30

  
	
  Section 4.03.

  	
  Payments Upon Conversion

  	
  32

  
	
  Section 4.04.

  	
  Adjustment of Conversion Rate

  	
  33

  
	
  Section 4.05.

  	
  Certain Other Adjustments

  	
  41

  
	
  Section 4.06.

  	
  Adjustments Upon Certain Fundamental
  Changes

  	
  41

  
	
  Section 4.07.

  	
  Effect of Recapitalization,
  Reclassification, Consolidation, Merger or Sale

  	
  43

  
	
  Section 4.08.

  	
  Taxes on Shares Issued

  	
  44

  
	
  Section 4.09.

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

  	
  44

  
	
  Section 4.10.

  	
  Responsibility of Trustee

  	
  44

  
	
  Section 4.11.

  	
  Notice to Holders Prior to Certain
  Actions

  	
  45

  
	
  Section 4.12.

  	
  Stockholder Rights Plan

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Payment of Securities

  	
  46

  



 


ii

















 


	
  Section 5.02.

  	
  Reports by Company

  	
  47

  
	
  Section 5.03.

  	
  Compliance Certificates

  	
  47

  
	
  Section 5.04.

  	
  Further Instruments and Acts

  	
  48

  
	
  Section 5.05.

  	
  Maintenance of Corporate Existence

  	
  48

  
	
  Section 5.06.

  	
  Issuances of Subsidiary Guarantees

  	
  48

  
	
  Section 5.07.

  	
  Stay, Extension And Usury Laws

  	
  48

  
	
  Section 5.08.

  	
  Payment of Special Interest

  	
  48

  
	
  Section 5.09.

  	
  Maintenance of Office or Agency

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  	
   

  	
   

  
	
  CONSOLIDATION; MERGER; SALE OF ASSETS

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Company or Subsidiary Guarantors
  May Consolidate, Etc., Only on Certain Terms

  	
  49

  
	
  Section 6.02.

  	
  Successor Substituted

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  	
   

  	
   

  
	
  DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Default

  	
  51

  
	
  Section 7.02.

  	
  Acceleration; Special Interest

  	
  53

  
	
  Section 7.03.

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
  55

  
	
  Section 7.04.

  	
  Trustee May File Proofs of
  Claim

  	
  56

  
	
  Section 7.05.

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  56

  
	
  Section 7.06.

  	
  Application of Money Collected

  	
  56

  
	
  Section 7.07.

  	
  Limitation on Suits

  	
  57

  
	
  Section 7.08.

  	
  Unconditional Right of Holders to
  Receive Payment and to Convert

  	
  58

  
	
  Section 7.09.

  	
  Restoration of Rights and Remedies

  	
  58

  
	
  Section 7.10.

  	
  Rights and Remedies Cumulative

  	
  58

  
	
  Section 7.11.

  	
  Delay or Omission Not Waiver

  	
  58

  
	
  Section 7.12.

  	
  Control by Holders

  	
  59

  
	
  Section 7.13.

  	
  Waiver of Past Defaults

  	
  59

  
	
  Section 7.14.

  	
  Undertaking for Costs

  	
  59

  
	
  Section 7.15.

  	
  Remedies Subject to Applicable Law

  	
  59

  



 


iii

















 


	
  ARTICLE 8

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Duties of Trustee

  	
  60

  
	
  Section 8.02.

  	
  Notice of Default

  	
  61

  
	
  Section 8.03.

  	
  Certain Rights of Trustee

  	
  61

  
	
  Section 8.04.

  	
  Trustee Not Responsible for
  Recitals, Dispositions of Securities or Application of Proceeds Thereof

  	
  63

  
	
  Section 8.05.

  	
  Trustee and Agents May Hold
  Securities; Collections; etc.

  	
  63

  
	
  Section 8.06.

  	
  Money Held in Trust

  	
  63

  
	
  Section 8.07.

  	
  Compensation and Indemnification of
  Trustee and Its Prior Claim

  	
  63

  
	
  Section 8.08.

  	
  Conflicting Interests

  	
  64

  
	
  Section 8.09.

  	
  Trustee Eligibility

  	
  65

  
	
  Section 8.10.

  	
  Resignation and Removal;
  Appointment of Successor Trustee

  	
  65

  
	
  Section 8.11.

  	
  Acceptance of Appointment by
  Successor

  	
  66

  
	
  Section 8.12.

  	
  Merger, Conversion, Consolidation
  or Succession to Business

  	
  67

  
	
  Section 8.13.

  	
  Preferential Collection of Claims Against
  Company

  	
  67

  
	
  Section 8.14.

  	
  Reports By Trustee

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Satisfaction and Discharge of
  Indenture

  	
  68

  
	
  Section 9.02.

  	
  Application of Trust Money

  	
  69

  
	
  Section 9.03.

  	
  Reinstatement

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  	
   

  	
   

  
	
  AMENDMENTS; SUPPLEMENTS AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Without Consent of Holders

  	
  69

  
	
  Section 10.02.

  	
  With Consent of Holders

  	
  70

  
	
  Section 10.03.

  	
  Execution of Supplemental
  Indentures and Agreements

  	
  72

  
	
  Section 10.04.

  	
  Effect of Supplemental Indentures

  	
  72

  
	
  Section 10.05.

  	
  Conformity with Trust Indenture Act

  	
  72

  
	
  Section 10.06.

  	
  Reference in Securities to
  Supplemental Indentures

  	
  72

  
	
  Section 10.07.

  	
  Notice of Supplemental Indentures

  	
  72

  



 


iv

















 


	
  ARTICLE 11

  
	
   

  	
   

  	
   

  
	
  GUARANTEE OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Note Guarantee

  	
  73

  
	
  Section 11.02.

  	
  Obligations Unconditional

  	
  75

  
	
  Section 11.03.

  	
  Release of Note Guarantees

  	
  75

  
	
  Section 11.04.

  	
  Notice to Trustee

  	
  76

  
	
  Section 11.05.

  	
  This Article Not to Prevent
  Events of Default

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Conflict with Trust Indenture Act

  	
  76

  
	
  Section 12.02.

  	
  Notices

  	
  76

  
	
  Section 12.03.

  	
  Disclosure of Names and Addresses
  of Holders

  	
  78

  
	
  Section 12.04.

  	
  Compliance Certificates and
  Opinions

  	
  78

  
	
  Section 12.05.

  	
  Acts of Holders

  	
  79

  
	
  Section 12.06.

  	
  Benefits of Indenture

  	
  80

  
	
  Section 12.07.

  	
  Legal Holidays

  	
  80

  
	
  Section 12.08.

  	
  Governing Law; Waiver of Trial by
  Jury

  	
  80

  
	
  Section 12.09.

  	
  No Adverse Interpretation of Other
  Agreements

  	
  80

  
	
  Section 12.10.

  	
  No Personal Liability of Directors,
  Officers, Employees and Stockholders

  	
  80

  
	
  Section 12.11.

  	
  Successors and Assigns

  	
  81

  
	
  Section 12.12.

  	
  Multiple Counterparts

  	
  81

  
	
  Section 12.13.

  	
  Separability Clause

  	
  81

  
	
  Section 12.14.

  	
  Schedules and Exhibits

  	
  81

  
	
  Section 12.15.

  	
  Effect of Headings and Table of
  Contents

  	
  81

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  A Form of Security

  	
  A-1

  
	
  ·

  	
  Assignment
  Form

  	
   

  
	
  ·

  	
  Form of
  Conversion Notice

  	
   

  
	
  ·

  	
  Form of
  Notice of Redemption

  	
   

  
	
  ·

  	
  Form of
  Fundamental Change Purchase Notice

  	
   

  
				



 


v

















 


CROSS-REFERENCE
TABLE*


 


	
  TIA

  Section

  	
   

  	
   

  	
  Indenture

  Section(s)

  	
   

  
	
  Section

  	
  310(a)(1)

  	
   

  	
  8.09

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  8.09

  	
   

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  	
  **

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (a)(5)

  	
   

  	
  8.09

  	
   

  
	
   

  	
  (b)

  	
   

  	
  8.08

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  Section

  	
  311(a)

  	
   

  	
  8.13

  	
   

  
	
   

  	
  (b)

  	
   

  	
  8.05

  	
   

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  Section

  	
  312(a)

  	
   

  	
  2.06

  	
   

  
	
   

  	
  (b)

  	
   

  	
  12.03

  	
   

  
	
   

  	
  (c)

  	
   

  	
  12.03

  	
   

  
	
  Section

  	
  313(a)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)(2)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
  (c)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
  (d)

  	
   

  	
  8.14 (b)

  	
   

  
	
  Section

  	
  314(a)

  	
   

  	
  5.02

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  	
   

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (e)

  	
   

  	
  12.04

  	
   

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  	
   

  
	
  Section

  	
  315(a)

  	
   

  	
  8.01 (b)

  	
   

  
	
   

  	
  (b)

  	
   

  	
  8.02

  	
   

  
	
   

  	
  (c)

  	
   

  	
  8.01 (a)

  	
   

  
	
   

  	
  (d)

  	
   

  	
  8.01 (c)

  	
   

  
	
   

  	
  (d)(2)

  	
   

  	
  8.01 (c)

  	
   

  
	
   

  	
  (d)(3)

  	
   

  	
  8.01 (c)

  	
   

  
	
   

  	
  (e)

  	
   

  	
  7.14

  	
   

  
	
  Section

  	
  316(a) (last
  sentence)

  	
   

  	
  2.10

  	
   

  
	
   

  	
  (a)(1)

  	
   

  	
  7.12, 7.13

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
  7.08

  	
   

  
	
   

  	
  (c)

  	
   

  	
  12.05(e)

  	
   

  
	
  Section

  	
  317(a)

  	
   

  	
  7.03, 7.04(a)

  	
   

  
	
   

  	
  (b)

  	
   

  	
  2.04

  	
   

  
	
  Section

  	
  318(a)

  	
   

  	
  12.01

  	
   

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
  (c)

  	
   

  	
  12.01

  	
   

  



 






*                                            This Cross-Reference Table shall not, for
any purpose, be deemed a part of this Indenture.


**                                     N.A. means Not Applicable.


 


vi














 


THIS INDENTURE, dated as of
                    ,
20    , is among Steel Dynamics, Inc.,
a corporation duly organized under the laws of the State of Indiana (the “Company”),
the Initial Subsidiary Guarantors (as defined herein) and Wells Fargo Bank,
National Association, a national banking association, as Trustee (the “Trustee”).


 


In consideration of the
purchase of the Securities (as defined herein) by the Holders thereof, the
parties hereto agree as follows for the benefit of one another and for the equal
and ratable benefit of the Holders of the Company’s     %
Convertible Senior Notes due 20    .


 


ARTICLE 1


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


Section 1.01.          Definitions.


 


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


 


“Agent” means any Registrar,
Paying Agent or Conversion Agent.


 


“Applicable Procedures”
means, with respect to any conversion, transfer or exchange of beneficial
ownership interests in a Global Security, the rules and procedures of the
Depositary, to the extent applicable to such conversion, transfer or exchange.


 


“Bankruptcy Law” means Title
11 of the United States Code entitled “Bankruptcy” or any other law relating to
bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors, whether in effect on the date hereof or hereafter.


 


“Board of Directors” means
the board of directors of the Company or any duly authorized committee of such
board or any equivalent body in a limited partnership, limited liability
company or other entity serving substantially the same function as a board of
directors of a corporation.


 


“Board Resolution” means,
with respect to any Person, a duly adopted resolution (or other similar action)
of the Board of Directors of such Person.


 


“Business Day” means any day
other than a Saturday, a Sunday or any other day on which banks or trust
companies in The City of New York or in the city of the Corporate Trust Office
of the Trustee are authorized or required by law, or executive order to be
closed.


 


“Capital Stock” of any
Person means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) the equity of such Person, but excluding any debt securities
convertible into such equity.


 

















 


“Cash” or “cash” means such
coin or currency of the United States as at any time of payment is legal tender
for the payment of public and private debts.


 


“Certificated Security”
means a Security that is in substantially the form attached as Exhibit A
but that does not include the legend called for by footnote 1 thereof or the
Schedule of Exchanges of Securities thereof.


 


“close of business” means
5:00 p.m. New York City time.


 


“Closing Date” means
                    ,
20    .


 


“Common Equity” of any
Person means Capital Stock of the class or classes pursuant to which the
holders of such Capital Stock have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such Person (irrespective of whether or not at the time Capital
Stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).


 


“Common Stock” means the
common stock of the Company, par value $0.0025 per share, or any successor
common stock thereto.


 


“Company” means the party
named as such in the first paragraph of this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Company.


 


“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by
any one of its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Operating Officer, its Chief Financial Officer or a Vice
President (regardless of Vice Presidential designation), and by any one of its
Treasurer, an Assistant Treasurer, any other Vice President (regardless of Vice
Presidential designation), its Secretary or an Assistant Secretary, and
delivered to the Trustee.


 


“Continuing Directors” means
(i) individuals who on the date of original issuance of the Securities
constituted the Company’s Board of Directors (ii) any new directors whose
election to the Company’s Board of Directors or whose nomination for election
by the Company’s stockholders was approved by at least a majority of the
directors then still in office (or a duly constituted committee thereof),
either who were directors on the date of original issuance of the Securities or
whose election or nomination for election was previously so approved.


 


“Conversion
Price” means, in respect of each Security, as of any date, $1,000,
divided by the Conversion Rate as of such date.


 


“Conversion
Rate” means, initially,
           shares of Common
Stock per $1,000 principal amount of Securities, subject to adjustment as set
forth herein.


 


“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at 230 West Monroe Street, Suite 2900,
Chicago, IL 60606, Attention: Corporate Trust Services, or such other
address as the Trustee may designate from time to time by notice to the 


 


2

















 


Company, or the principal
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 Company).


 


“Credit Agreement” means the Amended and Restated Credit Agreement, dated as of June 19, 2007,
among the Company, as Borrower, certain designated “Initial Lenders,” National
City Bank, as Collateral Agent, National City Bank and Wells Fargo, National
Association, as Co-Administrative Agents, Bank of America, N.A. and National
City Bank, as Syndication Agents, National City Bank, as Paying Agent, Bank of
America, N.A., General Electric Capital Corporation, Fifth Third Bank and BMO
Capital Markets Financing, Inc., as Documentation Agents, and Banc of
America Securities LLC and National City Bank, as Joint Lead Arrangers, and the lenders
from time to time party thereto, together with any agreements, instruments,
security agreements, guaranties and other documents executed or delivered
pursuant to or in connection with such credit agreement, as such credit
agreement or such agreements, instruments, security agreements, guaranties or
other documents may be amended, supplemented, extended, restated, renewed or
otherwise modified from time to time and any refunding, refinancing,
replacement or substitution thereof or therefor, whether with the same or
different lenders.


 


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


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.


 


“Ex-Dividend Date” when used
with respect to any issuance or distribution, means the first date upon which a
sale of shares of Common Stock does not automatically transfer the right to
receive the relevant dividend or distribution from the seller of such Common
Stock to its buyer.


 


“Final Maturity Date” means
                    ,
20    .


 


“Fundamental
Change” will be deemed to have occurred at the time after the Securities
are originally issued if any of the following occurs:


 


(1)           a
“person” or “group” within the meaning of Section 13(d) of the
Exchange Act, other than the Company, its Subsidiaries, and its and their
employee benefit plans, has become the direct or indirect “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common
Equity representing more than 50% of the voting power of the Company’s Common
Equity;


 


(2)           consummation
of any share exchange, consolidation or merger of the Company or other
transaction or series of transactions pursuant to which the Common Stock will
be converted into cash, securities or other property or any sale, lease or
other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
Subsidiaries; provided, however, that a transaction where the holders of all
classes of the Company’s Common Equity immediately prior to such transaction
that is a share exchange, consolidation or merger own, directly or 


 


3

















 


indirectly, more than 50% of all classes of Common
Equity of the continuing or surviving corporation or transferee or the parent
thereof immediately after such event shall not be a Fundamental Change;


 


(3)           the
first day on which a majority of the members of the Company’s Board of
Directors does not consist of Continuing Directors;


 


(4)           the
Company’s stockholders approve any plan or proposal for the liquidation or
dissolution of the Company; or


 


(5)           the
Common Stock (or other common stock into which the Securities are then
convertible) ceases to be listed or quoted on a national securities exchange in
the United States.


 


Notwithstanding the foregoing, a Fundamental Change as
a result of clause (2) above will not be deemed to have occurred if
at least 90% of the consideration received or to be received by the holders of
the Common Stock, excluding cash payments for fractional shares, in connection
with the transaction or transactions constituting the Fundamental Change
consists of Publicly Traded Securities and as a result of such transaction or
transactions the Securities become convertible into such Publicly Traded
Securities, excluding cash payments for fractional shares.


 


“GAAP” means generally
accepted accounting principles in the United States of America 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 and the Public Company Accounting
Oversight Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect from time to time.


 


“Global Security” means a
Security in global form that is in substantially the form attached as Exhibit A
and that includes the legend called for in footnote 1 thereof and the Schedule
of Exchanges of Securities thereof and which is deposited with the Depositary
or its custodian and registered in the name of the Depositary or its nominee.


 


“Guarantee” means any
obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (1) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services (unless such
purchase arrangements are on arm’s-length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise) or (2) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business.  The term “Guarantee” used as a verb has a
corresponding meaning.


 


“Holder” or “Holder of a
Security” means the person in whose name a Security is registered on the
Registrar’s books.


 


4

















 


“Indebtedness” means
indebtedness for borrowed money.


 


“Indenture” means this
instrument as originally executed (including all exhibits and schedules
thereto) and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including the provisions of the TIA that would be automatically
deemed to be part of this Indenture by operation of the TIA assuming this
Indenture were qualified under the TIA.


 


“Initial Subsidiary
Guarantors” means SDI Investment Co., a Delaware corporation, Steel Dynamics Sales North
America, Inc., an Indiana corporation, New Millennium Building Systems,
LLC, an Indiana limited liability company, Roanoke Electric Steel Corporation,
an Indiana corporation, New Millennium Building Systems, Inc., a South
Carolina corporation, Socar of Ohio, Inc., an Ohio corporation, Shredded
Products II, LLC, an Indiana limited liability company, John W. Hancock, Jr.,
LLC, a Virginia limited liability company, Steel of West Virginia, Inc., a
Delaware corporation, Steel Ventures, Inc., a Delaware corporation, SWVA, Inc.,
a Delaware corporation, Marshall Steel Inc., a Delaware corporation, The Techs
Industries, Inc., a Delaware corporation, OmniSource Corporation, an
Indiana corporation, Admetco, Inc., an Indiana corporation, Auburn
Investment Company, LLC, an Indiana limited liability company, Capitol City
Metals, LLC, an Indiana limited liability company, Global Shredding
Technologies, Ltd., LLC, an Indiana limited liability company, Industrial Scrap
Corporation, an Indiana corporation, Industrial Scrap, LLC, an Indiana limited
liability company, Jackson Iron & Metal Company, Inc., a Michigan
corporation, Lucky Strike Metals, LLC, an Indiana limited liability company,
Michigan Properties Ecorse, LLC, an Indiana limited liability company,
OmniSource Athens Division, LLC, an Indiana limited liability company,
OmniSource Bay City, LLC, an Indiana limited liability company, OmniSource
Indianapolis, LLC, an Indiana limited liability company, OmniSource, LLC, an
Indiana limited liability company, OmniSource Mexico, LLC, an Indiana limited
liability company, OmniSource Transport, LLC, an Indiana limited liability
company, Recovery Technologies, LLC, an Indiana limited liability company,
Scientific Recycling Group, LLC, an Indiana limited liability company, Superior
Aluminum Alloys, LLC, an Indiana limited liability company, and OmniSource
Southeast, LLC, a Delaware limited liability company, Carolinas Recycling
Group, LLC, a South Carolina limited liability company,  Atlantic
Scrap and Processing — Wilmington, LLC, a North Carolina limited liability
company, Cohen & Green Salvage Co., Inc., a North Carolina
corporation, Raeford Salvage Company, Inc., a North Carolina corporation,
and Lumberton Recycling Company, Inc. a North Carolina corporation.


 


“Interest Payment Date”
means                     
and
                    
of each year, commencing                     ,
20    .


 


“Last Reported
Sale Price” of the Common Stock on any date means the closing sale price
per share of Common Stock (or if no closing sale price is reported, the average
of the bid and ask prices or, if more than one in either case, the average of
the average bid and the average ask prices) on that date as reported in
composite transactions for the principal U.S. securities exchange on which the
Common Stock is traded. If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the
last quoted bid price for the Common Stock in the over-the-counter market on
the relevant date as reported by Pink Sheets LLC or a similar organization. If
the Common Stock 


 


5

















 


is not so quoted, the
“Last Reported Sale Price” shall
be the average of the mid-point of the last bid and ask prices for the Common
Stock on the relevant date from each of at least three nationally recognized
independent investment banking firms selected by the Company for this purpose.


 


“Make-Whole
Fundamental Change” means any transaction or event that constitutes a
Fundamental Change (determined after giving effect to any exceptions or
exclusions to such definition, but without regard to the proviso in clause (2) of
the definition thereof).


 


“Note Guarantee” means a Guarantee of the obligations
of the Company under this Indenture and the Securities by any Subsidiary
Guarantor.


 


“Officer” means the
Chairman, any Vice Chairman, the President, the Chief Executive Officer, any
Vice President, the Chief Financial Officer, the Chief Operating Officer, the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary of the Company.


 


“Officer’s Certificate”
means a certificate signed by an Officer of the Company and delivered to the
Trustee; provided, however,
that for purposes of Section 5.03, “Officer’s Certificate” means a
certificate signed by the principal executive officer, principal financial
officer, principal operating officer or principal accounting officer of the
Company and each Subsidiary Guarantor.


 


“open of business” means
9:00 a.m. (New York City time).


 


“Operating Property” means
any real property, including any manufacturing plant or warehouse erected
thereon, or equipment located in the United States owned by, or leased to, the
Company, or any Subsidiary of the Company, that has a market value in excess of
$50.0 million.


 


“Opinion of Counsel” means a
written opinion of counsel, who may be an employee of or counsel for the
Company, any Subsidiary Guarantor or the Trustee and which opinion shall be in
form and substance reasonably satisfactory to the Trustee.


 


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


 


“Publicly
Traded Securities” means, in respect of a transaction described in
clause (2) of the definition of Fundamental Change, shares of common
stock traded on the New York Stock Exchange, the NASDAQ Stock Market LLC or the
NASDAQ Global Select Market (or any or their respective successors) or which
will be so traded when issued or exchanged in connection with a Fundamental
Change.


 


“Redemption Date” means the
date specified in a notice of redemption on which the Securities may be
redeemed in accordance with the terms of the Securities and this Indenture.


 


“Registrar” means initially
the Trustee.


 


6

















 


“Regular
Record Date” means, with respect to the payment of interest on the
Securities, the
                    
(whether or not a Business Day) immediately preceding an Interest Payment Date
on
                    
and the
                    
(whether or not a Business Day) immediately preceding an Interest Payment Date
on
                    .


 


“Restricted Subsidiary” means any Subsidiary of the
Company other than an Unrestricted Subsidiary.


 


“Scheduled Trading Day”
means a day that is scheduled to be a Trading Day on the principal United
States national or regional securities exchange or
market on which the Common Stock is listed or admitted for trading.  If the Common Stock is not so listed or
admitted for trading, “Scheduled
Trading Day” means a Business Day.


 


“SEC” means the U.S.
Securities and Exchange Commission.


 


“Securities” means up to
$                  
aggregate principal amount of     % Convertible Senior
Notes due 20    , or any $1,000 principal amount thereof
(each a “Security”), as amended or supplemented from time to time, that are
issued under this Indenture.


 


“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.


 


“Securities Custodian” means
the Trustee, as custodian with respect to the Securities in global form, or any
successor thereto.


 


“Significant Subsidiary”
means, at any date of determination, any Restricted Subsidiary that would
constitute a “significant subsidiary” within the meaning of Article 1 of
Regulation S-X of the Securities Act as in effect on the Closing Date; provided
that all references to 10% in the definition of “significant subsidiary” in Article 1
of Regulation S-X of the Securities Act shall be deemed to be 7.5%.


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 2.16.


 


“Stated Maturity” means,
with respect to any installment of interest or principal on any Security, the
date on which such payment of interest or principal shall become due and
payable.


 


“Subsidiary” means, with
respect to any specified Person:  (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); or (2) any
partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are that Person or one or more Subsidiaries of that
Person (or any combination thereof).


 


“Subsidiary Guarantor” means
any Initial Subsidiary Guarantor and any other Subsidiary of the Company which
provides a Note Guarantee of the Company’s obligations under the 


 


7

















 


Indenture and the
Securities, until such Note Guarantee is released in accordance with the terms
of this Indenture.


 


“TIA” means the Trust
Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except to the extent
that the Trust Indenture Act or any amendment thereto expressly provides for
application of the Trust Indenture Act as in effect on another date.


 


“Trading Day”
means a day on which (i) trading in the Common Stock generally occurs on
the NASDAQ Global Select Market or, if the Common Stock is not then listed on
the NASDAQ Global Select Market, on the principal other United States national
or regional securities exchange on which the Common Stock is then listed or, if
the Common Stock is not then listed on a United States national or regional
securities exchange, in the principal other market on which the Common Stock is
then traded, and (ii) a Last Reported Sale Price for the Common Stock is
available on such securities exchange or market. If the Common Stock (or other
security for which a closing sale price must be determined) is not so listed or
traded, “Trading Day” means a
Business Day.


 


“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 this Indenture, and thereafter
means the successor.


 


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


 


“Unrestricted Subsidiary” means STLD Holdings, Inc.,
Dynamic Aviation, LLC, Paragon Steel Enterprises, LLC, Speedbird Aviation, LLC
and each of their respective direct and indirect Subsidiaries; provided, however, in the event (a) any
such Subsidiary Guarantees Indebtedness of the Company or any Subsidiary
Guarantor in an aggregate amount exceeding $50 million or (b) the Company
or any of its Subsidiaries (other than an Unrestricted Subsidiary) contributes
or otherwise transfers (other than a sale for fair market value) any Operating
Property (including shares of stock of a Subsidiary that owns the Operating
Property) to such Subsidiary, in either case such Subsidiary shall cease to be
an Unrestricted Subsidiary and if such Subsidiary would be a Significant
Subsidiary, such Subsidiary will Guarantee payment of the principal of, premium
if any and interest on the Securities.


 


“U.S.” means the United
States of America.


 


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


 


8

















 


Section 1.02.          Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Act”

  	
   

  	
  12.05(a)

  
	
  “Additional
  Shares”

  	
   

  	
  4.06(a)

  
	
  “Adjusted
  Net Assets”

  	
   

  	
  11.01

  
	
  “Agent
  Members”

  	
   

  	
  2.01(b)

  
	
  “Clause
  A Distribution”

  	
   

  	
  4.04(c)

  
	
  “Clause
  B Distribution”

  	
   

  	
  4.04(c)

  
	
  “Clause
  C Distribution”

  	
   

  	
  4.04(c)

  
	
  “Conversion
  Agent”

  	
   

  	
  2.03(a)

  
	
  “Conversion
  Date”

  	
   

  	
  4.02(b)

  
	
  “Conversion
  Notice”

  	
   

  	
  4.02(b)

  
	
  “DTC”

  	
   

  	
  2.01(a)

  
	
  “Defaulted
  Interest”

  	
   

  	
  2.16

  
	
  “Depositary”

  	
   

  	
  2.01(a)

  
	
  “Dividend
  Threshold Amount”

  	
   

  	
  4.04(d)

  
	
  “Effective
  Date”

  	
   

  	
  4.06(c)

  
	
  “Event
  of Default”

  	
   

  	
  7.01(a)

  
	
  “Fundamental
  Change Company Notice”

  	
   

  	
  3.08(b)

  
	
  “Fundamental
  Change Purchase Date”

  	
   

  	
  3.08(a)

  
	
  “Fundamental
  Change Purchase Notice”

  	
   

  	
  3.08(c)

  
	
  “Fundamental
  Change Purchase Price”

  	
   

  	
  3.08(a)

  
	
  “Funding
  Guarantor”

  	
   

  	
  11.01

  
	
  “in
  connection with”

  	
   

  	
  4.06

  
	
  “Merger
  Event”

  	
   

  	
  4.07(a)

  
	
  “Notice
  of Default”

  	
   

  	
  7.01(b)

  
	
  “Outstanding”

  	
   

  	
  2.09(a)

  
	
  “Paying
  Agent”

  	
   

  	
  2.03(a)

  
	
  “Primary
  Registrar”

  	
   

  	
  2.03(a)

  
	
  “Redemption
  Price”

  	
   

  	
  3.01

  
	
  “Reference
  Property”

  	
   

  	
  4.07(a)

  
	
  “Registrar”

  	
   

  	
  2.03(a)

  
	
  “Special
  Interest”

  	
   

  	
  7.02(c)

  
	
  “Special
  Payment Date”

  	
   

  	
  2.16(a)

  
	
  “Spin-Off”

  	
   

  	
  4.04(c)

  
	
  “Stock
  Price

  	
   

  	
  4.06(c)

  
	
  “Trigger
  Event”

  	
   

  	
  4.04(c)

  
	
  “Valuation
  Period”

  	
   

  	
  4.04(c)

  



 


Section 1.03.          Trust Indenture Act Provisions.


 


Whenever this Indenture
refers to a provision of the TIA, that provision is incorporated by reference
in and made a part of this Indenture. 
The following TIA term used in this Indenture has the following meaning:


 


9














 


“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 in the TIA, defined by TIA reference to another
statute or defined by any SEC rule and not otherwise defined herein have
the meanings assigned to them therein.


 


Section 1.04.          Rules of Construction.


 


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


 


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


 


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


 


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


 


(4)  the term “merger”
includes a statutory share exchange and the term “merged” has a correlative
meaning;


 


(5)  the masculine
gender includes the feminine and the neuter;


 


(6)  the terms “include”,
“including”, and similar terms should be construed as if followed by the phrase
“without limitation”;


 


(7)  references to
agreements and other instruments include subsequent amendments thereto; and


 


(8)  all “Article”, “Exhibit”
and “Section” references are to Articles, Exhibits and Sections, respectively,
of or to this Indenture unless otherwise specified herein, and the terms “hereunder,”
“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.


 


ARTICLE 2


 


THE SECURITIES


 


Section 2.01.          Form and Dating.


 


The Securities and the
Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is
incorporated in and made part of this Indenture.  The Securities may include such letters,
numbers or other marks of identification and such notations, legends,
endorsements or changes as the Officer executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Indenture, or as may be required by
the Trustee, the Depositary, or as may 


 


10

















 


be required to comply with
any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any national securities exchange or
automated quotation system on which the Securities may be listed or quoted, or
to conform to usage, or to indicate any special limitations or restrictions to
which any particular Securities are subject. 
Each Security shall be dated the date of its authentication.


 


(a)           Global Securities. 
All of the Securities are being offered and sold in a distribution in
reliance on an effective registration statement under the Securities Act and
shall be issued initially in the form of one or more Global Securities, which
shall be deposited on behalf of the purchasers of the Securities represented
thereby with the Trustee, at its Corporate Trust Office, as Securities
Custodian for the depositary, The Depository Trust Company (“DTC”, and such
depositary, or any successor thereto, being hereinafter referred to as the “Depositary”),
and registered in the name of its nominee, Cede & Co.  (or any successor thereto), for the accounts
of participants in the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Securities Custodian and the Depositary as hereinafter
provided, subject in each case to compliance with the Applicable Procedures and
Section 2.13, as applicable.


 


(b)           Global Securities In General.  The Global Security shall represent such of
the outstanding Securities as shall be specified therein and each shall provide
that it shall represent the aggregate principal amount of outstanding
Securities from time to time endorsed thereon and that the aggregate principal
amount of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, purchases or
conversions of such Securities.


 


Members of, or participants
in, the Depositary (“Agent Members”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary (including, for
this purpose, its nominee) may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of such
Global Security for all purposes whatsoever.


 


Notwithstanding the
foregoing, nothing herein shall (1) prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (2) impair,
as between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.


 


(c)           Book Entry Provisions.  The Company shall execute and the Trustee shall,
in accordance with this Section 2.01(c), authenticate and deliver
initially one or more Global Securities that (1) shall be registered in
the name of the Depositary or its nominee, (2) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and (3) shall
bear legends substantially to the following effect:


 


“UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND



 


11

















 


ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.  THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A 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 2.02.          Execution and Authentication.


 


(a)           The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to
$                  
aggregate principal amount, except as provided in Sections 2.07 and 2.08.


 


(b)           The Securities shall be executed on behalf of the Company
by one of its Officers.  The signatures
of any of the Officers on the Securities may be manual or facsimile.


 


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


 


(d)           No Security or Guarantee endorsed thereon shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.


 


(e)           The Trustee shall authenticate and make available for
delivery Securities for original issue in the aggregate principal amount of up
to
$                  
upon receipt of a Company Order, Officer’s Certificate and an Opinion of
Counsel.  The Company Order shall specify
the amount of Securities to be authenticated, shall provide that all such
Securities will be represented by a Global Security and shall state the date on
which each original issue of Securities is to be authenticated. The Officer’s
Certificate shall state that all covenants and conditions precedent to 


 


12

















 


the execution, authentication and delivery of the Securities have been
complied with. The Opinion of Counsel shall state substantially to the
following effect, which Opinion of Counsel may contain such assumptions,
qualifications and limitations as such counsel shall reasonably deem appropriate:
(i) the form or forms and terms of the Securities of such series have been
established in compliance with this Indenture, and (ii) the Indenture and
such Securities have been duly authorized and, if executed and authenticated in
accordance with the provisions of the Indenture and delivered and duly paid
for, would be entitled to the benefits of the Indenture and will constitute
valid and legally binding obligations of the Company and each Subsidiary
Guarantor, enforceable against the Company and each Subsidiary Guarantor in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting
creditors’ rights generally and general principles of equity (regardless of
whether enforceability is considered in a proceeding of equity or law).


 


(f)            The Trustee shall act as the initial authenticating
agent.  Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate
Securities.  An 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 agent.  An authenticating agent shall have the same
rights as an Agent to deal with the Company or any Subsidiary Guarantor or an
Affiliate of the Company or any Subsidiary Guarantor.


 


(g)           The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 principal amount and
multiples of $1,000 thereof.


 


Section 2.03.          Registrar, Paying Agent and
Conversion Agent.


 


(a)           The Company shall maintain one or more offices or agencies
where Securities may be presented for registration of transfer or for exchange
(each, a “Registrar”), one or more offices or agencies where Securities
may be presented or surrendered for payment (each, a “Paying Agent”),
one or more offices or agencies where Securities may be presented for
conversion (each, a “Conversion Agent”) and one or more offices or
agencies where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. 
The Company will at all times maintain a Paying Agent, Conversion Agent,
Registrar and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served in the
Borough of Manhattan, The City of New York. 
One of the Registrars (the “Primary Registrar”) shall keep a
register of the Securities and of their transfer and exchange.  At the option of the Company, any payment of
cash may be made by check mailed to the Holders at their addresses set forth in
the register of Holders.


 


(b)           The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, provided
that the Agent may be an Affiliate of the Trustee.  The agreement shall implement the provisions
of this Indenture that relate to such Agent. 
The Company shall notify the Trustee of the name and address, and any
change in the name or address, of any Agent not a party to this Indenture.  If the Company fails to maintain a Registrar,
Paying Agent, Conversion Agent, or agent for service of notices and demands in
any place required by this Indenture, or fails to give the foregoing notice,
the Trustee shall act as such.  The
Company or any Affiliate of the Company may act as Paying Agent (except for the
purposes of Article 9).


 


13

















 


(c)           The Company hereby initially designates the Trustee as
Paying Agent, Registrar, Primary Registrar, Securities Custodian and Conversion
Agent, and designates the Corporate Trust Office of the Trustee as the office
or agency of the Company for each of the aforesaid purposes and as the office
or agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served.


 


Section 2.04.          Paying Agent To Hold Money in Trust.


 


Unless otherwise specified
herein, prior to 10:00 a.m., New York City time, on each due date of the
payment of principal of, or interest (including Special Interest), if any, on
any Securities, the Company shall deposit a sum sufficient to pay such
principal or interest (including Special Interest), if any, so becoming
due.  A Paying Agent shall hold in trust
for the benefit of Holders of Securities or the Trustee all money held by the
Paying Agent for the payment of principal of, or interest (including Special
Interest), if any, on, the Securities, and shall notify the Trustee of any
failure by the Company (or any other obligor on the Securities) to make any
such payment.  If the Company or an
Affiliate of the Company acts as Paying Agent, it shall, before 10:00 a.m.,
New York City time, on each due date of the principal of, or interest
(including Special Interest), if any, on, any Securities, segregate the money
and hold it as a separate trust fund for the benefit of Holders.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee, and the Trustee may at any
time during the continuance of any Default, upon written request to a Paying
Agent, require such Paying Agent to pay forthwith to the Trustee all sums so
held in trust by such Paying Agent.  Upon
doing so, the Paying Agent (other than the Company) shall have no further
liability for the money so paid to the Trustee.


 


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


 


Section 2.05.          Conversion Agent To Hold Money in
Trust.


 


The Company shall require
each Conversion Agent (that is not the Trustee) to agree in writing that the
Conversion Agent will hold in trust for the benefit of Holders or the Trustee
all cash and shares of Common Stock delivered by the Company to the Conversion
Agent for the delivery of amounts due upon conversion, and will notify the
Trustee of any default by the Company in making any such delivery.


 


14

















 


While any such default
continues, the Trustee may require a Conversion Agent to deliver all cash and
shares of Common Stock delivered by the Company to it to the Trustee.  Upon payment over to the Trustee, the
Conversion Agent (if other than the Company or a Subsidiary) shall have no
further liability in respect of such amounts. 
If the Company or a Subsidiary acts as Conversion Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
cash and shares of Common Stock held by it as Conversion Agent.  Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Conversion
Agent for the Securities.


 


Section 2.06.          Lists of Holders of Securities.


 


The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of Securities.  The Company shall furnish or cause the Registrar
to furnish to the Trustee (a) semiannually, not more than 10 days after
each Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular Record
Date; and (b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished; provided, however, that
if and so long as the Trustee shall be the Primary Registrar, no such list need
be furnished.


 


Section 2.07.          Transfer and Exchange.


 


(a)           Subject to compliance with any applicable additional
requirements contained in Section 2.13, when a Security is presented to a
Registrar with a request to register a transfer thereof or to exchange such
Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange
as requested if its requirements for such transactions are met; provided, however, that
every Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by an assignment form and, if
applicable, a transfer certificate each substantially in the form included in Exhibit A,
and completed in a manner satisfactory to the Registrar and duly executed by
the Holder thereof or its attorney duly authorized in writing.  To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or
exchange at an office or agency maintained pursuant to Section 2.03(a),
the Company shall execute and the Trustee shall authenticate Securities of a
like aggregate principal amount at the Registrar’s request.  Any exchange or transfer shall be without
charge, except that the Company or the Registrar may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge that may be
imposed in relation thereto; provided that this sentence shall not apply to any
exchange pursuant to Section 2.11, 4.02(d) or 10.06.


 


(b)           Neither the Company, any Registrar nor the Trustee shall
be required to register the transfer of or exchange any Securities or portions
thereof in respect of which a Fundamental Change Purchase Notice has been
delivered and not withdrawn by the Holder thereof (except, in the case of the
purchase of a Security in part, the portion thereof not to be purchased).


 


15

















 


 


(c)           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 registration of transfer or exchange.


 


(d)           Any Registrar appointed pursuant to Section 2.03
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities upon
transfer or exchange of Securities.


 


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


 


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


 


Section 2.08.          Replacement Securities.


 


(a)           If (1) any mutilated Security is surrendered to the
Trustee, or (2) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee, such security or indemnity, in each
case, as may be required by them to save each of them harmless from any loss,
expense, claim or liability, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a protected purchaser, the
Company shall execute and upon a Company Request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a replacement Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.


 


(b)           If any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be purchased
by the Company pursuant to Article 3, or converted pursuant to Article 4,
the Company in its discretion may, instead of issuing a new Security, pay,
purchase or convert such Security, as the case may be.


 


(c)           Upon the issuance of any new Securities under this Section 2.08,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of counsel and the Trustee) in
connection therewith.


 


(d)           Every new Security issued pursuant to this Section 2.08
in lieu of any mutilated, destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company and each
Subsidiary Guarantor, whether or not the mutilated, destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of 


 


16

















 


this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.


 


(e)           The provisions of this Section 2.08 are (to the
extent lawful) exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.


 


Section 2.09.          Outstanding Securities.


 


(a)           Securities outstanding (“Outstanding”) at any time
are all Securities authenticated by the Trustee, except for those canceled by
it, those purchased pursuant to Article 3, those converted pursuant to Article 4,
those delivered to the Trustee for cancellation or surrendered for transfer or
exchange and those described in this Section 2.09 as not Outstanding.


 


(b)           If a Security is replaced pursuant to Section 2.08,
such replaced Security ceases to be Outstanding unless the Company receives
proof satisfactory to it that the replaced Security is held by a protected
purchaser.


 


(c)           If a Paying Agent holds in respect of the Outstanding
Securities on a Redemption Date, Fundamental Change Purchase Date or the Final
Maturity Date, as the case may be, money sufficient to pay the principal of and
accrued interest (including Special Interest), if any, on Securities (or
portions thereof) payable on that date, then on and after such Redemption Date,
Fundamental Change Purchase Date, Final Maturity Date, such Securities (or
portions thereof, as the case may be) shall cease to be Outstanding, interest
(including Special Interest), if any, on such Securities shall cease to accrue
and all other rights of the Holder will terminate unless otherwise specified in
this Indenture.


 


(d)           Subject to the restrictions contained in Section 2.10,
a Security does not cease to be Outstanding because the Company or an Affiliate
of the Company holds the Security.


 


Section 2.10.          Treasury Securities.


 


In determining whether the
Holders of the required principal amount of Securities have concurred in any
request, demand, authorization, notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by
any Affiliate of the Company or of such other obligor shall be disregarded,
except that, for purposes of determining whether the Trustee shall be protected
in relying on any such request, demand, authorization, notice, direction,
waiver or consent, only Securities which a Trust Officer of the Trustee
actually knows are so owned shall be so disregarded.


 


Section 2.11.          Temporary Securities.


 


Until definitive Securities
are ready for delivery, the Company may prepare and execute, and, upon receipt
of a Company Order, the Trustee shall authenticate and deliver, temporary
Securities.  Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Company with the consent of the Trustee considers appropriate for
temporary Securities.  Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary
Securities 


 


17

















 


representing an equal
principal amount of Securities.  The
temporary Securities will be exchanged for definitive Securities in accordance
with Sections 2.07 and 2.13 hereof. 
Until so exchanged, temporary Securities shall have the same rights
under this Indenture as the definitive Securities.


 


Section 2.12.          Cancellation.


 


The Company and any
Subsidiary Guarantor at any time may deliver Securities to the Trustee for
cancellation.  The Registrar, the Paying
Agent and the Conversion Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange, purchase, payment or
conversion.  The Trustee and no one else
shall cancel, in accordance with its standard procedures, all Securities
surrendered for transfer, exchange, purchase, payment, conversion or
cancellation and shall dispose of the cancelled Securities in accordance with
its customary procedures or deliver the canceled Securities to the Company upon
request.  All Securities which are
purchased or otherwise acquired by the Company or any of its Subsidiaries prior
to the Final Maturity Date pursuant to Article 3 shall be delivered to the
Trustee for cancellation, and the Company may not hold or resell such
Securities or issue any new Securities to replace any such Securities or any
Securities that any Holder has converted pursuant to Article 4.  The Trustee shall maintain a record of all
canceled Securities.  The Trustee shall
provide the Company a list of all Securities that have been canceled from time
to time as requested by the Company in writing.


 


Section 2.13.          Legend; Additional Transfer and
Exchange Requirements.


 


(a)           [Intentionally Omitted]


 


(b)           A Global Security may not be transferred, in whole or in
part, to any Person other than the Depositary or a nominee or any successor
thereof, and no such transfer to any such other Person may be registered; provided that the foregoing shall not prohibit any transfer
of a Security that is issued in exchange for a Global Security but is not
itself a Global Security.  No transfer of
a Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name of
such Person.  Notwithstanding any other
provisions of this Indenture or the Securities, transfers of a Global Security,
in whole or in part, shall be made only in accordance with this Section 2.13.


 


(c)           [Intentionally Omitted]


 


(d)           [Intentionally Omitted]


 


(e)           The provisions below
shall apply only to Global Securities or any Securities issued in exchange for
a Global Security:


 


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


 


18














 


(2)           Notwithstanding
any other provisions of this Indenture or the Securities, a Global Security
shall not be exchanged in whole or in part for a Security registered, and no
transfer of a Global Security in whole or in part shall be registered in the
name of any Person other than the Depositary or one or more nominees thereof; provided that a Global Security may be exchanged for
Securities registered in the names of any person designated by the Depositary
in the event that (A) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or such
Depositary has ceased to be a “clearing agency” registered under the Exchange
Act, and in either case a successor Depositary is not appointed by the Company
within 60 days after receiving such notice or becoming aware that the
Depositary has ceased to be a “clearing agency” or (B) an Event of Default
has occurred and is continuing with respect to the Securities.  Any Global Security exchanged pursuant to the
preceding sentence shall be so exchanged as directed by the Depositary.  Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security; provided, however, that
any such Security so issued that is registered in the name of a Person other
than the Depositary or a nominee thereof shall not be a Global Security.


 


(3)           Securities
issued in exchange for a Global Security or any portion thereof that are not
issued as a Global Security shall be issued in definitive, fully registered
form, without interest coupons, shall have a principal amount equal to that of
such Global Security or portion thereof to be so exchanged, shall be registered
in such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein.  Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Trustee or the Registrar.  With regard to any Global Security to be
exchanged in part, either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the principal amount thereof
shall be reduced, by an amount equal to the portion thereof to be so exchanged,
by means of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable on such exchange
to or upon the order of the Depositary or an authorized representative thereof.


 


(4)           Subject
to clause (6) of this Section 2.13(e), the registered Holder may
grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.


 


(5)           In
the event of the occurrence of any of the events specified in clause (2) of
this Section 2.13(e), the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully
registered form, without interest coupons.


 


(6)           Neither
Agent Members nor any other Persons on whose behalf Agent Members may act shall
have any rights under this Indenture with respect to any Global Security
registered in the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the case may be,
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the 


 


19

















 


absolute owner and Holder of such Global Security for all purposes
whatsoever.  Notwithstanding the
foregoing, nothing herein shall (i) prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or (ii) impair, as between the Depositary,
its Agent Members and any other Person on whose behalf an Agent Member may act,
the operation of customary practices of such Persons governing the exercise of
the rights of a Holder of any Security.


 


(7)           At
such time as all interests in a Global Security have been converted, cancelled
or exchanged for Securities in certificated form, such Global Security shall,
upon receipt thereof, be cancelled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the Securities
Custodian, subject to Section 2.12 of this Indenture.  At any time prior to such cancellation, if
any interest in a Global Security is converted, canceled or exchanged for
Securities in certificated form, the principal amount of such Global Security
shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Securities Custodian, be appropriately reduced,
and an endorsement shall be made on such Global Security, by the Trustee or the
Securities Custodian, at the direction of the Trustee, to reflect such
reduction.


 


Section 2.14.          CUSIP Numbers.


 


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


 


Section 2.15.          Calculations.


 


Except as otherwise
specifically stated herein or in the Securities, all calculations to be made in
respect of the Securities shall be the obligation of the Company.  All calculations made by the Company or its
agent as contemplated pursuant to the terms hereof and of the Securities shall
be made in good faith and be final and binding on the Holders absent manifest
error.  The Company shall provide a
schedule of calculations to the Trustee, and the Trustee shall be entitled to
conclusively rely upon the accuracy of the calculations by the Company without
independent verification.  The Trustee
shall forward calculations made by the Company to any Holder of Securities upon
request.


 


Section 2.16.          Payment of Interest; Interest
Rights Preserved.


 


Interest (including Special
Interest), if any, on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest (including Special 


 


20

















 


Interest), if any, shall be
paid to the Person in whose name the Security is registered at the close of
business on the Regular Record Date for such interest payment.


 


Any
interest (including Special Interest), if any, on any Security which is
payable, but is not punctually paid or duly provided for, on the Stated
Maturity of such interest (including Special Interest), if any, and interest on
such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called “Defaulted Interest”), shall forthwith cease
to be payable to the Holder on the Regular Record Date; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Subsection (a) or (b) below:


 


(a)           The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 20 days after such notice) of the proposed
payment (the “Special Payment Date”), and by 10:00 a.m. New York
City time on the date of payment the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the Special Payment Date, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this subsection provided. 
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the Special Payment Date and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
in writing of such Special Record Date. 
Unless the Company issues a press release to the same effect, in the
name and at the expense of the Company, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at its
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date or notify in such other manner as the Trustee
determines, including in accordance with any Applicable Procedures.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Payment Date
therefor having been so mailed or otherwise conveyed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities are registered on
such Special Record Date and shall no longer be payable pursuant to the
following paragraph (b).


 


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


 


Subject to the foregoing
provisions of this Section 2.16, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest (including Special Interest),
if any, accrued and unpaid, and to accrue, which were carried by such other
Security.


 


21

















 


Section 2.17.          Computation of Interest.


 


Interest (including Special
Interest) on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.


 


ARTICLE 3


 


REDEMPTION AND REPURCHASE


 


Section 3.01.          Company’s
Right to Redeem; Notice to Trustee.


 


Prior to
                    ,
20    , the Securities will not be redeemable at the
Company’s option.  On or after
                    ,
20    , if the Last Reported Sale Price of the Common Stock
for 20 or more Trading Days (whether or not consecutive) in a period of 30
consecutive Trading Days ending on the Trading Day prior to the date the
Company provides the notice of redemption to Holders exceeds 130% of the
applicable Conversion Price in effect on each such Trading Day, the Company may
redeem for cash all or part of the Securities, upon notice before the
Redemption Date to the Trustee and the Paying Agent as set forth below in this Section 3.01;
provided that the Company shall not
redeem the Securities if the Redemption Date would be after the Final Maturity
Date.  The redemption price (the “Redemption
Price”) shall equal to 100% of the principal amount of the Securities being
redeemed, plus any accrued and unpaid interest (including Special Interest), if
any, to, but excluding, the Redemption Date; provided
that if the Redemption Date falls after a Regular Record Date and on or prior
to the corresponding Interest Payment Date, the Redemption Price shall be 100%
of the principal amount of the Securities redeemed but shall not include
accrued and unpaid interest(including Special Interest), if any. Instead, the
Company shall pay such accrued and unpaid interest (including Special Interest,
if any), if any, on the Interest Payment Date, to the Holder of record at the
close of business on the corresponding Regular Record Date.  If the Company elects to redeem Securities
pursuant to this Section 3.01, it shall notify the Trustee and the Paying
Agent in writing of such election together with the Redemption Date, the
Conversion Rate, the principal amount of Securities to be redeemed and the
Redemption Price.


 


The Company shall give the
notice to the Trustee and the Paying Agent of the Company’s election to redeem
Securities pursuant to this Section 3.01, at least 30 days but not more
than 60 days before the Redemption Date (subject to Section 3.03).


 


Section 3.02.          Selection
of Securities to be Redeemed.


 


If the Company decides to
redeem fewer than all of the Securities, unless the procedures of the
Depositary provide otherwise, the Trustee shall select the Securities to be
redeemed by lot, on a pro rata basis or by another method the Trustee considers
fair and appropriate.


 


Securities and portions of
Securities that the Trustee selects shall be in principal amounts of $1,000 or
a multiple of $1,000.  Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.  The
Trustee shall notify 


 


22

















 


the Company promptly (but in
any case within seven days of the Trustee’s receipt of the notice from the
Company referred to in Section 3.01 unless a shorter notice is acceptable
to the Company) of the Securities or portions of the Securities selected to be
redeemed and, in the case of any Securities selected for partial redemption,
the method it has chosen for the selection of the portions of the Securities
selected to be redeemed.


 


Following a notice of
redemption, Securities and portions of Securities are convertible pursuant to Article 4,
by the Holder until the close of business on the Business Day prior to the
Redemption Date.  If any Security
selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. 
Securities that have been converted during a selection of Securities to
be redeemed may be treated by the Trustee as outstanding for the purpose of
such selection.


 


Section 3.03.          Notice
of Redemption.


 


At least 30 days but no more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption (substantially in the form set forth in Exhibit A) by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed.


 


The
notice shall identify the Securities to be redeemed and shall state (along with
any other information the Company wishes to include):


 


(a)           the Redemption Date;


 


(b)           the Redemption Price;


 


(c)           the Conversion Rate;


 


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


 


(e)           that Securities may be converted at
any time before the close of business on the Business Day prior to the
Redemption Date;


 


(f)            that Securities called for
redemption and not converted shall be redeemed on the Redemption Date;


 


(g)           that Holders who want to convert
their Securities must satisfy the requirements set forth in the Securities;


 


(h)           that Securities called for redemption
must be surrendered to the Paying Agent (by effecting book entry transfer of
the Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to collect the Redemption Price;


 


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


 


23

















 


(j)            that, unless the Company defaults in
making payments of such Redemption Price, interest (including Special
Interest), if any, on the Securities called for redemption shall cease to
accrue from and after the Redemption Date; and


 


(k)           the CUSIP or other similar number(s),
as the case may be, of the Securities being redeemed.


 


At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at
the Company’s expense, provided that
the Company makes such request at least seven Business Days (or such shorter
period as may be satisfactory to the Trustee) prior to the date by which such
notice of redemption must be given to Holders in accordance with this Section 3.03.


 


Section 3.04.          Effect
of Notice of Redemption.


 


Once notice of redemption is
given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice except for
Securities that are converted in accordance with the terms of this
Indenture.  Upon surrender to the Paying
Agent, such Securities shall be paid at the Redemption Price stated in the
notice and from and after the Redemption Date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest (including Special Interest), if any, and the rights of the Holders
therein shall terminate (other than the right to receive the Redemption Price).


 


Section 3.05.          Deposit
of Redemption Price.


 


Prior to 10:00 a.m.
(New York City time), on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either
of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Securities to be redeemed on that
date other than Securities or portions of Securities called for redemption
which on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. 
Upon written request of the Company, the Paying Agent shall as promptly
as practicable return to the Company any money not required for the purpose of
paying the Redemption Price because of conversion of Securities pursuant to Article 4.  If such money is then held by the Company or
a Subsidiary or an Affiliate of either in trust and is not required for such
purpose it shall be discharged from such trust.


 


Section 3.06.          Securities
Redeemed in Part.


 


Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall,
without charge, authenticate and deliver to the Holder a new Security in an
authorized denomination equal in principal amount to the unredeemed portion of
the Security surrendered.


 


Section 3.07.          [Intentionally Omitted]


 


24

















 


Section 3.08.          Repurchase
of Securities at Option of the Holder upon a Fundamental Change.


 


(a)           In the event a Fundamental Change shall occur at any time
when any Securities remain outstanding, each Holder shall have the right, at
such Holder’s option, to require the Company to purchase all of such Holders’
Securities or any portion of the principal amount thereof that is equal to
$1,000 or an integral multiple thereof on a date specified by the Company (the “Fundamental
Change Purchase Date”) that is no earlier than the 20th calendar day following the date of, and no
later than the 35th calendar day following the date of, delivery
of the Fundamental Change Company Notice (as defined below) at a purchase price
in cash equal to 100% of the principal amount of the Securities tendered for
purchase, plus accrued and unpaid interest (including Special Interest), if
any,  on those Securities to, but
excluding, the Fundamental Change Purchase Date (the “Fundamental Change
Purchase Price”), subject to satisfaction by or on behalf of any Holder of
the requirements set forth in Section 3.08(c); provided
that if the Fundamental Change Purchase Date is on a date that is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
the Fundamental Change Purchase Price shall be 100% of the principal amount of
the Securities repurchased but shall not include accrued and unpaid interest
(including Special Interest), if any. Instead, the Company shall pay such
accrued and unpaid interest (including Special Interest), if any, on the Interest
Payment Date, to the Holder of record at the close of business on the
corresponding Regular Record Date.


 


(b)           On or before the 20th calendar day
after the occurrence of a Fundamental Change, the Company shall mail a written
notice of the occurrence of the Fundamental Change and of the resulting
purchase right to the Trustee, Paying Agent and to each Holder of record of
Securities (a “Fundamental Change Company Notice”).  The Fundamental Change Company Notice shall
include the form of a Fundamental Change Purchase Notice (defined below) to be
completed by the Holder and shall state:


 


(1)           the
events causing such Fundamental Change;


 


(2)           the
date of such Fundamental Change;


 


(3)           the
last date by which the Fundamental Change Purchase Notice must be delivered to
elect the purchase option pursuant to this Section 3.08;


 


(4)           the
Fundamental Change Purchase Date;


 


(5)           the
Fundamental Change Purchase Price;


 


(6)           the
Holder’s right to require the Company to purchase the Securities;


 


(7)           the
name and address of each Paying Agent and Conversion Agent;


 


(8)           the
then effective Conversion Rate and any adjustments to the Conversion Rate
resulting from such Fundamental Change;


 


(9)           the
procedures that the Holder must follow to exercise rights under Article 4
of this Indenture and that the Securities as to which a Fundamental Change
Purchase Notice has been given may be converted into Common Stock pursuant to 


 


25

















 


Article 4 of this Indenture only to the extent that the Fundamental
Change Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


(10)         the
procedures that the Holder must follow to exercise rights under this Section 3.08;


 


(11)         the
procedures for withdrawing a Fundamental Change Purchase Notice;


 


(12)         that,
unless the Company fails to pay such Fundamental Change Purchase Price,
Securities covered by any Fundamental Change Purchase Notice will cease to be
outstanding and interest, (including Special Interest), if any, will cease to
accrue on and after the Fundamental Change Purchase Date; and


 


(13)         the
CUSIP number of the Securities.


 


At
the Company’s written request, the Trustee shall give such Fundamental Change
Company Notice in the Company’s name and at the Company’s expense; provided that, in all cases, the text of such Fundamental
Change Company Notice shall be prepared by the Company; provided that the Company makes such
request at least seven Business Days (or such shorter period as may be
satisfactory to the Trustee) prior to the date by which such Fundamental Change
Company Notice must be given to Holders in accordance with this Section 3.08.  In connection with the delivery of the
Fundamental Change Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the
Fundamental Change Company Notice in a newspaper of general circulation in the
City of New York or publish information on a website of the Company or through
such other public medium the Company may use at that time.  If any of the Securities is in the form of a
Global Security, then the Company shall modify such notice to the extent
necessary to accord with the Applicable Procedures relating to the purchase of
Global Securities.  No failure of the Company to give the Fundamental Change Company Notice
and no defect therein shall limit the purchase rights of the Holders of
Securities or affect the validity of the proceedings for the purchase of the
Securities pursuant to this Section 3.08.


 


(c)           A Holder may exercise its rights specified in Section 3.08(a) upon
delivery of a written notice (which shall be in substantially the form set
forth in the form of Security attached as Exhibit A under the heading “Fundamental
Change Purchase Notice” and which may be delivered by letter, overnight
courier, hand delivery, facsimile transmission or in any other written form
and, in the case of Global Securities, may be delivered electronically or by
other means in accordance with the Depositary’s Applicable Procedures) of the
exercise of such rights (a “Fundamental Change Purchase Notice”) to the
Paying Agent at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date, subject to
extension to comply with applicable law.


 


(1)           The
Fundamental Change Purchase Notice shall state: 
(A) if Certificated Securities are to be purchased, the certificate
numbers of the Securities which the Holder will deliver to be purchased (or, if
the Security is held in global form, any other items required to comply with
the Applicable Procedures), (B) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased, which portion 


 


26

















 


must be a principal amount of $1,000 or any integral multiple thereof
and (C) that such Security shall be purchased as of the Fundamental Change
Purchase Date pursuant to the terms and conditions specified in the Securities
and in this Indenture.


 


(2)           The
delivery of a Security for which a Fundamental Change Purchase Notice has been
timely delivered to any Paying Agent and not validly withdrawn prior to, on or
after the Fundamental Change Purchase Date (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to the
receipt by the Holder of the Fundamental Change Purchase Price therefor.


 


(3)           The
Company shall only be obliged to purchase, pursuant to this Section 3.08,
a portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple thereof.  Provisions of
this Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security.


 


(4)           Notwithstanding
anything herein to the contrary, any Holder delivering to a Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.08(c) shall
have the right to withdraw such Fundamental Change Purchase Notice in whole or
in a portion thereof that is a principal amount of $1,000 or in an integral
multiple thereof at any time prior to the close of business on the Business Day
prior to the Fundamental Change Purchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 3.09(b).


 


(5)           A
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Purchase Notice or written withdrawal thereof.


 


(6)           Anything
herein to the contrary notwithstanding, in the case of Global Securities, any
Fundamental Change Purchase Notice may be delivered or withdrawn and such
Securities may be surrendered or delivered for purchase in accordance with the
Applicable Procedures as in effect from time to time.


 


(7)           There
shall be no repurchase of any Securities pursuant to this Section 3.08 if
an Event of Default (other than a default in the payment of the Fundamental
Change Purchase Price) has occurred prior to, on or after, as the case may, the
giving by the Holders of such Securities of the required Fundamental Change
Purchase Notice and such Event of Default is continuing.  The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a
Fundamental Change Purchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Fundamental Change Purchase Price)
in which case, upon such return, the Fundamental Change Purchase Notice with
respect thereto shall be deemed to have been withdrawn.


 


Section 3.09.          Effect
of Fundamental Change Purchase Notice.


 


(a)           Upon receipt by any Paying Agent of a Fundamental Change
Purchase Notice, the Holder of the Security in respect of which such
Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified below) 


 


27

















 


thereafter be entitled to receive the Fundamental Change Purchase Price
with respect to such Security.  The
Fundamental Change Purchase Price shall be paid to such Holder promptly
following the later of (i) the Fundamental Change Purchase Date with
respect to such Security (provided such Holder has satisfied the conditions in Section 3.08)
and (ii) the time of delivery of such Security to a Paying Agent by the
Holder thereof in the manner required by Section 3.08.  A Security in respect of which a Fundamental
Change Purchase Notice has been given by the Holder thereof may not be
converted pursuant to Article 4 hereof on or after the date of the
delivery of such Fundamental Change Purchase Notice, unless either (i) such
Fundamental Change Purchase Notice has first been validly withdrawn in
accordance with Section 3.09(b); or (ii) there shall be a default in
the payment of the Fundamental Change Purchase Price, provided,
that the conversion right with respect to such Security shall terminate at the
close of business on the date such default is cured and such Security is
purchased in accordance herewith.


 


(b)           A Fundamental Change Purchase Notice may be withdrawn by
any Holder delivering such Fundamental Change Purchase Notice, as the case may
be, upon delivery of a written notice of withdrawal (which may be delivered by
mail, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Applicable Procedures)
to and actually received by Paying Agent at any time prior to the close of
business on the Business Day immediately preceding the Fundamental Change
Purchase Date, specifying:


 


(i)            if
Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted
(or, if the Security is held in global form, any other items required to comply
with the Applicable Procedures);


 


(ii)           the
principal amount of the Securities in respect of which such notice of
withdrawal is being submitted, which principal amount must be $1,000 or an
integral multiple thereof; and


 


(iii)          the
principal amount, if any, of the Securities that remains subject to the
original Fundamental Change Purchase Notice, as the case may be, and that has
been or shall be delivered for purchase by the Company which principal amount
must be $1,000 or an integral multiple thereof.


 


The Paying Agent will promptly return to the
respective Holders thereof any Certificated Securities with respect to which a
Fundamental Change Purchase Notice has been withdrawn in compliance with the
provisions of this Section 3.09(b).


 


Section 3.10.          Deposit
of Fundamental Change Purchase Price.


 


Prior to 10:00 a.m.,
New York City time, on a Fundamental Change Purchase Date, the Company shall
deposit with the Paying Agent (or if the Company or an Affiliate of the Company
is acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 2.04) an amount in cash (in immediately available funds)
sufficient to pay the aggregate Fundamental Change Purchase Price of all the
Securities or portions thereof that are to be purchased on that Fundamental
Change Purchase Date.


 


28














 


If
a Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m.,
New York City time, on a Fundamental Change Purchase Date, cash sufficient to
pay the aggregate Fundamental Change Purchase Price of all Securities for which
a Fundamental Change Purchase Notice has been delivered and not validly
withdrawn in accordance with this Indenture, then, on and after such
Fundamental Change Purchase Date, such Securities shall cease to be outstanding
and interest (including Special Interest), if any, on such Securities shall
cease to accrue, whether or not such Securities are delivered to the Paying
Agent, and the rights of the Holders in respect thereof shall terminate (other
than the right to receive the Fundamental Change Purchase Price, as applicable,
upon delivery of such Securities by their Holders to the Paying Agent).


 


Section 3.11.                             Securities
Purchased in Part.


 


Any
Certificated Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
reasonably satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder’s attorney duly authorized in writing), and
promptly after a Fundamental Change Purchase Date, the Company shall issue and
the Trustee shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly), authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities, of such authorized
denomination or denominations as may be requested by such Holder, in aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased by the Company on
such Fundamental Change Purchase Date.


 


Section 3.12.                             Repayment to
the Company.


 


To
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 3.10 exceeds the aggregate Fundamental Change Purchase Price of
the Securities or portions thereof that the Company is obligated to purchase on
the Fundamental Change Purchase Date, then promptly after the Fundamental
Change Purchase Date, the Paying Agent shall return any such excess cash to the
Company.


 


Section 3.13.                             Compliance With
Securities Laws Upon Purchase of Securities.


 


When
complying with the provisions of Article 3 hereof and subject to any
exemptions available under applicable law, the Company shall:


 


(a)                                  comply with the
provisions of any tender offer rules under the Exchange Act that may then
be applicable to the Company’s purchase of Securities under Article 3;


 


(b)                                 file a Schedule
TO (or any successor or similar schedule, form or report) if required under the
Exchange Act; and


 


(c)                                  otherwise
comply with all federal and state securities laws so as to permit the rights
and obligations in connection with any purchase pursuant to this Article 3
to be exercised in the time and in the manner specified herein.


 


29

















 


To the extent that
compliance with any such laws, rules and regulations would result in a
conflict with any of the terms hereof, this Indenture is hereby modified to the
extent required for the Company to comply with such laws, rules and
regulations.


 


Section 3.14.                             Purchase of
Securities In Open Market.


 


The Company may purchase
Securities in the open market or by tender at any price or pursuant to private
agreements.  The Company shall surrender
any Security purchased by the Company pursuant to this Article 3 to the
Trustee for cancellation.  Any Securities
surrendered to the Trustee for cancellation may not be reissued or resold by
the Company and will be canceled promptly in accordance with Section 2.12.


 


ARTICLE 4


 


CONVERSION


 


Section 4.01.                             Right to Convert.  (a)  Subject to and upon
compliance with the provisions of this Indenture, each Holder of Securities
shall have the right, at such Holder’s option, to convert the principal amount
of any such Securities, or any portion of such principal amount equal to $1,000
or a multiple of $1,000 thereof, at the Conversion Rate in effect on the
Conversion Date for such Securities, at any time prior to the close of business
on the second Scheduled Trading Day immediately preceding the Final Maturity
Date.


 


(b)                                 Securities may
not be converted after the close of business on the second Scheduled Trading
Day immediately preceding the Final Maturity Date.


 


Section 4.02.                             Conversion
Procedures.  (a) 
Each Security shall be convertible at the office of the Conversion Agent and,
if applicable, in accordance with the procedures of the Depositary.


 


(b)                                 In order to
exercise the conversion privilege with respect to any interest in a Global
Security, the Holder must complete the appropriate instruction form for
conversion pursuant to the Depositary’s book-entry conversion program, furnish
appropriate endorsements and transfer documents if required by the Company or
the Conversion Agent, and pay the funds, if any, required by Section 4.03(c) and
any taxes or duties if required pursuant to Section 4.08, and the
Conversion Agent must be informed of the conversion in accordance with the
customary practice of the Depositary. In order to exercise the conversion
privilege with respect to any Certificated Securities, the Holder of any such
Securities to be converted, in whole or in part, shall:


 


(i)                                     complete and manually sign
the conversion notice provided on the back of the Security (the “Conversion
Notice”) or a facsimile of the Conversion Notice;


 


(ii)                                  deliver the Conversion
Notice, which is irrevocable, and the Security to the Conversion Agent;


 


(iii)                               if required, furnish
appropriate endorsements and transfer documents,


 


30

















 


(iv)                              make any payment required
under Section 4.03(c); and


 


(v)                                 if required, pay all
transfer or similar taxes as set forth in Section 4.08.


 


The date on which the Holder
satisfies all of the applicable requirements set forth above is the “Conversion
Date.” The Conversion Agent will, as promptly as possible, and in any event
within two (2) Business Days of the receipt thereof, provide the Company
with notice of any conversion by a Holder of the Securities.


 


(c)                                  Each Conversion
Notice shall state the name or names (with address or addresses) in which any
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued. All such Securities surrendered for
conversion shall, unless the shares issuable on conversion are to be issued in
the same name as the registration of such Securities, be duly endorsed by, or
be accompanied by instruments of transfer in form satisfactory to the Company
duly executed by, the Holder or his duly authorized attorney.


 


(d)                                 In case any
Securities of a denomination greater than $1,000 shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of the Securities so surrendered,
without charge, new Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered
Securities.


 


Each conversion shall be
deemed to have been effected as to any such Securities (or portion thereof)
surrendered for conversion on the relevant Conversion Date.  The person in whose name the certificate or
certificates for the number of shares of Common Stock that shall be issuable
upon such conversion shall become the holder of record of such shares of Common
Stock as of the close of business on such Conversion Date. Notwithstanding the
foregoing and anything contained in this Indenture to the contrary, in no event
shall a Holder be entitled to the benefit of a Conversion Rate adjustment
pursuant to the provisions of Section 4.04 in respect of Securities
surrendered for conversion if, by virtue of being deemed the record holder of
the shares of Common Stock issuable upon such conversion pursuant to the
foregoing sentence, such Holder participates, as a result of being such holder
of  record, in the transaction or event
that would otherwise give rise to such Conversion Rate adjustment to the same
extent and in the same manner as holders of shares of Common Stock generally.


 


(e)                                  Upon the
conversion of an interest in Global Securities, the Trustee (or other
Conversion Agent appointed by the Company) shall make a notation on such Global
Securities as to the reduction in the principal amount represented thereby. The
Company shall notify the Trustee in writing of any conversions of Securities
effected through any Conversion Agent other than the Trustee.


 


(f)                                    Notwithstanding
the foregoing, a Security in respect of which a Holder has delivered a
Fundamental Change Purchase Notice exercising such Holder’s option to require
the Company to purchase such Security may be converted only if such notice of
exercise is withdrawn in accordance with Article 3 hereof prior to the
close of business on the Business Day prior to the relevant Fundamental Change
Purchase Date.


 


31

















 


Section 4.03.                             Payments Upon
Conversion.  (a) Upon
any conversion of any Securities, on the third Business Day immediately
following the Conversion Date, the Company shall deliver to the converting
Holder a number of shares of Common Stock equal to (i) the aggregate
principal amount of such Securities to be converted divided by $1,000,
multiplied by (ii) the Conversion Rate in effect as of such Conversion
Date, together with any cash payment for any fractional share of Common Stock
as described in this Section 4.03.


 


(b)                                 Subject to Section 4.03(c) below,
upon conversion, Holders shall not receive any separate cash payment for
accrued and unpaid interest (including Special Interest), if any, unless such
conversion occurs between a Regular Record Date and the Interest Payment Date
to which it relates.


 


(c)                                  Upon the conversion
of any Securities, the Holder will not be entitled to receive any separate cash
payment for accrued and unpaid interest (including Special Interest), if any,
except to the extent specified below. The Company’s delivery to the Holder of
Common Stock together with any cash payment for any fractional share of Common
Stock, into which a Security is convertible will be deemed to satisfy in full
the Company’s obligation to pay the principal amount of the Securities so
converted and accrued and unpaid interest (including Special Interest), if any,
to, but not including, the Conversion Date. As a result, accrued and unpaid
interest (including Special Interest), if any, to, but not including, the
Conversion Date will be deemed to be paid in full rather than cancelled,
extinguished or forfeited. Notwithstanding the foregoing, if Securities are
converted after the close of business on a Regular Record Date for the payment
of interest, Holders of such Securities at the close of business on such
Regular Record Date will receive the interest (including Special Interest), if
any, payable on such Securities on the corresponding Interest Payment Date
notwithstanding the conversion. Securities surrendered for conversion during
the period from the close of business on any Regular Record Date to the open of
business on the immediately following Interest Payment Date must be accompanied
by funds equal to the amount of interest (including Special Interest), if any,
payable on the Securities so converted on such following Interest Payment Date;
provided that no such payment need be made (i) if the Company has called
the Securities for redemption on a Redemption Date that falls after a Regular
Record Date for an Interest Payment Date and on or prior to the related
Interest Payment Date, (ii) for conversions following the Regular Record
Date immediately preceding the Final Maturity Date, (iii) if the Company
has specified a Fundamental Change Purchase Date that is after a Regular Record
Date and on or prior to the corresponding Interest Payment Date, or (iv) to
the extent of any overdue interest, if any overdue interest exists at the time
of conversion with respect to such Security.


 


(d)                                 The Company
shall not issue fractional shares of Common Stock upon conversion of
Securities. If multiple Securities shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. If any fractional share of Common Stock would be issuable upon
the conversion of any Securities, the Company shall make payment therefor in
cash in lieu of fractional shares of Common Stock based on the Last Reported
Sale Price on the relevant Conversion Date.


 


32

















 


Section 4.04.                             Adjustment of
Conversion Rate.  The
Conversion Rate shall be adjusted from time to time by the Company if any of
the following events occurs, except that the Company will not make any
adjustment to the Conversion Rate if Holders of Securities participate, as a
result of holding the Securities, in any of the transactions described under Section 4.04(a) (but
only with respect to stock dividends or distributions), Section 4.04(b), Section 4.04(c),
and Section 4.04(d), at the same time as holders of the Common Stock
participate, without having to convert their Securities, as if such Holders
held a number of shares of Common Stock equal to the Conversion Rate in effect
for such Securities immediately prior to the Ex-Dividend Date for such event.


 


(a)                                  If the Company,
at any time or from time to time while any of the Securities are outstanding,
exclusively issues shares of its Common Stock as a dividend or distribution on
shares of Common Stock, or if the Company effects a share split or share
combination, then the Conversion Rate will be adjusted based on the following
formula:


 


	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  OS1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0

  	
   

  



 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Ex-Dividend Date of
  such dividend or distribution, or immediately prior to the open of business
  on the effective date of such share split or share combination, as
  applicable;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on such Ex-Dividend Date or
  such effective date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately prior to the open of business on such
  Ex-Dividend Date or such effective date; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS1

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately after giving effect to such dividend,
  distribution, share split or share combination.

  



 


Such adjustment shall become
effective immediately after the open of business on the Ex-Dividend Date for
such dividend or distribution or the effective date for such share split or
share combination. If any dividend or distribution of the type described in
this Section 4.04(a) is declared but not so paid or made, the Conversion
Rate shall again be adjusted to the Conversion Rate which would then be in
effect if such dividend or distribution had not been declared.


 


(b)                                 If the Company,
at any time or from time to time while any of the Securities are outstanding,
issues to all or substantially all holders of the Common Stock any rights or
warrants entitling them for a period of not more than 60 calendar days after
the announcement date of such issuance to subscribe for or purchase shares of
the Common Stock at a price per share less than the average of the Last
Reported Sale Prices of Common Stock for the 10 consecutive Trading-Day period
ending on the Trading Day immediately preceding the date of announcement of
such issuance, the Conversion Rate shall be adjusted based on the following
formula:


 


33

















 


	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  OS0 + X

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0 + Y

  	
   

  



 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Ex-Dividend Date for
  such issuance;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately prior to the open of business on such
  Ex-Dividend Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  =

  	
   

  	
  the total number of shares
  of Common Stock issuable pursuant to such rights or warrants; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Y

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock equal to the aggregate price payable to exercise such rights or
  warrants divided by the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day
  period ending on the Trading Day immediately preceding the date of
  announcement of the issuance of such rights or warrants.

  



 


To the extent such rights or
warrants are not exercised prior to their expiration or termination, the
Conversion Rate shall be readjusted to the Conversion Rate which would be in
effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In the event that such rights or warrants are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if the date fixed for the determination of
shareholders entitled to receive such rights or warrants had not been fixed.
For the purposes of this Section 4.04(b), in determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than the average of the Last Reported Sale Prices of
Common Stock for the 10 consecutive Trading Day period ending on the Trading
Day immediately preceding the date of announcement of such issuance, and in
determining the aggregate exercise price payable for such shares of Common Stock,
there shall be taken into account any consideration received by the Company for
such rights or warrants and any amount payable on the exercise thereof, with
the value of such consideration, if other than cash, as shall be determined in
good faith by the Board of Directors.


 


(c)                                  If the Company,
at any time or from time to time while the Securities are outstanding,
distributes shares of any class of capital stock of the Company, evidences of
its indebtedness, other assets or property of the Company or rights or warrants
to acquire the Company’s capital stock or other securities to all or
substantially all holders of its Common Stock, excluding:


 


34

















 


(i)                                     dividends or distributions
and rights or warrants as to which an adjustment was effected pursuant to Section 4.04(a) or
Section 4.04(b);


 


(ii)                                  dividends or distributions
paid exclusively in cash; and


 


(iii)                               Spin-Offs to which the
provisions set forth below in this Section 4.04(c) shall apply;


 


then the Conversion Rate
shall be adjusted based on the following formula:


 


	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  SP0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP0 - FMV

  	
   

  



 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Ex-Dividend Date for
  such distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading
  Day period ending on the Trading Day immediately preceding the Ex-Dividend
  Date for such distribution; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV

  	
   

  	
  =

  	
   

  	
  the fair market value (as
  determined by the Board of Directors) of the shares of capital stock,
  evidences of indebtedness, assets, property, rights or warrants distributed
  with respect to each outstanding share of the Common Stock on the Ex-Dividend
  Date for such distribution.

  



 


Such adjustment shall become
effective immediately after the open of business on the Ex-Dividend Date for
such distribution. If the Board of Directors determines the “FMV” (as defined
above) of any distribution for purposes of this Section 4.04(c) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used
in computing the average of the Last Reported Sale Prices of the Common Stock.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or
greater than “SP0” (as defined
above), in lieu of the foregoing adjustment, each Holder of Securities shall
receive, at the same time and upon the same terms as holders of the Common
Stock, the amount and kind of securities and assets such Holder would have
received as if such Holder owned a number of shares of Common Stock equal to
the Conversion Rate in effect on the Ex-Dividend Date for the distribution of
the securities or assets.


 


35

















 


With
respect to an adjustment pursuant to this Section 4.04(c) where there
has been a payment of a dividend or other distribution on the Common Stock of
shares of capital stock of any class or series, or similar equity interest, of
or relating to a Subsidiary or other business unit and such shares of capital
stock or similar equity interests are listed for trading on a securities
exchange (a “Spin-Off”), the Conversion Rate shall be increased based on
the following formula:


 


	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  FMV0 + MP0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  MP0

  	
   

  



 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the end of the Valuation Period (as defined
  below);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the end of the Valuation Period;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV0

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of the capital stock or similar equity interest
  distributed to holders of Common Stock applicable to one share of Common
  Stock (determined for purposes of the definition of Last Reported Sale Price
  as if such capital stock or similar equity interest were the Common Stock)
  over the first ten consecutive Trading Day period after, and including, the
  Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MP0

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of Common Stock over the Valuation Period.

  
	
   

  	
   

  	
   

  	
   

  	
   

  



The adjustment to the
Conversion Rate under the preceding paragraph will occur on the last day of the
Valuation Period; provided that in respect of any conversion during the
Valuation Period, references above to 10 Trading Days shall be deemed replaced
with such lesser number of Trading Days as have elapsed between the Ex-Dividend
Date of such Spin-Off and the Conversion Date in determining the applicable
Conversion Rate.


 


For the purposes of this Section 4.04(c) (and
subject in all respects to Section 4.11), rights or warrants distributed
by the Company to all holders of its Common Stock entitling them to subscribe
for or purchase shares of the Company’s capital stock (either initially or
under certain circumstances), which rights or warrants, until the occurrence of
a specified event or events (a “Trigger Event”): (1) are deemed to
be transferred with such shares of Common Stock; (2) are not exercisable;
and (3) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this Section 4.04(c),
(and no adjustment to the Conversion Rate under this Section 4.04(c) will
be required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 4.04(c). If any such right or warrant, including any such existing
rights or warrants distributed prior to the date of this Indenture, are subject
to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or
other assets, then the date of the occurrence of any and each such event shall
be deemed to be the date of distribution and Ex-Dividend Date of such 


 


36

















 


deemed
distribution (in which case the original rights or warrants shall be deemed to
terminate and expire on such date without exercise by any of the holders). In
addition, in the event of any distribution or deemed distribution of rights or
warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 4.04(c) was made, (1) in the case of any
such rights or warrants which shall all have been redeemed or purchased without
exercise by any Holders thereof, upon such final redemption or repurchase (x) the
Conversion Rate shall be readjusted as if such rights or warrants had not been
issued and (y) the Conversion Rate shall then again be readjusted to give
effect to such distribution, deemed distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share
redemption or purchase price received by holders of Common Stock with respect
to such rights or warrants (assuming each such holder had retained such rights
or warrants), made to all holders of Common Stock as of the date of such
redemption or purchase, and (2) in the case of such rights or warrants
which shall have expired or been terminated without exercise by any holders
thereof, the Conversion Rate shall be readjusted as if such rights and warrants
had not been issued.


 


For the purposes of this Section 4.04(c) and
subsections (a) and (b) of this Section 4.04, any dividend or
distribution to which this Section 4.04(c) applies which also
includes one or both of:


 


(A)                              a dividend or
distribution of shares of Common Stock to which Section 4.04(a) applies
(the “Clause A Distribution”), and


 


(B)                                a
dividend or distribution of rights or warrants to which Section 4.04(b) applies
(the “Clause B Distribution”),


 


then (1) such dividend
or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) applies
(the “Clause C Distribution”) and any Conversion Rate adjustment
required by this Section 4.04(c) with respect thereto shall then be
made, and (2) the Clause A Distribution and Clause B Distribution shall be
deemed to immediately follow the Clause C Distribution and any Conversion Rate
adjustment required by Section 4.04(a) and Section 4.04(b) with
respect thereto shall then be made, except that, if determined by the Company, (I) the
“Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution
shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any
shares of Common Stock included in the Clause A Distribution or Clause B
Distribution shall be deemed not to be “outstanding immediately prior to the
open of business on such Ex-Dividend Date or such effective date” within the
meaning of Section 4.04(a) or “outstanding immediately prior to the
open of business on such Ex-Dividend Date” within the meaning of Section 4.04(b).


 


(d)                                 If the Company
pays any cash dividends or distributions to all or substantially all holders of
Common Stock, other than a regular, quarterly cash dividend that does not
exceed
$             per share
(the “Dividend Threshold Amount”), the Conversion Rate shall be adjusted
based on the following formula:


 


	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  SP0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP0 – C

  	
   

  



 


37

















 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Ex-Dividend Date for
  such dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on the Ex-Dividend Date for
  such dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the Last Reported Sale
  Price of the Common Stock on the Trading Day immediately preceding the
  Ex-Dividend Date for such dividend or distribution; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  =

  	
   

  	
  the amount in cash per
  share the Company distributes to holders of Common Stock in excess of the
  Dividend Threshold Amount.

  



 


provided that if the
dividend or distribution is not a regular quarterly cash dividend, the Dividend
Threshold Amount will be deemed to be zero. The Dividend Threshold Amount is
subject to adjustment in a manner inversely proportional to adjustments to the
Conversion Rate; provided that no adjustment will
be made to the Dividend Threshold Amount for any adjustment to the Conversion
Rate under this Section 4.04(d).


 


In the case of an adjustment
pursuant to this Section 4.04(d), such adjustment shall become effective
immediately after the open of business on the Ex-Dividend Date for the relevant
dividend or distribution. If the portion of the cash so distributed applicable
to one share of the Common Stock is equal to or greater than the Last Reported
Sale Price of a share of Common Stock on the Trading Day immediately preceding
the Ex-Dividend Date for such dividend or distribution, in lieu of the
adjustment set forth above, adequate provision shall be made so that each
Holder of Securities shall have the right to receive on the date on which such
cash dividend or distribution is distributed to holders of Common Stock, for
each $1,000 principal amount of Securities, the amount of cash such Holder
would have received had such Holder owned a number of shares of Common Stock
equal to the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such distribution.


 


(e)                                  If the Company
or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for Common Stock, to the extent that the cash and value of any
other consideration included in the payment per share of Common Stock exceeds
the Last Reported Sale Price per share of Common Stock on the Trading Day next
succeeding the last date on which tenders or exchanges may be made pursuant to
such tender or exchange offer, the Conversion Rate shall be increased based on
the following formula:


 


	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  AC + (SP1 x OS1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0 x SP1

  	
   

  



 


where,


 


38

















 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the close of business on the 10th Trading Day
  immediately following, and including, the Trading Day next succeeding the
  date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the close of business on the 10th Trading Day
  immediately following, and including, the Trading Day next succeeding the
  date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AC

  	
   

  	
  =

  	
   

  	
  the aggregate value of all
  cash and any other consideration (as determined by the Board of Directors)
  paid or payable for shares purchased in such tender or exchange offer;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately prior to the date such tender or
  exchange offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS1

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately after the date such tender or exchange
  offer expires (after giving effect to, for the avoidance of doubt, the
  purchase of all shares accepted for purchase or exchange in such tender or
  exchange offer); and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP1

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day
  period commencing on the Trading Day next succeeding the date such tender or
  exchange offer expires.

  



 


The adjustment to the
Conversion Rate under this Section 4.04(e) shall occur as of the
close of business on the tenth Trading Day from, and including, the Trading Day
next succeeding the date such tender or exchange offer expires; provided that
in respect of any conversion within 10 Trading Days immediately following, and
including, the expiration date of any tender or exchange offer, references with
respect to 10 Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the expiration date of such tender or
exchange offer and the Conversion Date in determining the applicable Conversion
Rate.


 


(f)                                    The Company
from time to time may increase the Conversion Rate by any amount for any period
of time of at least 20 Business Days, so long as the increase is irrevocable
during the period and the Board of Directors shall have made a determination
that such increase would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Conversion Rate is increased
pursuant to this Section 4.04(f), the Company shall mail to Holders of
record of the Securities a notice of the increase at least one day prior to the
date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.


 


(g)                                 The Company may
(but shall not be required to) increase the Conversion Rate, in addition to any
adjustments pursuant to Section 4.04(a), 4.04(b), 4.04(c), 4.04(d), 4.04(e) or
4.04(f), if the Board of Directors considers such increase to be advisable to
avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock in connection with a dividend or distribution of shares
(or rights to acquire shares) or similar event.


 


39














 


(h)                                 All
calculations under this Article 4 shall be made by the Company and shall
be made to the nearest one ten-thousandth of a share. No adjustment shall be
required to be made for the Company’s issuance of Common Stock or any
securities convertible into or exchangeable for shares of Common Stock or
rights to purchase shares of Common Stock or such convertible or exchangeable
securities, other than as provided in this Section 4.04 and in Section 4.11
hereof.


 


(i)                                     Whenever the
Conversion Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Conversion Agent an Officer’s Certificate setting
forth the Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Unless and until a Trust
Officer of the Trustee shall have received such Officer’s Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume without inquiry that the last Conversion Rate of
which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to each Holder of the Securities. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.


 


(j)                                     For purposes of
this Section 4.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so
long as the Company does not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock.


 


(k)                                  Notwithstanding
the foregoing, if the application of the foregoing formulas set forth in this Section 4.04
would result in a decrease in the Conversion Rate, no adjustment to the
Conversion Rate shall be made (other than as a result of a share combination).


 


(l)                                     Notwithstanding
anything to the contrary in this Article 4, no adjustment to the
Conversion Rate shall be made:


 


(i)                                     upon the issuance of any
shares of Common Stock pursuant to any present or future plan providing for the
reinvestment of dividends or interest payable on the Company’s securities and
the investment of additional optional amounts in shares of Common Stock under
any plan;


 


(ii)                                  upon the issuance of any
shares of Common Stock or options or rights to purchase those shares pursuant
to any present or future employee, director or consultant benefit plan or
program of or assumed by the Company or any of its Subsidiaries;


 


(iii)                               upon the issuance of any
shares of Common Stock pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security not described in clause (ii) above
and outstanding as of the date the Securities were first issued;


 


(iv)                              for a change in the par
value of the Common Stock; or


 


(v)                                 for accrued and unpaid
interest (including Special Interest), if any, on the Securities.


 


40

















 


(m)                               The Company
shall not be required to make an adjustment in the Conversion Rate unless the
adjustment would require a change of at least 1% in the Conversion Rate.
However, when making payment of the Conversion Price the Company will carry
forward any adjustments that are less than 1% of the Conversion Rate and make such
carried forward adjustment, regardless of whether the aggregate adjustment is
less than 1%, upon any Conversion Date with respect to the Securities.


 


Section 4.05.                             Certain Other
Adjustments.  To the
extent not otherwise covered by Section 4.04, whenever a provision of this
Indenture requires the calculation of Last Reported Sale Prices over a span of
multiple days, the Board of Directors will make appropriate adjustments to such
Last Reported Sale Prices and the Conversion Rate or the amount due upon conversion
to account for any adjustment to the Conversion Rate that becomes effective, or
any event requiring an adjustment to the Conversion Rate where the Ex-Dividend
Date of the event occurs, at any time during the period from which such Last
Reported Sale Prices are to be calculated. 
Any such adjustment in accordance with the provisions of this Section 4.05
shall be determined in good faith by the Board of Directors in order to give
effect to the intent of Section 4.04 and the other provisions of this Article 4
and to avoid unjust or inequitable results.


 


Section 4.06.                             Adjustments
Upon Certain Fundamental Changes.  (a) If a Make-Whole Fundamental Change
occurs and a Holder elects to convert its Securities in connection with such
Make-Whole Fundamental Change, the Company shall, under certain circumstances,
increase the Conversion Rate for the Securities so surrendered for conversion
by a number of additional shares of Common Stock (the “Additional Shares”)
as described below. A conversion of Securities shall be deemed for these
purposes to be “in connection with” such Make-Whole Fundamental Change if the
notice of conversion of the Securities is received by the Conversion Agent
from, and including, the Effective Date of the Make-Whole Fundamental Change up
to, and including, the Business Day immediately prior to the related
Fundamental Change Purchase Date (or, in the case of an event that would have
been a Fundamental Change but for the proviso in clause (2) of the
definition thereof, the 35th calendar day immediately following the Effective
Date of such Make-Whole Fundamental Change).


 


(b)                                 Upon surrender
of Securities for conversion in connection with a Make-Whole Fundamental
Change, the Company shall deliver shares of Common Stock as provided under Section 4.03,
calculated based on the Conversion Rate as adjusted by the Additional Shares;
provided, however, that if, at the effective time of a Make-Whole Fundamental
Change, the Reference Property is comprised entirely of cash, then, for any
conversion of Securities following the Effective Date of such Make-Whole
Fundamental Change, the amounts deliverable by the Company shall be calculated
based solely on the “Stock Price” (as defined below) for the Make-Whole
Fundamental Change and shall be deemed to be an amount equal to the Conversion
Rate (including any adjustment for Additional Shares) multiplied by such Stock
Price. In such event, the amounts deliverable by the Company shall be
determined and paid to holders in cash on the third Business Day following the
Conversion Date.


 


(c)                                  The number of
Additional Shares, if any, by which the Conversion Rate will be increased will
be determined by reference to the table below, based on the date on which the
Make-Whole Fundamental Change occurs or becomes effective (the “Effective
Date”) and the price (the “Stock Price”) paid (or deemed paid) per
share of the Common Stock in the 


 


41

















 


Fundamental
Change.  If the holders of the Common
Stock receive only cash in a Make-Whole Fundamental Change described in
clause (2) of the definition of Fundamental Change, the Stock Price
shall be the cash amount paid per share. 
Otherwise, the Stock Price shall be the average of the Last Reported
Sale Prices of the Common Stock over the ten Trading-Day period ending on, and
including, the Trading Day immediately preceding the Effective Date of the
Make-Whole Fundamental Change.


 


The
following table sets forth the number of additional shares to be received per
$1,000 principal amount of notes for each stock price and effective date set
forth below:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $

  	
   

  	
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          ,        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
          ,        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
          ,        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
          ,        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
          ,        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
          ,        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


The exact Stock Prices and
Effective Dates may not be set forth in the table above, in which case:


 


(i)                                     If the Stock Price is
between two Stock Prices in the table or the Effective Date is between two
Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Stock Prices and the earlier and
later Effective Dates, as applicable, based on a 365-day year.


 


(ii)                                  If the Stock Price is
greater than $       per share (subject to
adjustment in the same manner as the Stock Prices set forth in the column headings
of the table in Schedule A pursuant to subsection (d) below), no
Additional Shares shall be added to the Conversion Rate.


 


(iii)                               If the Stock Price is less
than $       per share (subject to adjustments in
the same manner as the Stock Prices set forth in the column headings of the
table in Schedule A pursuant to subsection (d) below), no Additional
Shares shall be added to the Conversion Rate.


 


Notwithstanding the
foregoing, in no event shall the Conversion Rate exceed
       shares of Common Stock per $1,000
principal amount of Securities, subject to adjustments in the same manner as
the Conversion Rate as set forth in Section 4.04.


 


(d)                                 The Stock
Prices set forth in the column headings of the table above shall be adjusted as
of any date on which the Conversion Rate of the Securities is otherwise
adjusted.  The adjusted Stock Prices
shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate
immediately prior to such adjustment giving rise to the Stock Price adjustment
and the denominator of which is the Conversion Rate as so adjusted. The number
of Additional Shares set forth in such table shall be adjusted in the same
manner as the Conversion Rate as set forth in Section 4.04.


 


42

















 


(e)                                  The Company
shall notify the Holders of Securities of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no
later than five Business Days after such Effective Date.


 


Section 4.07.                             Effect of
Recapitalization, Reclassification, Consolidation, Merger or Sale.


 


(a)                                  If any of the
following events occur:


 


(i)                                     any recapitalization or
reclassification of, or change in, the Common Stock (other than changes
resulting from a subdivision or combination);


 


(ii)                                  a consolidation, merger or
combination involving the Company; or


 


(iii)                               a sale, lease or other
transfer to a third party of all or substantially all of the consolidated
assets of the Company and its Subsidiaries; or


 


(iv)                              any statutory share
exchange;


 


in each case as a result of
which the Common Stock would be converted into, or exchanged for, or would be
reclassified or changed into, stock, other securities, other property or assets
(including cash or any combination thereof) (any such event, a “Merger Event”),
then at the effective time of such Merger Event, the Company or the successor
or purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) providing that
at and after the effective time of such Merger Event, the right to convert a
Security will be changed into a right to convert such Security as set forth in
this Indenture into the kind and amount of shares of stock, other securities or
other property or assets (including cash or any combination thereof) that a
holder of a number of shares of Common Stock equal to the Conversation Rate
prior to such Merger Event would have owned or been entitled to receive (the “Reference
Property”) upon such Merger Event.


 


If, as a result of the
Merger Event, each share of Common Stock is converted into the right to receive
more than a single type of consideration (determined based in part upon any
form of stockholder election), then the Reference Property into which the
Securities will be convertible will be deemed to be the weighted average of the
types and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election.


 


The Company shall not become
a party to any such Merger Event unless its terms are consistent with this Section 4.07.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article 4 in the judgment of the Board of Directors or the board of
directors of the successor Person. If, in the case of any such
recapitalization, reclassification, change, consolidation, merger, combination,
sale, lease, other transfer or statutory share exchange, the Reference Property
receivable thereupon by a holder of Common Stock includes shares of stock,
securities or other property or assets (including cash or any combination
thereof) of a Person other than the successor or purchasing Person, as the case
may be, in such recapitalization, reclassification, 


 


43

















 


change,
consolidation, merger, combination, sale, lease, other transfer or statutory
share exchange, then such supplemental indenture shall also be executed by such
other Person.


 


(b)                                 The Company
shall cause notice of the execution of such supplemental indenture to be mailed
to each Holder, at the address of such Holder as it appears on the register of
the Securities maintained by the Registrar, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture. The above provisions of this Section 4.07
shall similarly apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances. If this Section 4.07 applies
to any Merger Event, Section 4.04 shall not apply.


 


Section 4.08.                             Taxes on Shares
Issued.  The Company will pay any
documentary, stamp or similar issue or transfer tax due on the issue or
delivery of shares of Common Stock on conversion of Securities pursuant hereto;
provided, however, that if such documentary, stamp or similar issue or transfer
tax is due because the Holder of such Securities has requested that shares of
Common Stock be issued in a name other than that of the Holder of the
Securities converted, then such taxes will be paid by the Holder, and the
Company shall not be required to issue or deliver any stock certificate
evidencing such shares unless and until the Holder shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.


 


Section 4.09.                             Reservation of
Shares; Shares to be Fully Paid; Compliance With Governmental Requirements;
Listing of Common Stock.  The
Company shall reserve, out of its authorized but unissued shares or shares held
in treasury, sufficient shares of Common Stock to satisfy conversion of the
Securities from time to time as such Securities are presented for conversion
(assuming that, at the time of the computation of such number of shares or
securities, all such Securities would be converted by a single Holder).


 


The Company covenants that
all shares of Common Stock that may be issued upon conversion of Securities
shall be newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and non-assessable and shall be free from preemptive
rights and free from any tax, lien or charge (other than those created by the
Holder).


 


The Company shall cause any
shares of Common Stock to be issued upon conversion of Securities to be
designated for quotation or listing, subject to notice of issuance, on each
national securities exchange or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.


 


Section 4.10.                             Responsibility
of Trustee.  The Trustee
and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine or calculate the
Conversion Rate, to determine whether any facts exist which may require any
adjustment of the Conversion Rate, or to confirm the accuracy of any such
adjustment when made or the appropriateness of the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of
Common Stock or of any other securities or property that may at any time be
issued or delivered upon the conversion of any Securities; and the Trustee and
the Conversion Agent make no 


 


44

















 


representations
with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Securities for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 4. 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,
including its capacity as Conversion Agent.


 


Section 4.11.                             Notice to Holders
Prior to Certain Actions.  In
case:


 


(a)                                  the Company
shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 4.04;
or


 


(b)                                 the Company
shall authorize the granting to the holders of all or substantially all of its
Common Stock of rights or warrants to subscribe for or purchase any share of
any class or any other rights or warrants that would require an adjustment in
the Conversion Rate pursuant to Section 4.04 or Section 4.12 hereof;
or


 


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


 


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


 


then, in each case (unless
notice of such event is otherwise required pursuant to another provision of
this Indenture), the Company shall cause to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Securities at such Holder’s
address appearing on a list of Holders of Securities, which the Company shall
provide to the Trustee, as promptly as practicable but in any event at least 10
days prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend (or any
other distribution) or rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution or rights or warrants are to be determined, or (y) the
date on which such reclassification, reorganization, consolidation, merger,
sale, lease, transfer, dissolution, liquidation or winding up is expected to
become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, sale, transfer, dissolution, liquidation
or winding up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend (or any other distribution),
reclassification, reorganization, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.


 


45

















 


Section 4.12.                             Stockholder
Rights Plan.  Each share
of Common Stock issued upon conversion of Securities pursuant to this Article 4
shall be entitled to receive the appropriate number of rights, if any, and the
certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any
stockholder rights plan adopted by the Company, as the same may be amended from
time to time. Notwithstanding the foregoing, if prior to any conversion such
rights have separated from the shares of Common Stock in accordance with the
provisions of the applicable stockholder rights agreement, the Conversion Rate
shall be adjusted at the time of separation as if the Company had distributed
to all holders of the Common Stock, shares of the Company’s capital stock,
evidences of indebtedness, assets, property, rights or warrants as described in
Section 4.04(c) above, subject to readjustment in the event of the
expiration, termination or redemption of such rights.


 


ARTICLE 5


 


COVENANTS


 


Section 5.01.                             Payment of
Securities.


 


(a)                                  The Company
shall duly and punctually pay the principal of and interest (including Special
Interest, if any) on the Securities in accordance with the terms of the
Securities and this Indenture, and will duly comply with all the other terms,
agreements and conditions contained in, or made in this Indenture for the
benefit of, the Holders.


 


(b)                                 A payment of
principal or interest (including Special Interest, if any) shall be considered
paid on the date it is due if the Paying Agent (other than the Company) (or if
the Company is the Paying Agent, the segregated account or separate trust fund
maintained by the Company pursuant to Section 2.04) holds by 10:00 a.m.,
New York City time, on that date money, deposited by or on behalf of the
Company sufficient to make the payment. 
Accrued and unpaid interest (including Special Interest), if any, on any
Security that is payable (whether or not punctually paid or duly provided for)
on any Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for such
purpose.  The Company shall, to the fullest
extent permitted by law, pay interest in immediately available funds on overdue
principal and interest at the annual rate borne by the Securities compounded
semiannually, which interest shall accrue from the date such overdue amount was
originally due to the day preceding the date payment of such amount, including
interest thereon, has been made or duly provided for.  All such interest shall be payable on demand.


 


(c)                                  Payment of the
principal of and interest (including Special Interest), if any, on the
Securities shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York (which shall
initially be the Corporate Trust Office of the Trustee) in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the option of the Company payment of
interest (including Special Interest) on any Certificated 


 


46

















 


Securities having an aggregate principal
amount of $5,000,000 or less may be made by check mailed to the address of the
Person entitled thereto as such address appears in the Register; provided further that a Holder of a Certificated Security
having an aggregate principal amount of more than $5,000,000 will be paid by
wire transfer in immediately available funds at the election of such Holder if
such Holder has provided wire transfer instructions to the Trustee at least 10
Business Days prior to the payment date. 
Any wire transfer instructions received by the Trustee will remain in
effect until revoked by the Holder.  In
the case of a permanent Global Security, interest (including Special Interest),
if any, payable on any applicable payment date will be paid to the Depositary,
with respect to that portion of such permanent Global Security held for its
account by Cede & Co. for the purpose of permitting such party to
credit the interest received by it in respect of such permanent Global Security
to the accounts of the beneficial owners thereof.


 


Section 5.02.                             Reports by
Company.


 


(a)                                  Whether or not
the Company and the Subsidiary Guarantors are required to file reports with the
SEC, the Company and the Subsidiary Guarantors shall deliver to the Trustee
copies of all annual reports, quarterly reports and other documents that they
would be required to file with the SEC pursuant to Sections 13 or 15(d) of
the Exchange Act, within 15 days after such reports and other documents would
be required to be filed with the SEC (giving effect to any grace period
provided by Rule 12b-25 under the Exchange Act).


 


(b)                                 The Company
intends to file its reports referred to in Section 5.02(a) hereof
with the SEC in electronic form pursuant to Regulation S-T of the SEC using the
SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system.  The Company shall notify the Trustee in the
manner prescribed herein of each such filing. 
The Trustee will be directed to access the EDGAR system for purposes of
retrieving the reports so filed. 
Compliance with the foregoing shall constitute delivery by the Company
of such reports to the Trustee in compliance with the provisions of Section 5.02(a)
hereof.  The Trustee shall have no duty
to search for or obtain any electronic or other filings that the Company makes
with the SEC, regardless of whether such filings are periodic, supplemental or
otherwise.


 


(c)                                  Delivery of
such reports and documents to the Trustee is for informational purposes only
and the Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the compliance by the Company and the Subsidiary Guarantors with
any of their respective covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates).


 


Section 5.03.                             Compliance
Certificates.


 


The Company and each Subsidiary
Guarantor shall deliver to the Trustee, within one hundred twenty (120) days
after the end of each fiscal year of the Company (beginning with the fiscal
year ending
                    ,
20    ), an Officer’s Certificate as to the signer’s
knowledge of the Company’s or such Subsidiary Guarantor’s compliance with all
conditions and covenants on its part contained in this Indenture and stating whether
or not the signer knows of any Default or Event of Default.  If such signer knows of such a Default or
Event of Default, the Officer’s Certificate shall describe the Default or Event
of Default and the efforts to remedy the same. 
For the purposes of this Section 5.03, compliance shall be 


 


47

















 


determined
without regard to any grace period or requirement of notice provided pursuant
to the terms of this Indenture.  Such
certificates need not comply with Section 12.04 of this Indenture.


 


Section 5.04.                             Further
Instruments and Acts.


 


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


 


Section 5.05.                             Maintenance of
Corporate Existence.


 


Subject to Article 6,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.


 


Section 5.06.                             Issuances of
Subsidiary Guarantees.


 


The Company shall cause each
Subsidiary of the Company that Guarantees Indebtedness of the Company under any
outstanding debt securities of the Company or any of the Company’s obligations
under any credit facility to execute and deliver a supplemental indenture to
this Indenture providing for a Note Guarantee by such Subsidiary pursuant to Article Eleven.


 


Section 5.07.                             Stay, Extension
And Usury Laws.


 


The Company and the
Subsidiary Guarantors covenant (to the extent that they may lawfully do so)
that they shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or
other law which would prohibit or forgive the Company or a Guarantor from
paying all or any portion of the principal of or accrued but unpaid interest
(including Special Interest, if any) on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture, and the Company and the
Guarantors (to the extent they may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenant that they will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.


 


Section 5.08.                             Payment of
Special Interest.


 


If Special Interest is
payable by the Company pursuant to the terms of the Securities and this
Indenture, the Company shall deliver to the Trustee an Officer’s Certificate to
that effect stating (i) the amount of such Special Interest that is
payable, (ii) the reason why such Special Interest is payable and (iii) the
date on which such Special Interest is payable. 
Unless and until a Trust Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no such Special
Interest is payable.  If the Company has
paid Special Interest directly to the Persons entitled to such Special
Interest, the Company shall deliver to the Trustee a certificate setting forth
the particulars of such payment.


 


48














 


Section 5.09.                             Maintenance of Office or
Agency.


 


The Company shall maintain an office or
agency where Securities may be presented or surrendered for payment.  The Company also will maintain an office or
agency where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. 
The office of the Trustee, at its Corporate Trust Office, will be such
office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes.  The Company will give prompt written notice
to the Trustee of the location and any change in the location of any such
offices or agencies.  If at any time the
Company shall fail to maintain any such required offices or agencies or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the office of the
Trustee and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.


 


The Company may from time to time designate
one or more other offices or agencies (in or outside of The City of New York)
where the Securities may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and any change in the
location of any such office or agency.


 


ARTICLE 6


 


CONSOLIDATION; MERGER; SALE OF ASSETS


 


Section 6.01.                             Company or Subsidiary
Guarantors May Consolidate, Etc., Only on Certain Terms.


 


(a)                                  The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into it
unless, unless:


 


(1)                                  it shall be the
continuing Person, or the Person (if other than it) formed by such
consolidation or into which it is merged or that acquired or leased such
property and assets (the “Surviving Person”), shall be a corporation
organized and validly existing under the laws of the United States of America
or any jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the Company’s
obligations under this Indenture and the Securities;


 


(2)                                  immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;


 


(3)                                  it delivers to
the Trustee an Officer’s Certificate and Opinion of Counsel, in each case
stating that such consolidation, merger or transfer and such supplemental
indenture complies with this Section 6.01 and that all conditions
precedent provided for herein relating to such transaction have been complied
with; and


 


49

















 


(4)                                  each Subsidiary
Guarantor, unless such Subsidiary Guarantor is the Person with which the
Company has entered into a transaction under this Section 6.01, shall have
by amendment to its Note Guarantee confirmed that its Note Guarantee shall
apply to the obligations of the Company or the Surviving Person in accordance
with the Securities and this Indenture.


 


Each Subsidiary Guarantor (other than any Subsidiary Guarantor whose
Note Guarantee is to be released in accordance with the terms of its Note
Guarantee and this Indenture, in connection with the sale, exchange or transfer
to any Person (other than an Affiliate of the Company) of all the Capital Stock
of such Subsidiary Guarantor) will not, and the Company will not cause or
permit any Subsidiary Guarantor to, consolidate with or merge with or into any
Person other than the Company or any other Subsidiary Guarantor unless:


 


(1)                                  such Subsidiary
Guarantor shall be the continuing person, or the person (if other than such
Subsidiary Guarantor) formed by such consolidation or into which it is merged
or that acquired or leased such property and assets (the “Surviving
Guarantor”), shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof, and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of such Subsidiary Guarantor’s obligations under this Indenture
and its Note Guarantee; and


 


(2)                                  immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing.


 


The Surviving Guarantor
shall succeed to, and, except in the case of a lease, be substituted for, such
Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s Note
Guarantee.


 


Section 6.02.                             Successor Substituted.


 


Upon any consolidation or merger, or any
sale, conveyance, transfer, lease or other disposition of all or substantially
all of the property and assets of the Company or any Subsidiary Guarantor in
accordance with Section 6.01 of this Indenture, the successor Person
formed by such consolidation or into which the Company or any Subsidiary
Guarantor is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to and be substituted for, and may exercise
every right and power of, the Company or such Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as
the Company or such Subsidiary Guarantor herein; provided that the Company
shall not be released from its obligation to pay the principal of, premium, if
any, or interest on the Securities and such Subsidiary Guarantor shall not be
released from its Note Guarantee in the case of a lease of all or substantially
all of its property and assets.


 


50

















 


ARTICLE 7


 


DEFAULT AND REMEDIES


 


Section 7.01.                             Events of Default.


 


(a)                                  An “Event of Default”
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(1)                                  a default in
the payment of the principal amount, Redemption Price, Fundamental Change
Purchase Price with respect to any Security when such payment becomes due and
payable; or


 


(2)                                  a default for
30 days in the payment of any interest (including Special Interest, if any) on
the Securities; or


 


(3)                                  a failure by
the Company to comply with its obligation to convert the Securities in
accordance with the Indenture upon exercise of any Holder’s conversion rights;
or


 


(4)                                  failure by the
Company to provide an Fundamental Change Company Notice within the time
required to provide such notice as set forth in Section 3.08(b) hereof;
or


 


(5)                                  failure to
redeem any Securities called for redemption after the Company has exercised its
option to redeem such Securities; or


 


(6)                                  failure to
purchase all or any part of the Securities in accordance with Sections 3.08
hereof; or


 


(7)                                  failure to
perform or observe any other covenant or agreement in this Indenture with
respect to the Securities (other than a covenant or agreement in respect of
which the Company’s non-compliance would otherwise be an event of default) and
such default or breach continues for a period of 60 consecutive days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the Holder of 25% or more in aggregate principal amount of the Securities
then Outstanding; or


 


(8)                                  there occurs
with respect to any issue or issues of Indebtedness of the Company, any
Subsidiary Guarantor or any Significant Subsidiary having an outstanding
principal amount of $75 million or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (A) an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its stated maturity
and such Indebtedness has not been discharged in full or such acceleration has
not been rescinded or annulled within 30 days of such acceleration and/or (B) the
failure to make a principal payment at the final (but not any 


 


51

















 


interim)
fixed maturity and such defaulted payment shall not have been made, waived or
extended within 30 days of such payment default; or


 


(9)                                  any final
judgment or order (not covered by insurance) for the payment of money in excess
of $75 million in the aggregate for all such final judgments or orders against
all such Persons (treating any deductibles, self-insurance or retention as not
so covered) shall be rendered against the Company, any Subsidiary Guarantor or
any Significant Subsidiary and shall not be paid or discharged, and there shall
be any period of 60 consecutive days following entry of the final judgment
or order that causes the aggregate amount for all such final judgments or
orders outstanding and not paid or discharged against all such Persons to
exceed $75 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or


 


(10)                          the Company, any Subsidiary
Guarantor or any Significant Subsidiary of the Company pursuant to or within
the meaning of any Bankruptcy Law:


 


(A)                               commences a
voluntary insolvency proceeding;


 


(B)                                 consents to the
entry of an order for relief against it in an involuntary insolvency proceeding
or consents to its dissolution or winding-up;


 


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


 


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


 


or takes any
comparable action under any foreign laws relating to insolvency; provided, however,
that the liquidation of any Subsidiary into another Subsidiary, other than as
part of a credit reorganization, shall not constitute an Event of Default under
this Section 7.01(a)(10); or


 


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


 


(A)                              is for relief
against the Company, any Subsidiary Guarantor or any Significant Subsidiary of
the Company in an involuntary insolvency proceeding;


 


(B)                                appoints a
custodian of the Company, any Subsidiary Guarantor or any Significant
Subsidiary of the Company for any substantial part of their property;


 


(C)                                orders the
winding-up, liquidation or dissolution of the Company, any Subsidiary Guarantor
or any Significant Subsidiary of the Company;


 


(D)                               orders the
presentation of any plan or arrangement, compromise or reorganization of the
Company, any Subsidiary Guarantor or any Significant Subsidiary of the Company;
or


 


52

















 


(E)                                 grants any
similar relief under any foreign laws;


 


and in each
such case the order or decree remains unstayed and in effect for 90 days; or


 


(12)                          any Subsidiary Guarantor
repudiates its obligations under its Note Guarantee or, except as permitted by
this Indenture, any Note Guarantee is determined to be unenforceable or invalid
or shall for any reason cease to be in full force and effect.


 


(b)                                 Notwithstanding Section 7.01(a) no
Event of Default under clause (7) of Section 7.01(a) shall
occur until the Trustee notifies the Company in writing, or the Holders of at
least 25% in aggregate principal amount of the Securities then Outstanding
notify the Company and the Trustee in writing, of the Default (a “Notice of
Default”), and the Company does not cure the Default within the time specified
in clause (7) of Section 7.01(a), or obtain a waiver, after
receipt of such notice.  A notice given
pursuant to this Section 7.01 shall be given by registered or certified
mail, must specify the Default, demand that it be remedied and state that the
notice is a Notice of Default.  When any
Default under this Section 7.01 is cured, it ceases.


 


(c)                                  The Company will deliver to
the Trustee, within 30 days after becoming aware of the occurrence of a Default
or Event of Default, written notice thereof.


 


Section 7.02.                             Acceleration; Special
Interest.


 


If an Event of Default
(other than an Event of Default specified in clause (10) or (11) of Section 7.01(a))
shall occur and be continuing with respect to this Indenture, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding may declare all unpaid principal of and accrued
interest (including Special Interest), if any, on all Securities through the
date of such declaration to be due and payable, by a notice in writing to the
Company (and to the Trustee if given by the Holders of the Securities).  Upon any such declaration, such principal and
interest (including Special Interest), if any, shall become due and payable immediately.  If an Event of Default specified in
clause (10) or (11) of Section 7.01(a) occurs and is
continuing, then all the Securities shall ipso facto become and be due and
payable immediately in an amount equal to the principal amount of the
Securities, together with accrued and unpaid interest (including Special
Interest), if any, to the date the Securities become due and payable, without
any declaration or other act on the part of the Trustee or any Holder.  Thereupon, the Trustee may, at its discretion,
proceed to protect and enforce the rights of the Holders of the Securities by
appropriate judicial proceedings.


 


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


 


53

















 


(a)                                  the Company has paid or
deposited with the Trustee a sum sufficient to pay


 


(1)                                  all amounts
owing to the Trustee under Section 8.07, including all sums paid or
advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,


 


(2)                                  all overdue
interest (including Special Interest), if any, on all Outstanding Securities,


 


(3)                                  the principal
of any Outstanding Securities which have become due otherwise than by such
declaration of acceleration and interest (including Special Interest) thereon
at the rate borne by the Securities, and


 


(4)                                  to the extent
that payment of such interest is lawful, interest upon overdue interest at the
rate borne by the Securities;


 


(b)                                 the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and


 


(c)                                  all Defaults or Events of
Default, other than the non-payment of principal of and interest on the
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 7.13.  No such rescission shall affect any
subsequent Default or impair any right consequent thereon.


 


Notwithstanding the foregoing, the sole
remedy for an Event of Default relating to the failure by the Company to comply
with the provisions of Section 5.02 of this Indenture and for any failure
to comply with Section 314(a)(1) of the Trust Indenture Act shall,
for the first 180 days after the occurrence of such an Event of Default,
consist exclusively of the right to receive special interest (“Special
Interest”) on the Securities at an annual rate equal to 0.50% of the
principal amount of the Securities.  Such
Special Interest shall be paid semi-annually in arrears, with the first
semi-annual payment due on the first Interest Payment Date following the date
on which such Special Interest began to accrue on the Securities.  Special Interest shall accrue on all
Outstanding Securities from and including the date on which an Event of Default
relating to a failure to comply with the provisions of Section 5.02 or
failure to comply with Section 314(a)(1) of the Trust Indenture Act
shall first occur to but not including the 180th day thereafter (or such
earlier date on which such Event of Default shall have been cured or waived by
Holders of a majority in principal amount of the Outstanding Securities).  On such 180th day (or earlier, if the Event
of Default relating to the failure to comply with Section 5.02 and failure
to comply with Section 314(a)(1) of the Trust Indenture Act is cured
or waived prior to such 180th day), such Special Interest shall cease to accrue
and, if the Event of Default relating to the failure to comply with Section 5.02
and failure to comply with Section 314(a)(1) of the Trust Indenture
Act shall not have been cured or waived prior to such 180th day, the Securities
shall be subject to acceleration as provided in this Section 7.02.  The provisions of this paragraph shall not
affect the rights of Holders in the event of the occurrence of any other Event
of Default.  In the event the Company
shall not elect to pay Special Interest upon an Event of Default resulting from
the failure of the Company to comply with the provisions of Section 5.02
and for any 


 


54

















 


failure by it to comply with
Section 314(a)(1) of the Trust Indenture Act, the Securities shall be
subject to acceleration as provided above in this Section 7.02.


 


If the Company shall elect to pay Special Interest
in connection with an Event of Default relating to its failure to comply with
the requirements of Section 5.02 and for any failure by it to comply with Section 314(a)(1) of
the Trust Indenture Act, (1) the Company shall notify all Holders and the Trustee
and Paying Agent of such election on or before the close of business on the
Business Day immediately preceding the day on which such Event of Default shall
first occur, and (2) all references herein to interest accrued or payable
as of any date shall include any Special Interest accrued or payable as of such
date as provided in this Section 7.02.


 


Section 7.03.                             Collection of Indebtedness
and Suits for Enforcement by Trustee.


 


The Company and each Subsidiary Guarantor
covenants that if:


 


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


 


(b)                                 default is made in the
payment of the principal of any Security at the Stated Maturity thereof,


 


the Company and such
Subsidiary Guarantor will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest (including Special
Interest, if any), with interest upon the overdue principal and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


 


If the Company or any Subsidiary Guarantor,
as the case may be, fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any Subsidiary Guarantor or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, wherever situated.


 


If an Event of Default occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders under this Indenture or any Guarantee
by such appropriate private or judicial proceedings as the Trustee shall deem
most effectual to protect and enforce such rights of whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy,
subject however to Section 7.12.  No
recovery of any such judgment upon any property of the Company or any Guarantor
shall affect or impair any rights, powers or remedies of the Trustee or the
Holders.


 


55

















 


Section 7.04.                             Trustee May File Proofs
of Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,


 


(a)                                  to file and prove a claim
for the whole amount of principal and interest (including Special Interest, if
any) owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and


 


(b)                                 to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or 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 the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.07.


 


Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


Section 7.05.                             Trustee May Enforce
Claims Without Possession of Securities.


 


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


 


Section 7.06.                             Application of Money
Collected.


 


Any money collected by the Trustee pursuant
to this Article 7 or otherwise on behalf of the Holders or the Trustee
pursuant to this Article 7 or through any proceeding or any arrangement or
restructuring in anticipation or in lieu of any proceeding contemplated by this
Article 7 and any money or other property distributable in respect of the
Company’s obligations 


 


56

















 


under this Indenture after
an Event of Default shall be applied, subject to applicable law, in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST: 
To the payment of all amounts due the Trustee (or any predecessor
trustee) under Section 8.07;


 


SECOND: 
To the payment of the amounts then due and unpaid upon the Securities
for principal and interest (including Special Interest, if any), in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest (including Special Interest,
if any); and


 


THIRD: 
The balance, if any, to the Person or Persons entitled thereto,
including the Company, provided that all sums due and owing to the Holders and
the Trustee have been paid in full as required by this Indenture.


 


Section 7.07.                             Limitation on Suits.


 


Subject to Section 7.08, no Holder of
any Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Securities, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless


 


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


 


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


 


(c)                                  such Holder or Holders have
offered to the Trustee security or indemnity satisfactory to the Trustee against
any loss, liability or expense (including fees and expenses of its counsel) to
be incurred in compliance with such request;


 


(d)                                 the Trustee has failed to
institute the proceeding and has not received direction inconsistent with the
original request from the Holders of a majority in principal amount of the
Outstanding Securities within 60 days after the original request;


 


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


 


57

















 


Section 7.08.                             Unconditional Right of
Holders to Receive Payment and to Convert.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of the
principal amount, accrued and unpaid interest, if any, Redemption Price,
Fundamental Change Purchase Price or Special Interest, if any, in respect of
the Securities held by such Holder, on or after the respective due dates
expressed in the Securities and this Indenture (whether upon repurchase or
otherwise), and to convert such Security in accordance with Article 4, and
to bring suit for the enforcement of any such payment on or after such
respective due dates or for the right to convert in accordance with Article 4,
is absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.


 


Section 7.09.                             Restoration of Rights and
Remedies.


 


If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture or any
Guarantee 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 the Company, any Guarantor, any other obligor on the
Securities, the Trustee and the Holders shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.


 


Section 7.10.                             Rights and Remedies
Cumulative.


 


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 7.11.                             Delay or Omission Not Waiver.


 


No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.  Every right and remedy given by this Article 7
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.


 


58














 


Section 7.12.                             Control by Holders.


 


The Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided that:


 


(a)                                  such direction shall not be
in conflict with any rule of law or with this Indenture, expose the
Trustee to personal liability or expenses for which the Trustee has not
received adequate indemnity as determined by it in good faith or be unduly
prejudicial to Holders not joining therein; and


 


(b)                                 subject to the provisions of
Section 315 of the TIA, the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


 


Section 7.13.                             Waiver of Past Defaults.


 


Subject to Section 7.08, the Holders of
a majority in aggregate principal amount of the Securities then Outstanding by
notice to the Trustee may waive an existing Default or Event of Default and its
consequences, except an uncured Default or Event of Default in the payment of
the principal of or any accrued but unpaid interest (including Special
Interest) on any Security, an uncured failure by the Company to convert any
Securities into Common Stock and cash, as applicable, or any Default or Event
of Default in respect of any provision of this Indenture or the Securities
which, under Section 10.02, cannot be modified or amended without the
consent of the Holder of each Security affected.  When a Default or Event of Default is waived,
it is cured and ceases to exist.


 


Section 7.14.                             Undertaking for Costs.


 


All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or interest (including Special
Interest, if any) on, any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of purchase pursuant to Article 3
hereof, on the Fundamental Change Purchase Date).


 


Section 7.15.                             Remedies Subject to
Applicable Law.


 


All rights, remedies and powers provided by
this Article 7 may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law in the premises, and
all the provisions of this Indenture are intended to be subject to all
applicable mandatory 


 


59

















 


provisions of law which may
be controlling in the premises and to be limited to the extent necessary so
that they will not render this Indenture invalid, unenforceable or not entitled
to be recorded, registered or filed under the provisions of any applicable law.


 


ARTICLE 8


 


TRUSTEE


 


Section 8.01.                             Duties of Trustee.


 


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


 


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


 


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


 


(2)                                  in the absence
of bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture.  However,
in the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


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


 


(1)                                  this
clause (c) does not limit the effect of clauses (b) or (d) of
this Section 8.01;


 


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


 


(3)                                  the Trustee shall
not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction of the Holders of a majority in principal
amount of Outstanding Securities 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;


 


60

















 


(d)                                 No provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;


 


(e)                                  Whether or not therein
expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to clauses (a), (b), (c), (d) and (f) of
this Section 8.01; and


 


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


 


Section 8.02.                             Notice of Default.


 


Within 90 days after the occurrence of any
Default, the Trustee shall transmit by mail to all Holders and any other
Persons entitled to receive reports pursuant to Section 313(c) of the
TIA, as their names and addresses appear in the Security Register, notice of
such Default hereunder known to the Trustee, unless such Default shall have
been cured or waived; 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 and so long as a trust committee of
Trust Officers of the Trustee in good faith determines that the withholding of
such notice is in the interest of the Holders.


 


Section 8.03.                             Certain Rights of Trustee.


 


Subject to the provisions of Section 8.01
hereof :


 


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


 


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


 


(c)                                  the Trustee may consult with
counsel of its selection and any 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;


 


(d)                                 the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity 


 


61

















 


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


 


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


 


(f)                                    the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may deem fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;


 


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


 


(h)                                 the Trustee shall not be
charged with knowledge of any Default or Event of Default with respect to the
Securities unless either (i) a Trust Officer of the Trustee shall have
actual knowledge of such Default or Event of Default or (ii) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Company, any Subsidiary Guarantor or by any Holder of Securities;


 


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


 


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


 


(k)                                  the permissive rights of the
Trustee enumerated herein shall not be construed as duties of the Trustee;


 


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


 


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(m)                               the Trustee may employ or
retain such counsel, accountants, appraisers or other experts or advisers as it
may reasonably require for the purpose of determining and discharging its
rights and duties hereunder and shall not be responsible for any misconduct or
negligence on the part of any of them selected by the Trustee using due care;


 


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


 


the Trustee shall not be
responsible or liable for any failure or delay in the performance of its
obligations under this Indenture arising out of or caused, directly or indirectly,
by circumstances beyond its reasonable control, including, without limitation,
acts of God, earthquakes, fire, flood, terrorism, wars and other military
disturbances, sabotage, epidemics, riots, interruptions, losses or malfunctions
of utilities, computers (hardware or software) or communications services,
labor disputes, acts of civil or military authorities and governmental action.


 


Section 8.04.                             Trustee Not Responsible for
Recitals, Dispositions of Securities or Application of Proceeds Thereof.


 


The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company and the Subsidiary Guarantors, and the Trustee
assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.


 


Section 8.05.                             Trustee and Agents May Hold
Securities; Collections; etc.


 


The Trustee, any Paying Agent, Registrar,
Conversion Agent or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities, with the same
rights it would have if it were not the Trustee, Paying Agent, Registrar,
Conversion Agent or such other agent and, subject to TIA Sections 310 and
311, may otherwise deal with the Company or any Subsidiary Guarantor and
receive, collect, hold and retain collections from the Company or any
Subsidiary Guarantor with the same rights it would have if it were not the
Trustee, Paying Agent, Registrar, Conversion Agent or such other agent.


 


Section 8.06.                             Money Held in Trust.


 


All moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law.


 


Section 8.07.                             Compensation and
Indemnification of Trustee and Its Prior Claim.


 


The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the parties shall agree in writing from time to time for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Company 


 


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covenants and agrees to pay
or reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence, bad faith or willful misconduct.  The Company and each Subsidiary Guarantor,
jointly and severally, also covenant and agree to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any claim, loss,
liability, tax, assessment or other governmental charge (other than taxes
applicable to the Trustee’s compensation hereunder) or expense incurred without
negligence or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including enforcement of this Section 8.07 and
also including any liability which the Trustee may incur as a result of failure
to withhold, pay or report any tax, assessment or other governmental charge,
and the costs and expenses of defending itself against or investigating any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.  The
obligations of the Company under this Section 8.07 to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for reasonable expenses, disbursements and
advances shall constitute an additional obligation hereunder and, together with
the lien referred in the next sentence, shall survive the satisfaction and discharge,
and termination for any reason, of this Indenture and the resignation or
removal of the Trustee and each predecessor Trustee.  To secure the Company’s obligations in this Section 8.07,
the Trustee shall have a lien prior to the Securities on all money and property
held or collected by the Trustee, other than money or property held in trust
for the payment of principal of or interest on particular Securities.


 


“Trustee” for purposes of this Section shall
include any predecessor Trustee; provided, however, that the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.


 


Without prejudice to its other rights
hereunder, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 7.01(a)(7) or Section 7.01(a)(8),
the expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.


 


Section 8.08.                             Conflicting Interests.


 


The Trustee shall comply with the provisions
of Section 310(b) of the TIA provided, however,
that there shall be excluded from the operation of Section 310(b)(1) of
the TIA any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA §310(b)(1) are
met.


 


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Section 8.09.                             Trustee Eligibility.


 


There shall at all times be a Trustee
hereunder which shall be eligible to act as trustee under TIA Section 310(a) and
which shall have a combined capital and surplus of at least $50,000,000, to the
extent there is an institution eligible and willing to serve.  If the Trustee does not have a Corporate
Trust Office in The City of New York, the Trustee may appoint an agent in The
City of New York reasonably acceptable to the Company to conduct any activities
which the Trustee may be required under this Indenture to conduct in The City
of New York.  If such Trustee publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 8.09, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.  If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section 8.09,
the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article 8.


 


Section 8.10.                             Resignation and Removal;
Appointment of Successor Trustee.


 


(a)                                  No resignation or removal of
the Trustee and no appointment of a successor trustee pursuant to this Article 8
shall become effective until the acceptance of appointment by the successor
trustee under Section 8.11.


 


(b)                                 The Trustee, or any trustee
or trustees hereafter appointed, may at any time resign by giving written
notice thereof to the Company.  Such
resignation shall take effect upon the appointment of a successor Trustee and
the acceptance of such appointment by such successor Trustee.  If the instrument of acceptance by a
successor Trustee required by Section 8.11 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation or
of any removal of the Trustee as hereinafter provided, the resigning or removed
Trustee may at the Company’s expense petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities.


 


(c)                                  The Trustee may be removed
at any time for any cause or for no cause by an Act of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.


 


(d)                                 If at any time:


 


(1)                                  the Trustee
shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months,


 


(2)                                  the Trustee
shall cease to be eligible under Section 8.09 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or


 


(3)                                  the Trustee
shall become incapable of acting or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed or 


 


65

















 


any
public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation,


 


then, in any case, (i) the Company may
remove the Trustee, or (ii) subject to Section 7.14, the Holder of
any Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee.  Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.


 


(e)                                  If the Trustee shall be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, the Company shall promptly appoint a successor
trustee and shall comply with the applicable requirements of Section 8.11.  If, within 60 days after such removal or
incapability, or the occurrence of such vacancy, the Company has not appointed
a successor Trustee, a successor trustee shall be appointed by the Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee.  Such successor trustee so appointed shall
forthwith upon its acceptance of such appointment become the successor
trustee.  If no successor trustee shall
have been so appointed by the Company or the Holders of the Securities and
accepted appointment in the manner hereinafter provided, the Trustee or the
Holder of any Security who has been a bona fide Holder for at least six months
may, subject to Section 7.14, on behalf of himself and all others
similarly situated, petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor trustee.


 


(f)                                    The Company shall give
notice of each resignation and each removal of the Trustee and each appointment
of a successor trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Securities as their names and
addresses appear in the register of the Registrar.  Each notice shall include the name of the
successor trustee and the address of its Corporate Trust Office or agent
hereunder.


 


Section 8.11.                             Acceptance of Appointment by
Successor.


 


(a)                                  Every successor trustee
appointed hereunder shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee as if originally named as Trustee hereunder; but, nevertheless, on the
written request of the Company or the successor trustee, upon payment of its
charges pursuant to Section 8.07 then unpaid, such retiring Trustee shall
pay over to the successor trustee all moneys at the time held by it hereunder,
subject nevertheless to its lien provided for in Section 8.07, and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, trusts and duties. 
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 and powers.


 


(b)                                 No successor trustee with
respect to the Securities shall accept appointment as provided in this Section 8.11
unless at the time of such acceptance such successor trustee shall be 


 


66

















 


eligible to act as trustee under the provisions of TIA Section 310(a) and
this Article 8 and shall have a combined capital and surplus of at least
$50,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 8.09.


 


(c)                                  Upon acceptance of appointment
by any successor trustee as provided in this Section 8.11, the Company
shall give notice thereof to the Holders of the Securities, by mailing such
notice to such Holders at their addresses as they shall appear on the Security
Register.  If the acceptance of
appointment is substantially contemporaneous with the appointment, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 8.10.  If the
Company fails to give such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.


 


Section 8.12.                             Merger, Conversion,
Consolidation or Succession to Business.


 


Any Person into which the Trustee may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture) shall
be the successor of the Trustee hereunder, provided that
such Person shall be eligible under TIA Section 310(a) and this Article 8
and shall have a combined capital and surplus of at least $50,000,000 and have
a Corporate Trust Office or an agent selected in accordance with Section 8.09,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.


 


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


 


Section 8.13.                             Preferential Collection of
Claims Against Company.


 


If and when the Trustee shall be or become a
creditor of the Company (or other obligor under the Securities), the Trustee
shall be subject to the provisions of the TIA regarding the collection of
claims against the Company (or any such other obligor).  A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated
therein.


 


Section 8.14.                             Reports By Trustee.


 


(a)                                  Within 60 days after May 15
of each year commencing with the first May 15 after the issuance of
Securities, the Trustee, if so required under the TIA, shall transmit by mail
to all Holders, in the manner and to the extent provided in TIA Section 313(c),
a brief report dated as 


 


67

















 


of such May 15 in accordance with and with respect to the matters
required by TIA Section 313(a).  The
Trustee shall also transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), a brief report in accordance with
and with respect to the matters required by TIA Section 313(b)(2).


 


(b)                                 A copy of each report
transmitted to Holders pursuant to this Section 8.14 shall, at the time of
such transmission, be mailed to the Company and filed with each national
securities exchange, if any, upon which the Securities are listed and also with
the SEC.  The Company will notify the
Trustee promptly if the Securities are listed on any national securities
exchange and of any delisting thereof.


 


ARTICLE 9


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 9.01.                             Satisfaction and Discharge
of Indenture.


 


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


 


(1)                                all Securities theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08
and (ii) Securities for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company as provided in Section 2.04)
have been delivered to the Trustee for cancellation; or


 


(2)                                all such Securities not
theretofore delivered to the Trustee for cancellation have become due and
payable, whether on the Final Maturity Date, any Redemption Date or a
Fundamental Change Purchase Date, upon conversion or otherwise,


 


provided, that


 


(i)                                      the Company has
deposited with the Trustee, a Paying Agent (other than the Company or any of
its Affiliates) or a Conversion Agent, if applicable, immediately available
funds and/or shares of Common Stock, if applicable, in trust for the purpose of
and in an amount sufficient to pay and discharge all indebtedness and
obligations related to such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest (including Special Interest, if
any) to the date of such deposit and/or for the payment of amounts due upon
conversion;


 


(ii)                                   the Company has
paid or caused to be paid all other sums payable hereunder by the Company; and


 


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(iii)                                the Company has
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein relating to the satisfaction
and discharge of this Indenture have been complied with.


 


(b)                               Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to clause (2) of Section 9.01(a),
the provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.13 and
5.01 and this Article 9 shall survive until the Securities have been paid
in full.


 


Section 9.02.                             Application of Trust Money.


 


Subject to the provisions of the last
paragraph of Section 2.04, all United States dollars deposited with the
Trustee pursuant to Section 9.01 shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Persons entitled thereto, of the principal of and interest
(including the Company acting as its own Paying Agent) on, the Securities for
whose payment such United States dollars have been deposited with the Trustee.


 


Section 9.03.                             Reinstatement.


 


If the Trustee, any Paying Agent or any
Conversion Agent is unable to apply any money in accordance with Section 9.02
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, then the Company’s obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee, such Paying Agent
or such Conversion Agent is permitted to apply all such money in accordance
with Section 9.02; provided, however, that if the Company has made any payment of the
principal of or interest (including Special Interest, if any) 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 any such
payment from the money held by the Trustee, such Paying Agent or such
Conversion Agent.


 


ARTICLE 10


 


AMENDMENTS; SUPPLEMENTS AND WAIVERS


 


Section 10.01.                       Without Consent
of Holders.


 


(a)                                  The Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture or the
Securities without notice to or consent of any Holder of a Security for the purpose
of:


 


(1)                                  evidencing the
succession of another corporation to the Company or any Subsidiary Guarantor
and the assumption by that successor corporation of the Company’s or such
Subsidiary Guarantor’s obligations under this Indenture and the Securities;


 


69














 


(2)                                  adding to the
covenants of the Company and the Subsidiary Guarantors or add any rights for
the benefit of the Holders or surrendering any right or power conferred upon
the Company;


 


(3)                                  securing the
obligations of the Company and the Subsidiary Guarantors or adding Guarantees
in respect of the Securities;


 


(4)                                  evidencing and
providing for the acceptance of the appointment of a successor trustee in
accordance with Article 8;


 


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


 


(6)                                  providing for
conversion rights of Holders if any reclassification or change of Common Stock
or any consolidation, merger or sale of all or substantially all of the Company’s
property and assets occurs or otherwise complying with the provisions of this
Indenture in the event of a merger, consolidation or transfer of assets
(including the provisions of Section 4.10 and Article 6);


 


(7)                                  establishing
the forms or terms of the Securities;


 


(8)                                  curing any ambiguity,
omission, defect or inconsistency in the Indenture, correcting or supplementing
any provision in the Indenture, or making any other provisions with respect to
matters or questions arising under the Indenture, so long as the interests of
Holders of Securities are not adversely affected in any material respect
under  this Indenture;


 


(9)                                  to conform the
provisions of the Indenture or the Securities to the corresponding description
of the Securities contained in the applicable prospectus; or


 


(10)                            making any
change that will not adversely affect the rights of the Holders in any material
respect.


 


Section 10.02.                       With Consent of
Holders.


 


(a)                                  The Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture and the
Securities with the consent of the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities. 
However, without the written consent of each Holder affected, an
amendment or supplement may not:


 


(1)                                  change the
Stated Maturity of any payment of principal of or any installment of interest
on any Security (including the payment of Special Interest, if any);


 


(2)                                  reduce the
principal amount of Securities or alter the manner or rate of accrual of
interest (including Special Interest) on the Securities;


 


(3)                                  reduce
Redemption Price, Fundamental Change Purchase Price payable with respect to any
of the Securities;


 


70

















 


(4)                                  change the
Company’s obligation to redeem any Security on a Redemption Date in a manner
adverse to such Holder;


 


(5)                                  change the
Company’s obligation to repurchase any Security upon a Fundamental Change in a
manner adverse to such Holder;


 


(6)                                  change any
place of payment where, or the currency in which, any principal or interest
(including Special Interest) in respect of any Security is payable;


 


(7)                                  make any change
that adversely affects the conversation rights of any Holder of Securities;


 


(8)                                  impair the
right of any Holder of a Security to receive payment of principal and interest
(including any Special Interest) on such Holders’ Securities when due;


 


(9)                                  impair the
right to institute suit for the enforcement of any payment on or with respect
to any Security;


 


(10)                            reduce the
percentage in principal amount of the Securities, the consent of whose Holders
is required to amend or supplement this Indenture or the Securities, or the
consent of whose Holders is required for any waiver of compliance with various
provisions of this Indenture or the Securities or various defaults thereunder
and their consequences provided for in the Indenture;


 


(11)                            modify any of
the foregoing provisions described in clause (11) above except to increase any
such percentage or to provide that other provisions of this Indenture or the
Securities cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby; or


 


(12)                            release any
Subsidiary Guarantor from its Note Guarantee, except as provided in this
Indenture.


 


(b)                                 Without limiting the
provisions of Section 10.02(a) hereof, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may, on behalf of
all the Holders of all Securities, (i) waive compliance by the Company
with the restrictive provisions of this Indenture, and (ii) waive any past
Default or Event of Default under this Indenture and its consequences, except
an uncured failure to pay any amounts due or to deliver amounts due upon
conversion, with respect to the Securities, or in respect of any provision
which under this Indenture cannot be modified or amended without the consent of
the Holder of each outstanding Security affected.


 


(c)                                  Upon delivery to the Trustee
of a Company Request, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, if required, the Trustee shall, subject to Section 10.03,
join with the Company in the execution of such supplemental indenture.


 


71

















 


(d)                                 It shall not be necessary
for any Act of Holders under this Section 10.02 to approve the particular
form of any proposed supplemental indenture but it shall be sufficient if such
Act shall approve the substance thereof.


 


Section 10.03.                       Execution of
Supplemental Indentures and Agreements.


 


In executing, or accepting the additional
trusts created by, any supplemental indenture, agreement, instrument or waiver
permitted by this Article 10 or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, in
addition to the documents required by Section 12.04, and (subject to Section 8.01
and Section 8.03(a) hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officer’s Certificate each stating that the
execution of such supplemental indenture, agreement or instrument, or
acceptance of any such additional trust, is authorized or permitted by this
Indenture.  The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture, agreement or
instrument, or accept any such additional trusts, which affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.


 


Section 10.04.                       Effect of
Supplemental Indentures.


 


Upon the execution of any supplemental
indenture under this Article 10, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


 


Section 10.05.                       Conformity with
Trust Indenture Act.


 


Every supplemental indenture executed
pursuant to this Article 10 shall conform to the requirements of the TIA
as then in effect.


 


Section 10.06.                       Reference in
Securities to Supplemental Indentures.


 


Securities authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article 10
may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.


 


Section 10.07.                       Notice
of Supplemental Indentures.


 


Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of Section 10.02,
the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 12.02, setting
forth in general terms the substance of such supplemental indenture.  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.


 


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ARTICLE 11


 


GUARANTEE OF SECURITIES


 


Section 11.01.                       Note
Guarantee.


 


Subject to the provisions of this Article Eleven, each Subsidiary
Guarantor hereby, jointly and severally, fully and unconditionally Guarantees
to each Holder of Securities hereunder and to the Trustee on behalf of the
Holders:  (i) the due and punctual
payment of the principal of, premium, if any, on and interest on each Security,
when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of and interest, if any, on the Securities, to the extent
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance with the terms of such
Security and this Indenture and (ii) in the case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed  in accordance with the terms of the extension
or renewal, at Stated Maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above,
to the limitations set forth in the next succeeding paragraph.


 


Each Subsidiary Guarantor and by its
acceptance hereof each Holder hereby confirms that it is the intention of all
such parties that the Guarantee by any Subsidiary Guarantor pursuant to its
Note Guarantee not constitute a fraudulent transfer or conveyance for purposes
of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar Federal or state law.  To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under its Note Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of each Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Note Guarantee or pursuant to the following paragraph,
result in the obligations of such Subsidiary Guarantor under its Note Guarantee
not constituting such fraudulent transfer or conveyance.


 


In order to provide for just and equitable
contribution among the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the event any payment or
distribution is made by any Subsidiary Guarantor (a “Funding Guarantor”)
under its Note Guarantee, such Funding Guarantor shall be entitled to a contribution
from all other Subsidiary Guarantors in a pro
rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company’s
obligations with respect to the Securities or any other Subsidiary Guarantor’s
obligations with respect to its Note Guarantee. 
“Adjusted Net Assets” of such Subsidiary Guarantor at any date
shall mean the lesser of the amount by which (x) the fair value of the
property of such Subsidiary Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Note Guarantee, of such Guarantor at such
date and (y) the present fair salable value of the assets of such 


 


73

















 


Subsidiary Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Subsidiary Guarantor in
respect of the obligations of such Subsidiary under the Note Guarantee of such
Subsidiary Guarantor), excluding debt in respect of its Note Guarantee of such
Subsidiary Guarantor), excluding debt in respect of its Note Guarantee, as they
become absolute and matured.


 


Each Subsidiary Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, the benefit of discussion, protest or notice with
respect to any such Security or the debt evidenced thereby and all demands
whatsoever (except as specified above), and covenants that this Note Guarantee
will not be discharged as to any such Security except by payment in full of the
principal thereof and interest thereon and as provided in Section 9.01. In
the event of any declaration of acceleration of such obligations as provided in
Article Seven, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Subsidiary Guarantor for the purposes
of this Article Eleven.  In
addition, without limiting the foregoing provisions, upon the effectiveness of
an acceleration under Article Seven, the Trustee shall promptly make a
demand for payment on the Securities under the Note Guarantee provided for in
this Article Eleven.


 


The obligations of each Subsidiary Guarantor
under its Note Guarantee are independent of the obligations Guaranteed by the
Subsidiary Guarantor hereunder, and a separate action or actions may be brought
and prosecuted by the Trustee on behalf of, or by, the Holders, subject to the
terms and conditions set forth in this Indenture, against any Subsidiary
Guarantor to enforce this Note Guarantee, irrespective of whether any action is
brought against the Company or whether the Company is joined in any such action
or actions.


 


If the Trustee or the Holder is required by
any court or otherwise to return to the Company or any Subsidiary Guarantor, or
any custodian, receiver, liquidator, trustee, sequestrator or other similar
official acting in relation to Company or any Subsidiary Guarantor, any amount
paid to the Trustee or such Holder in respect of a Security, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.  Each Subsidiary
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, the maturity of the obligations Guaranteed hereby may be
accelerated as provided in Article Seven hereof for the purposes of this
Note Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations Guaranteed hereby.


 


Each Subsidiary Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
the Company or any other Subsidiary Guarantor that arise from the existence,
payment, performance or enforcement of its obligations under this Note
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any Subsidiary Guarantor or any collateral which any such Holder or the
Trustee on behalf of such Holder hereafter acquires, whether or not 


 


74

















 


such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company or a Subsidiary
Guarantor, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights.  If any amount shall be paid to a
Subsidiary Guarantor in violation of the preceding sentence and the principal
of, premium, if any, and accrued interest on the Securities shall not have been
paid in full, such amount shall be deemed to have been paid to such Subsidiary
Guarantor for the benefit of, and held in trust for the benefit of, the
Holders, and shall forthwith be paid to the Trustee for the benefit of the
Holders to be credited and applied upon the principal of, premium, if any, and
accrued interest on the Securities.  Each
Subsidiary Guarantor acknowledges that it will receive direct and indirect
benefits from the issuance of the Securities pursuant to this Indenture and
that the waivers set forth in this Section 11.01 are knowingly made in
contemplation of such benefits.


 


The Note Guarantee set forth in this Section 11.01
shall not be valid or become obligatory for any purpose with respect to a
Security until the certificate of authentication on such Security shall have
been signed by or on behalf of the Trustee.


 


Section 11.02.                       Obligations
Unconditional.


 


Nothing contained in this Article Eleven or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among any
Subsidiary Guarantor and the holders of the Securities, the obligation of such
Subsidiary Guarantor, which is absolute and unconditional, upon failure by the
Company to pay to the holders of the Securities the principal of, premium, if
any, and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of such Subsidiary Guarantor, nor
shall anything herein or therein prevent any Holder or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture.


 


Without limiting the foregoing, nothing
contained in this Article Eleven will restrict the right of the Trustee or
the Holders to take any action to declare the Note Guarantee to be due and
payable prior to the Stated Maturity of any Securities pursuant to Section 7.02
or to pursue any rights or remedies hereunder.


 


Section 11.03.                       Release
of Note Guarantees.


 


The Note Guarantee of any Subsidiary Guarantor will be automatically
and unconditionally released and discharged upon:


 


(i)                                     the
satisfaction and discharge of this Indenture in accordance with the terms of
this Indenture;


 


(ii)                                  the sale,
exchange or transfer (including by way of merger or consolidation) to any
Person (other than an Affiliate of the Company) of all of the Capital Stock of
such Subsidiary Guarantor; or


 


(iii)                               the release and
discharge of the Guarantee by such Subsidiary Guarantor which resulted in the
obligation to Guarantee the Securities (including, in the case of an 


 


75

















 


Initial
Subsidiary Guarantor, the release and discharge of all Guarantees by such
Initial Subsidiary Guarantor of the Company’s obligations under the Company’s
debt securities and the Credit Agreement outstanding on the Closing Date), provided that such Subsidiary Guarantor has not Guaranteed
any other Indebtedness of the Company which would have resulted in an
obligation to Guarantee the Securities and such other Guarantee has not also
been unconditionally released and discharged.


 


At the request of the Company
and upon being provided an Officer’s Certificate and an Opinion of Counsel
complying with Section 12.04, the Trustee shall execute and deliver an
appropriate instrument evidencing such release.


 


Section 11.04.                       Notice
to Trustee.


 


Each Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Note Guarantee
pursuant to the provisions of this Article Eleven.


 


Section 11.05.                       This Article Not
to Prevent Events of Default.


 


The failure to make a payment on account of principal of, premium, if
any, or interest on the Securities by reason of any provision of this Article Eleven
will not be construed as preventing the occurrence of an Event of Default.


 


ARTICLE 12


 


MISCELLANEOUS


 


Section 12.01.                       Conflict with
Trust Indenture Act.


 


If any provision hereof limits, qualifies or
conflicts with any provision of the TIA or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the TIA,
the provision or requirement of the TIA shall control.  If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.


 


Section 12.02.                       Notices.


 


Any demand, authorization notice, request,
consent or communication shall be given in writing and mailed by first-class
mail, postage prepaid, or delivered by recognized overnight courier addressed
as follows or transmitted by facsimile transmission (confirmed by delivery in
person or mail by first-class mail, postage prepaid, or by guaranteed overnight
courier) to the following facsimile numbers:


 


If to the Company, to:


 


Steel Dynamics, Inc.


6714 Pointe Inverness Way, Suite 200


Fort Wayne, IN 46804


Facsimile (260) 969-3587


Attention: Theresa Wagler


 


76

















 


or at any other address previously furnished in writing to the Trustee
by the Company, with a copy to:


 


Barrett & McNagny LLP


215 East Berry Street


Fort Wayne, IN 46802,


Facsimile: (260) 423-8920


Attention: Robert Walters


 


if to the Trustee, to:


 


Wells Fargo Bank, National Association


230 West Monroe Street, Suite 2900


Chicago, IL 60606


Telecopier No.:  (312) 726-2158 


Attention:  Corporate Trust
Services


 


or at any other address previously furnished in writing to the Holders
or the Company or any other obligor on the Securities by the Trustee.


 


Such notices or communications shall be
effective only when actually received.


 


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


 


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


 


In case by reason of the suspension of
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event as required by any provision of this 


 


77

















 


Indenture, then any method
of giving such notice as shall be reasonably satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.


 


If the Company mails any notice to a Holder
of a Security, it shall mail a copy to the Trustee and each Registrar, Paying
Agent and Conversion Agent.


 


Section 12.03.                       Disclosure
of Names and Addresses of Holders.


 


Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with TIA Section 312(b).  The Company, the Trustee, the Registrar and
any other Person shall have the protection of TIA 312(c).  Further, every Holder of Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee or any agent of either of them shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312.


 


Section 12.04.                       Compliance
Certificates and Opinions.


 


(a)                                  Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture and as may be requested by the Trustee, the Company shall
furnish to the Trustee an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as
to which the furnishing of such certificates or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.


 


(b)                                 Every certificate or Opinion
of Counsel with respect to compliance with a condition or covenant provided for
in this Indenture shall include:


 


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


 


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


 


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


 


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


 


78














 


Section 12.05.        Acts of Holders.


 


(a)           Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company.  Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 12.05.


 


(b)           The ownership of Securities shall be proved by the
register maintained by the Primary Registrar.


 


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


 


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


 


(e)           If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so.  Notwithstanding TIA Section 316(c), any
such record date shall be the record date specified in or pursuant to such
Board Resolution, which shall be a date not more than 30 days prior to the
first solicitation of Holders generally in connection therewith and no later
than the date such first solicitation is completed.


 


(f)            If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, 


 


79

















 


direction, notice, consent, waiver or other
Act, and for this purpose the Securities then Outstanding shall be computed as
of such record date; provided that no such request, demand, authorization,
direction, notice, consent, waiver or other Act by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after such record date.


 


(g)           For purposes of this Indenture, any action by the Holders
which may be taken in writing may be taken by electronic means or as otherwise
reasonably acceptable to the Trustee.


 


Section 12.06.        Benefits of Indenture.


 


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


 


Section 12.07.        Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Fundamental Change Purchase Date or
Final Maturity Date of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on such Interest Payment Date, Redemption Date, Fundamental Change Purchase
Date or Final Maturity Date, and no interest shall accrue with respect to such
payment for the period from and after such Interest Payment Date, Redemption
Date, Fundamental Change Purchase Date or Final Maturity Date, as the case may
be, to the next succeeding Business Day.


 


Section 12.08.        Governing Law; Waiver of Trial by
Jury.


 


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


 


EACH PARTY HERETO, AND EACH
HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS INDENTURE.


 


Section 12.09.        No Adverse Interpretation of Other Agreements.


 


This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a
Subsidiary of the Company.  Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


Section 12.10.        No Personal Liability of Directors,
Officers, Employees and Stockholders.


 


No director, officer,
employee, stockholder, incorporator or agent of the Company will have any
liability for any obligations of the Company under the Securities, the
Indenture or for 


 


80

















 


any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder of the Securities
by accepting a Security waives and releases all such liability.


 


Section 12.11.        Successors and Assigns.


 


All covenants and agreements
in this Indenture by the parties hereto shall bind their respective successors
and assigns, whether so expressed or not.


 


Section 12.12.        Multiple Counterparts.


 


The parties may sign
multiple counterparts of this Indenture. 
Each signed counterpart shall be deemed an original, but all of them
together represent the same agreement.


 


Section 12.13.        Separability Clause.


 


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.


 


Section 12.14.        Schedules and Exhibits.


 


All schedules and exhibits
attached hereto are by this reference made a part hereof with the same effect
as if herein set forth in full.


 


Section 12.15.        Effect of Headings and Table of
Contents.


 


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


 


[SIGNATURE PAGES FOLLOW]


 


81

















 


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


 


 


	
   

  	
  STEEL DYNAMICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SDI INVESTMENT COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
  NEW MILLENNIUM BUILDING SYSTEMS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  STEEL DYNAMICS, INC., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  STEEL DYNAMICS SALES NORTH AMERICA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  ROANOKE ELECTRIC STEEL
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  JOHN W. HANCOCK, JR., LLC

  
	
   

  	
   

  
	
   

  	
  By: ROANOKE ELECTRIC STEEL
  CORPORATION, MANAGER AND SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  NEW MILLENNIUM BUILDING
  SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  SOCAR OF OHIO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  STEEL OF WEST VIRGINIA,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  SWVA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  MARSHALL STEEL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  STEEL VENTURES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  SHREDDED PRODUCTS II, LLC

  
	
   

  	
   

  
	
   

  	
  By: STEEL DYNAMICS, INC., MANAGER AND SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  THE TECHS INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  ADMETCO, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  AUBURN INVESTMENT COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  CAPITOL CITY METALS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  OMNISOURCE INDIANAPOLIS, SOLE MEMBER

  
	
   

  	
   

  	
   

  
	
   

  	
  BY: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  GLOBAL SHREDDING TECHNOLOGIES, LTD., LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  INDUSTRIAL SCRAP CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  INDUSTRIAL SCRAP, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  JACKSON IRON & METAL COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  LUCKY STRIKE METALS, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  MICHIGAN PROPERTIES ECORSE, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  OMNISOURCE BAY CITY, LLC

  
	
   

  	
   

  
	
   

  	
  By: JACKSON IRON & METAL COMPANY, INC.,
  SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  OMNISOURCE ATHENS DIVISION, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  OMNISOURCE CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  OMNISOURCE INDIANAPOLIS, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  OMNISOURCE MEXICO, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  OMNISOURCE TRANSPORT, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  OMNISOURCE, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  RECOVERY TECHNOLOGIES, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  SCIENTIFIC RECYCLING GROUP, LLC

  
	
   

  	
   

  
	
   

  	
  By: OMNISOURCE CORPORATION, SOLE MEMBER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:  Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  SUPERIOR ALUMINUM ALLOYS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  OMNISOURCE SOUTHEAST, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  COHEN & GREEN SALVAGE CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  LUMBERTON RECYCLING COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  RAEFORD SALVAGE COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Theresa E. Wagler, Vice President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  CAROLINAS RECYCLING GROUP, LLC

  
	
   

  	
   

  
	
   

  	
  BY: OMNISOURCE SOUTHEAST, LLC, MANAGER AND SOLE
  MEMBER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  ATLANTIC SCRAP AND PROCESSING-WILMINGTON, LLC

  
	
   

  	
   

  
	
   

  	
  BY: OMNISOURCE SOUTHEAST, LLC, MANAGER AND SOLE
  MEMBER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Theresa E. Wagler, Vice
  President

  



 


 


Steel Dynamics, Inc.


Indenture


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Steel Dynamics, Inc.


Indenture


 


















 


Exhibit A


 


[FORM OF FACE OF
SECURITY]


 


UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. 
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF.  THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A 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.(1)


 


Steel Dynamics, Inc.


 


    %
Convertible Senior Notes due 20


 


	
  No.  R-

  	
   

  	
  CUSIP:

  



 


Steel Dynamics, Inc., a
Indiana corporation, promises to pay to Cede & Co. or registered
assigns the principal sum as set forth in the “Schedule of Exchanges of
Securities” attached hereto, which shall not exceed DOLLARS ($      ) on
                    ,
20    .


 


This Security shall bear
interest as specified on the other side of this Security.  This Security is convertible as specified on
the other side of this Security.


 


SDI Investment Co., a Delaware corporation, Steel
Dynamics Sales North America, Inc., an Indiana corporation, New Millennium
Building Systems, LLC, an Indiana limited liability company, Roanoke Electric
Steel Corporation, an Indiana corporation, New Millennium Building Systems, Inc.,
a South Carolina corporation, Socar of Ohio, Inc., an Ohio corporation, Shredded
Products II, LLC, an Indiana limited liability company, John W. Hancock, Jr.,
LLC, a 


 






(1)                                  This paragraph
should be included only if the Security is a Global Security.


 


A-1

















 


Virginia limited
liability company, Steel of West Virginia, Inc., a Delaware corporation,
Steel Ventures, Inc., a Delaware corporation, SWVA, Inc., a Delaware
corporation, Marshall Steel Inc., a Delaware corporation, The Techs Industries, Inc.,
a Delaware corporation, OmniSource Corporation, an Indiana corporation, Admetco, Inc.,
an Indiana corporation, Auburn Investment Company, LLC, an Indiana limited
liability company, Capitol City Metals, LLC, an Indiana limited liability
company, Global Shredding Technologies, Ltd., LLC, an Indiana limited liability
company, Industrial Scrap Corporation, an Indiana corporation, Industrial
Scrap, LLC, an Indiana limited liability company, Jackson Iron & Metal
Company, Inc., a Michigan corporation, Lucky Strike Metals, LLC, an
Indiana limited liability company, Michigan Properties Ecorse, LLC, an Indiana
limited liability company, OmniSource Athens Division, LLC, an Indiana limited
liability company, OmniSource Bay City, LLC, an Indiana limited liability
company, OmniSource Indianapolis, LLC, an Indiana limited liability company,
OmniSource, LLC, an Indiana limited liability company, OmniSource Mexico, LLC,
an Indiana limited liability company, OmniSource Transport, LLC, an Indiana
limited liability company, Recovery Technologies, LLC, an Indiana limited
liability company, Scientific Recycling Group, LLC, an Indiana limited
liability company, Superior Aluminum Alloys, LLC, an Indiana limited liability
company, and OmniSource Southeast, LLC, a Delaware limited
liability company, Carolinas Recycling Group, LLC, a South Carolina
limited liability company,  Atlantic Scrap and Processing —
Wilmington, LLC, a North Carolina limited liability company, Cohen &
Green Salvage Co., Inc., a North Carolina corporation, Raeford Salvage
Company, Inc., a North Carolina corporation, and Lumberton Recycling
Company, Inc., a North Carolina corporation, and any future Subsidiary
Guarantors (collectively, the “Subsidiary Guarantors,” which term includes any
successors under the Indenture hereinafter referred to and any Subsidiary that
provides a Note Guarantee pursuant to the Indenture), has fully and
unconditionally guaranteed the payment of principal of premium, if any, and
interest on the Securities.


 


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


 


A-2

















 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


	
   

  	
  STEEL DYNAMICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Dated:


 


Trustee’s Certificate of
Authentication:


 


This is one of the
Securities referred to in the within-mentioned 


Indenture.


 


Wells Fargo Bank, National
Association, as Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-3

















 


[FORM OF REVERSE SIDE
OF SECURITY]


 


Steel Dynamics, Inc.


 


    %
Convertible Senior Notes due 20   


 


1.                                      Interest


 


Steel Dynamics, Inc., a
Indiana corporation (the “Company”, which term shall include any successor
company under the Indenture hereinafter referred to), promises to pay interest
on the principal amount of this Security at the rate of
    % per annum.  The
Company shall pay interest semiannually, in arrears, on
                    
and
                    
of each year (each an “Interest Payment Date”), commencing on
                    ,
20    .  Interest
payable on any Interest Payment Date shall include interest accrued from and
including the immediately preceding Interest Payment Date (or if none, from and
including
                    ,
20    ) to but excluding the relevant Interest Payment
Date.  Cash interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months.  Any payment required to be made on a day that
is not a Business Day shall be made on the next succeeding Business Day with
the same force and effect as if made on such day and without any interest in
respect of the delay.  The Company shall,
to the fullest extent permitted by law, pay interest in immediately available
funds on overdue principal and interest at the rate of
    % per annum, compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the day
preceding the date payment of such amount, including interest thereon, has been
made or duly provided for.


 


Any reference herein to
interest accrued or payable as of any date shall include any Special Interest
that may be payable in accordance with the provisions of Section 7.02 of
the Indenture.


 


2.                                      Method
of Payment


 


The Company shall pay
interest on this Security (except defaulted interest) to the Person who is the
Holder of this Security at the close of business on
                    
or                     ,
as the case may be (each, a “Regular Record Date”) next preceding the related
Interest Payment Date.  The Holder must
surrender this Security to a Paying Agent to collect payment of principal.  The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts.


 


3.                                      Paying
Agent, Registrar and Conversion Agent


 


Initially, Wells Fargo Bank,
National Association (the “Trustee”, which term shall include any successor
trustee under the Indenture hereinafter referred to) will act as Paying Agent,
Registrar and Conversion Agent.  The
Company may change any Paying Agent, Registrar or Conversion Agent without
notice to the Holders.  The Company or
any of its Affiliates may, subject to certain limitations set forth in the
Indenture, act as Paying Agent.


 


A-4

















 


4.                                      Indenture


 


This Security is one of a
duly authorized issue of Securities of the Company designated as its
    % Convertible Senior Notes due
20     (the “Securities”), issued under an Indenture, dated
as of
                  ,
20     (together with any supplemental indentures thereto,
the “Indenture”), among the Company, the Subsidiary Guarantors named therein
and the Trustee.  The terms of this
Security include those stated in the Indenture and those required by or made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the “TIA”), as in effect on the date of the Indenture.  This Security is subject to all such terms,
and the Holder of this Security is referred to the Indenture and the TIA for a
statement of them.  The Securities are
limited to
$                  
aggregate principal amount.  The
Indenture does not limit other debt of the Company, secured or unsecured.


 


Capitalized terms not
otherwise defined herein have the meaning ascribed to such terms in the
Indenture.


 


5.                                      Redemption


 


On or after
                    ,
20    , if the Last Reported Sale Price of the Company’s
Common Stock for 20 or more Trading Days (whether or not consecutive) in a
period of 30 consecutive Trading Days ending on the Trading Day prior to the
date the Company provides the notice of redemption to Holders exceeds 130% of
the applicable Conversion Price in effect on each such Trading Day, the Company
may redeem for cash all or part of the Securities, upon not less than 30 nor
more than 60 days’ notice before the Redemption Date to the Trustee, the Paying
Agent and each Holder of Securities at their last registered address, all as
provided in the Indenture; provided that
the Company shall not redeem the Securities if the Redemption Date would be
after the Final Maturity Date.  The
Redemption Price of a Security will be equal to 100% of the principal amount of
Securities being redeemed, plus accrued and unpaid interest (including Special Interest,
if any), to, but not including, the Redemption Date; provided
that if the Redemption Date falls after a Regular Record Date and on or prior
to the corresponding Interest Payment Date, the Redemption Price shall be 100%
of the principal amount of the Securities redeemed but shall not include
accrued and unpaid interest (including Special Interest, if any).  Instead, the Company shall pay such accrued
and unpaid interest (including Special Interest, if any), if any, on the
Interest Payment Date, to the Holder of record at the close of business on the
corresponding Regular Record Date.


 


6.                                      Purchase
of Securities at Option of Holder Upon a Fundamental Change


 


Upon a Fundamental Change,
at the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase for cash all or any
part specified by the Holder (so long as the principal amount of such part is
$1,000 or an integral multiple of $1,000) of the Securities held by such Holder
on the date specified by the Company in accordance with the provisions of Article 3
of the Indenture.


 


7.                                      Conversion


 


Subject to and upon
compliance with the provisions of the Indenture, the Holder may surrender for
conversion all or any portion of this Security that is in an integral multiple
of 


 


A-5

















 


$1,000.  Upon conversion, the Holder shall be entitled
to receive the consideration specified in the Indenture.  No fractional share of Common Stock shall be
issued upon conversion of a Security. 
Instead, the Company shall pay a cash adjustment as provided in the
Indenture.  The initial Conversion Rate
of the Securities shall be
           shares of Common
Stock per $1,000 principal amount of Securities, subject to adjustment in
accordance with the provisions of Article 4 of the Indenture.  If a Holder converts all or any portion of
this Security in connection with the occurrence of certain Fundamental Change
transactions, the Conversion Rate shall be increased in the manner and to the
extent described in Section 4.06 of the Indenture.


 


Securities surrendered for
conversion (in whole or in part) during the period from the close of business
on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date shall be accompanied by payment by the Holders of such
Securities in funds to the Conversion Agent acceptable to the Company of an
amount equal to the interest payable on such corresponding Interest Payment
Date; provided that no such payment need be
made: (1) if the Company has called the Securities for redemption on a
Redemption Date that falls after a Regular Record Date for an Interest Payment
Date and on or prior to the corresponding Interest Payment Date; (2) in
connection with a conversion following the Regular Record Date preceding the
Final Maturity Date; (3) if the Company has specified a Fundamental Change
Purchase Date that is after a Regular Record Date and on or prior to the
corresponding Interest Payment Date; or (4) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect
to such Security.


 


A Security in respect of
which a Holder has submitted a Fundamental Change Purchase Notice may be
converted only if such Holder validly withdraws such Fundamental Change
Purchase Notice in accordance with the terms of the Indenture.


 


8.                                      Denominations,
Transfer, Exchange


 


The Securities are in
registered form, without coupons, in denominations of $1,000 principal amount
and integral multiples of $1,000 principal amount.  A Holder may register the transfer of or
exchange Securities in accordance with the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes or other governmental charges that may be imposed in relation
thereto by law or permitted by the Indenture.


 


9.                                      Persons
Deemed Owners


 


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


 


10.                               Unclaimed
Money


 


If money for the payment of
principal or interest remains unclaimed for two years, the Trustee and any
Paying Agent will pay the money back to the Company, subject to the provisions
of the Indenture.  After that, Holders
entitled to money must look to the Company for payment as general creditors.


 


A-6

















 


11.                               Amendment,
Supplement and Waiver


 


Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities then Outstanding, and an existing Default or Event of Default
and its consequence or compliance with any provision of the Indenture or the
Securities may be waived subject to certain exceptions with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding.  Without the consent of or
notice to any Holder, the Company and the Trustee may amend or supplement the
Indenture or the Securities to, among other things, (x) cure any
ambiguity, omission, mistake, defect or inconsistency or (y) make any
other change that does not adversely affect the interests of the Holders in any
material respect.


 


12.                               Successor
Entity


 


When a successor Person
assumes all the obligations of its predecessor under the Securities and the
Indenture in accordance with the terms and conditions of the Indenture, the
predecessor Person (except in certain circumstances specified in the Indenture)
shall be released from those obligations.


 


13.                               Defaults
and Remedies


 


An Event of Default shall
occur upon the occurrence of any of the events specified in Section 7.01(a) of
the Indenture.  Subject to the provisions
of the penultimate paragraph of Section 7.02(c) of the Indenture, if
an Event of Default shall occur and be continuing with respect to the
Securities (other than an Event of Default specified in clause (10) or
(11) of Section 7.01(a) of the Indenture), the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities then
Outstanding may declare all unpaid principal of and accrued interest (including
Special Interest), if any, on all Securities to be due and payable, by a notice
in writing to the Company (and to the Trustee if given by the Holders of the
Securities).  Upon any such declaration,
such principal and interest (including Special Interest), if any, shall become
due and payable immediately.  If an Event
of Default specified in clauses (10) or (11) of Section 7.01(a) of
the Indenture occurs and is continuing, then all the Securities shall ipso
facto become and be due and payable immediately in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest
(including Special Interest), if any, to the date the Securities become due and
payable, without any declaration or other act on the part of the Trustee or any
Holder.


 


The Holders of a majority in
aggregate principal amount of the Securities Outstanding, by written notice to
the Company and the Trustee, may rescind and annul an acceleration and its
consequences if:  (a) the Company
has paid or deposited with the Trustee a sum sufficient to pay (1) all
sums paid or advanced by the Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, (2) all overdue interest on all Securities then Outstanding, (3) the
principal of any Securities then Outstanding which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate borne
by the Securities, and (4) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the Securities; (b) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; 


 


A-7

















 


and
(c) all Defaults and Events of Default, other than the non-payment of
principal of and interest on the Securities which have become due solely by
such declaration of acceleration, have been cured or waived.  No such rescission shall affect any
subsequent Default or impair any right consequent thereon.


 


Holders may not enforce the
Indenture or the Securities except as provided in the Indenture.  The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.  Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may
direct the Trustee in its exercise of any trust or power.  The Trustee may, in accordance with the provisions
of the Indenture, withhold from Holders notice of any continuing Default
(except a Default in payment of principal or interest or to deliver amounts
owing upon conversion) if and so long as it determines that withholding notice
is in their interests.  The Company is
required to file periodic certificates with the Trustee as to the Company’s
compliance with the Indenture and knowledge or status of any Default.


 


14.                               Trustee
Dealings with the Company


 


Wells Fargo Bank, National
Association, the initial Trustee under the Indenture, or any of its Affiliates,
in its individual or any other capacity, may make loans to, accept deposits
from and perform services for the Company or an Affiliate of the Company or any
of the Subsidiary Guarantors, and may otherwise deal with the Company or an
Affiliate of the Company or any of the Subsidiary Guarantors, as if it were not
the Trustee, subject to the TIA.


 


15.                               Guarantee


 


The Company’s obligations
under the Securities are fully and unconditionally guaranteed, jointly and
severally, by the Subsidiary Guarantors.


 


16.                               No
Recourse Against Others


 


No director, officer,
employee, stockholder, incorporator or agent of the Company, as such, will have
any liability for any obligations of the Company under the Securities, the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation.  Each Holder of the
Securities by accepting a Security waives and releases all such liability.


 


17.                               Authentication


 


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


 


18.                               Abbreviations
and Definitions


 


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


 


A-8

















 


All terms defined in the
Indenture and used in this Security but not specifically defined herein are
defined in the Indenture and are used herein as so defined.


 


19.                               Indenture
to Control; Governing Law


 


In the case of any conflict
between the provisions of this Security, the Indenture and the Guarantees, the
provisions of the Indenture shall control. 
This Security, the Indenture and the Guarantees shall be governed by,
and construed in accordance with, the laws of the State of New York.


 


The Company will furnish to
any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made to Steel
Dynamics, Inc., 6714 Pointe Inverness Way, Suite 200, Fort Wayne,
Indiana  46804; Attention: Chief
Financial Officer.


 


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SCHEDULE OF EXCHANGES OF SECURITIES


 


The initial principal amount
of this Global Security is        ($      )
The following exchanges, purchases or conversions of a part of this Global
Security have been made:


 


	
  Date

  	
   

  	
  Authorized

  Signatory of

  Securities Custodian

  	
   

  	
  Notation Stating and

  Explaining Change

  in Principal

  Amount Recorded

  	
   

  	
  Principal Amount

  of this

  Global Security

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10

















 


ASSIGNMENT FORM


 


To assign this Security,
fill in the form below:


 


I, or, we assign and
transfer this Security to:


 


	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

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

  



 


and irrevocably appoint:


 


	
   

  
	
  agent
  to transfer this Security on the books of the Company. The agent may
  substitute another to act for him or her.

  



 


 


	
   

  	
   

  	
  Your
  Signature:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  *Signature
  guaranteed by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  



 






	
  *

  	
  The
  signature must be guaranteed by an institution which is a member of one of
  the following recognized signature guaranty programs: (i) the Securities
  Transfer Agent Medallion Program (STAMP); (ii) the New York Stock
  Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion
  Program (SEMP); or (iv) such other guaranty program acceptable to the
  Trustee.

  



 


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FORM OF CONVERSION NOTICE


 


To convert this Security
into Common Stock of the Company, check the box:  o


 


To convert only part of this
Security, state the principal amount to be converted (must be $1,000 or a
integral multiple of $1,000): 
$              .


 


If you want the stock
certificate made out in another person’s name, fill in the form below:


 


	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

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

  



 


 


	
   

  	
   

  	
  Your
  Signature:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  *Signature
  guaranteed by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  



 






	
  *

  	
  The
  signature must be guaranteed by an institution which is a member of one of
  the following recognized signature guaranty programs: (i) the Securities
  Transfer Agent Medallion Program (STAMP); (ii) the New York Stock
  Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion
  Program (SEMP); or (iv) such other guaranty program acceptable to the
  Trustee.

  



 


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FORM OF
NOTICE OF REDEMPTION


 


[DATE]


 


To the Holders of the
    % Convertible Senior Notes due
20     issued by Steel Dynamics, Inc.:


 


Steel
Dynamics, Inc. (the “Issuer”) by this written notice hereby
exercises, pursuant to Section 3.01 of that certain Indenture (the “Indenture”),
dated as of
                    ,
20    , between the Issuer and Wells Fargo Bank, National
Association, its right to redeem
$[                  ]
of its     % Convertible Senior Notes due 20    
(the “Securities”).  All capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture.


 


	
  1.

  	
  Redemption Date:
  [              
      ,         ]

  
	
   

  	
   

  
	
  2.

  	
  Redemption Price:
  $[            ]

  
	
   

  	
   

  
	
  3.

  	
  Conversion Rate: Each $1,000 principal amount of the Securities is
  convertible into           
  shares of the Issuer’s common stock, par value $0.10 per share (the “Common
  Stock”), subject to adjustment, during the period described below.

  
	
   

  	
   

  
	
  4.

  	
  Paying Agent and Conversion Agent: [NAME] [ADDRESS]

  
	
   

  	
   

  
	
  5.

  	
  The Securities called for redemption may be converted at your option
  at any time from the date of this Notice of Redemption until 5:00 p.m.
  (New York City time) on the Business Day immediately prior to the Redemption
  Date set forth above.

  
	
   

  	
   

  
	
  6.

  	
  The Securities called for redemption and not converted at your
  election prior to 5:00 p.m. (New York City time) on the Business Day
  immediately prior to Redemption Date set forth above shall be redeemed on the
  Redemption Date.

  
	
   

  	
   

  
	
  7.

  	
  If you elect to convert your Securities, you must satisfy the
  requirements for conversion set forth in your Securities.

  
	
   

  	
   

  
	
  8.

  	
  Your Securities called for redemption must be surrendered by you (by
  effecting book entry transfer of the Securities or delivering Certificated
  Securities, together with necessary endorsements, as the case may be) to
  [Name of Paying Agent] at [insert address] in order for you to collect the
  Redemption Price.

  
	
   

  	
   

  
	
  9.

  	
  [The Securities bearing the following Certificate Number(s) in
  the principal amount set forth below opposite such Certificate
  Number(s) are being redeemed:

  
	
   

  	
   

  
	
   

  	
  Certificate Number(s)  Principal Amount]

  
	
   

  	
   

  
	
  10.

  	
  Unless the Issuer defaults in making the payment of the Redemption
  Price owed to you, Interest and Special Interest, if any, on your Securities
  called for redemption shall cease to accrue on and after the Redemption Date.

  
	
   

  	
   

  
	
  11.

  	
  CUSIP Number:

  



 


 


STEEL
DYNAMICS, INC.


 


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FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE


 


To:
[Name of Paying Agent]


 


The undersigned registered
owner of this Security hereby acknowledges receipt of a notice from Steel
Dynamics, Inc. (the “Company”) pursuant to Section 3.08 of that
certain Indenture (the “Indenture”), dated as of
                    ,
20    , between the Company and Wells Fargo Bank, National
Association, and requests and instructs the Company to purchase the entire
principal amount of this Security, or the portion thereof (which is $1,000 or
an integral multiple thereof) below designated, in accordance with the terms of
the Security and the Indenture at the Fundamental Change Purchase Price,
together with accrued and unpaid interest (including Special Interest, if any),
to, but not including, the Fundamental Change Purchase Date, to the registered
Holder hereof.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature (s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signatures must be
  guaranteed by a qualified guarantor institution with membership in an
  approved signature guarantee program pursuant to Rule 17Ad-15 under the
  Securities Exchange Act of 1934.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guaranty

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Principal amount to be
  redeemed (in an integral  Multiple of $1,000, if
  less than all): 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Certificate number (if
  applicable):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


 


NOTICE:  The signature to the foregoing election must
correspond to the name as written upon the face of this Security in every
particular, without any alteration or change whatsoever.


 


A-14