EX-4.7



 





Exhibit 4.7



 




 




 




GENERAL CABLE CORPORATION (a Delaware corporation), as Issuer,




the Guarantors named herein, as Guarantors,




and




U.S. BANK NATIONAL ASSOCIATION, as Trustee



 




INDENTURE




Dated
as of l, 2006



 




l% Senior Convertible Notes Due 2013




 




 



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	11	 
	Section 1.03. Trust Indenture Act Provisions
	 	 	12	 
	Section 1.04. Rules Of Construction
	 	 	12	 
	ARTICLE 2 THE SECURITIES
	 	 	13	 
	Section 2.01. Form and Dating
	 	 	13	 
	Section 2.02. Execution and Authentication
	 	 	14	 
	Section 2.03. Registrar, Paying Agent and Conversion Agent
	 	 	15	 
	Section 2.04. Paying Agent To Hold Money In Trust
	 	 	16	 
	Section 2.05. Conversion Agent To Hold Money In Trust
	 	 	16	 
	Section 2.06. Lists of Holders of Securities
	 	 	17	 
	Section 2.07. Transfer and Exchange
	 	 	17	 
	Section 2.08. Replacement Securities
	 	 	18	 
	Section 2.09. Outstanding Securities
	 	 	19	 
	Section 2.10. Treasury Securities
	 	 	19	 
	Section 2.11. Temporary Securities
	 	 	19	 
	Section 2.12. Cancellation
	 	 	19	 
	Section 2.13. Legend; Additional Transfer and Exchange Requirements
	 	 	20	 
	Section 2.14. CUSIP Numbers
	 	 	21	 
	Section 2.15. Calculations
	 	 	22	 
	Section 2.16. Payment of Interest; Interest Rights Preserved
	 	 	22	 
	Section 2.17. Computation of Interest
	 	 	23	 
	ARTICLE 3 PURCHASE
	 	 	23	 
	Section 3.01. Purchase of Securities by the Company for Cash at Option of the Holder Upon a Fundamental Change
	 	 	23	 
	Section 3.02. Effect of Fundamental Change Purchase Notice
	 	 	25	 
	Section 3.03. Deposit of Fundamental Change Purchase Price
	 	 	26	 
	Section 3.04. Repayment to the Company
	 	 	26	 
	Section 3.05. Securities Purchased In Part
	 	 	27	 
	Section 3.06. Compliance With Securities Laws Upon Purchase of Securities
	 	 	27	 
	Section 3.07. Purchase of Securities In Open Market
	 	 	27	 
	ARTICLE 4 CONVERSION
	 	 	27	 
	Section 4.01. Conversion Privilege and Conversion Rate
	 	 	27	 
	Section 4.02. Conversion Procedure
	 	 	31	 
	Section 4.03. Fractional Shares
	 	 	32	 
	Section 4.04. Taxes on Conversion
	 	 	33	 
	Section 4.05. Company To Provide Common Stock
	 	 	33	 
	Section 4.06. Adjustment of Conversion Rate
	 	 	33	 
	Section 4.07. No Adjustment
	 	 	38	 
	Section 4.08. Notice of Adjustment
	 	 	39	 
	Section 4.09. Notice of Certain Transactions
	 	 	39	 






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	 	 	Page	 
	Section 4.10. Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege
	 	 	39	 
	Section 4.11. Trustee’s Disclaimer
	 	 	41	 
	Section 4.12. Voluntary Increase
	 	 	41	 
	Section 4.13. Payment of Cash in Lieu of Common Stock
	 	 	42	 
	ARTICLE 5 COVENANTS
	 	 	42	 
	Section 5.01. Payment of Securities
	 	 	42	 
	Section 5.02. SEC Reports
	 	 	43	 
	Section 5.03. Compliance Certificates
	 	 	43	 
	Section 5.04. Further Instruments and Acts
	 	 	44	 
	Section 5.05. Maintenance of Corporate Existence
	 	 	44	 
	Section 5.06. [Intentionally Omitted]
	 	 	44	 
	Section 5.07. Stay, Extension And Usury Laws
	 	 	44	 
	Section 5.08. [Intentionally Omitted]
	 	 	44	 
	Section 5.09. Maintenance of Office or Agency
	 	 	44	 
	Section 5.10. [Intentionally Omitted]
	 	 	45	 
	Section 5.11. Note Guarantees
	 	 	45	 
	ARTICLE 6 CONSOLIDATION; MERGER; SALE OF ASSETS
	 	 	45	 
	Section 6.01. Company May Consolidate, Etc., Only on Certain Terms
	 	 	45	 
	Section 6.02. Successor Substituted
	 	 	46	 
	ARTICLE 7 DEFAULT AND REMEDIES
	 	 	47	 
	Section 7.01. Events of Default
	 	 	47	 
	Section 7.02. Acceleration
	 	 	49	 
	Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	49	 
	Section 7.04. Trustee May File Proofs of Claim
	 	 	50	 
	Section 7.05. Trustee May Enforce Claims Without Possession of Securities
	 	 	51	 
	Section 7.06. Application of Money Collected
	 	 	51	 
	Section 7.07. Limitation on Suits
	 	 	51	 
	Section 7.08. Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	52	 
	Section 7.09. Restoration of Rights and Remedies
	 	 	52	 
	Section 7.10. Rights and Remedies Cumulative
	 	 	52	 
	Section 7.11. Delay or Omission Not Waiver
	 	 	53	 
	Section 7.12. Control by Holders
	 	 	53	 
	Section 7.13. Waiver of Past Defaults
	 	 	53	 
	Section 7.14. Undertaking for Costs
	 	 	53	 
	Section 7.15. Remedies Subject to Applicable Law
	 	 	54	 
	ARTICLE 8 TRUSTEE
	 	 	54	 
	Section 8.01. Duties of Trustee
	 	 	54	 
	Section 8.02. Notice of Default
	 	 	55	 
	Section 8.03. Certain Rights of Trustee
	 	 	55	 
	Section 8.04. Trustee Not Responsible for Recitals, Dispositions of Securities or Application of Proceeds Thereof
	 	 	56	 
	Section 8.05. Trustee and Agents May Hold Securities; Collections; etc
	 	 	57	 
	Section 8.06. Money Held in Trust
	 	 	57	 
	Section 8.07. Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	57	 






(ii)









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.08. Conflicting Interests
	 	 	57	 
	Section 8.09. Trustee Eligibility
	 	 	58	 
	Section 8.10. Resignation and Removal; Appointment of Successor Trustee
	 	 	58	 
	Section 8.11. Acceptance of Appointment by Successor
	 	 	59	 
	Section 8.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	60	 
	Section 8.13. Preferential Collection of Claims Against Company
	 	 	60	 
	Section 8.14. Reports By Trustee
	 	 	60	 
	ARTICLE 9 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	61	 
	Section 9.01. Satisfaction and Discharge of Indenture
	 	 	61	 
	Section 9.02. Application of Trust Money
	 	 	61	 
	Section 9.03. Reinstatement
	 	 	61	 
	ARTICLE 10 AMENDMENTS; SUPPLEMENTS AND WAIVERS
	 	 	62	 
	Section 10.01. Without Consent of Holders
	 	 	62	 
	Section 10.02. With Consent of Holders
	 	 	63	 
	Section 10.03. Execution of Supplemental Indentures and Agreements
	 	 	64	 
	Section 10.04. Effect of Supplemental Indentures
	 	 	64	 
	Section 10.05. Conformity with Trust Indenture Act
	 	 	64	 
	Section 10.06. Reference in Securities to Supplemental Indentures
	 	 	64	 
	Section 10.07. Notice of Supplemental Indentures
	 	 	64	 
	ARTICLE 11 [INTENTIONALLY OMITTED]
	 	 	65	 
	ARTICLE 12 NOTE GUARANTEES
	 	 	65	 
	Section 12.01. Guarantee
	 	 	65	 
	Section 12.02. Continuing Guarantee; No Right of Set-Off; Independent Obligation
	 	 	65	 
	Section 12.03. Guarantee Absolute
	 	 	66	 
	Section 12.04. Right to Demand Full Performance
	 	 	68	 
	Section 12.05. Waivers
	 	 	68	 
	Section 12.06. The Guarantors Remain Obligated in Event the Company Is No Longer Obligated to Discharge Indenture Obligations
	 	 	69	 
	Section 12.07. Limitation on Guarantor Liability
	 	 	69	 
	Section 12.08. Guarantee is in Addition to Other Security
	 	 	69	 
	Section 12.09. No Bar to Further Actions
	 	 	69	 
	Section 12.10. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies
	 	 	70	 
	Section 12.11. Trustee’s Duties; Notice to Trustee
	 	 	70	 
	Section 12.12. Successors and Assigns
	 	 	70	 
	Section 12.13. Release of Guarantee
	 	 	70	 
	Section 12.14. Execution of Guarantee
	 	 	71	 
	ARTICLE 13 MISCELLANEOUS
	 	 	71	 
	Section 13.01. Conflict with Trust Indenture Act
	 	 	71	 
	Section 13.02. Notices
	 	 	71	 
	Section 13.03. Disclosure of Names and Addresses of Holders
	 	 	73	 
	Section 13.04. Compliance Certificates and Opinions
	 	 	73	 
	Section 13.05. Acts of Holders
	 	 	74	 
	Section 13.06. Benefits of Indenture
	 	 	75	 
	Section 13.07. Legal Holidays
	 	 	75	 
	Section 13.08. Governing Law
	 	 	75	 






(iii)









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.09. No Adverse Interpretation of Other Agreements
	 	 	75	 
	Section 13.10. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	75	 
	Section 13.11. Successors and Assigns
	 	 	75	 
	Section 13.12. Multiple Counterparts
	 	 	75	 
	Section 13.13. Separability Clause
	 	 	76	 
	Section 13.14. Independence of Covenants
	 	 	76	 
	Section 13.15. Schedules and Exhibits
	 	 	76	 
	Section 13.16. Effect of Headings and Table of Contents
	 	 	76	 
	 
	 	 	 	 
	EXHIBIT A Form of Security
	 	 	A-1	 
	EXHIBIT B Form of Supplemental Indenture
	 	 	B-1	 
	EXHIBIT C Form of Guarantee
	 	 	C-1	 






(iv)









 





CROSS-REFERENCE TABLE




	 	 	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	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)	 	 	13.03	 
	 

	 	(c)	 	 	13.03	 
	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)	 	 	N.A.	 
	 

	 	(c)(2)	 	 	N.A.	 
	 

	 	(c)(3)	 	 	N.A.	 
	 

	 	(d)	 	 	N.A.	 
	 

	 	(e)	 	 	N.A.	 
	 

	 	(f)	 	 	N.A.	 
	Section

	 	315(a)	 	 	8.01(b)	 
	 

	 	315(b)	 	 	8.02	 
	 

	 	315(c)	 	 	8.01(a)	 
	 

	 	315(d)	 	 	8.01(c)	 
	 

	 	315(d)(2)	 	 	8.01(c)	 
	 

	 	315(d)(3)	 	 	8.01(c)	 
	 

	 	315(e)	 	 	7.14	 
	Section

	 	316(a)(1)	 	 	7.12	 
	 

	 	316(a)(2)	 	 	N.A.	 
	 

	 	316(b)	 	 	7.08	 
	Section

	 	317(a)	 	 	7.03, 7.04(a)	 
	 

	 	317(b)	 	 	2.04	 
	Section

	 	318(c)	 	 	13.01	 








 




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





(v)









 





      THIS INDENTURE dated as of l, 2006 is among General Cable Corporation, a corporation duly
organized under the laws of the State of Delaware (the “Company”), the Guarantors (as defined
herein) and U.S. Bank National Association, a national banking association organized and existing
under the laws of the United States, 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 l% Senior Convertible Notes Due 2013.



ARTICLE
1

DEFINITIONS AND INCORPORATION BY REFERENCE




          Section 1.01. Definitions.




      “9.5% Notes” means the 9.5% Senior Notes due 2010 of the Company, issued pursuant to the
indenture dated as of November 24, 2003 among the Company, the Guarantors named therein, and U.S.
Bank National Association, as trustee.



      “Affiliate” means, with respect to any specified Person, (i) any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person; (ii) any other Person that owns, directly or indirectly, 10% or more of such
specified Person’s Capital Stock or any officer or director of any such specified Person or other
Person or, with respect to any natural Person, any Person having a relationship with such Person by
blood, marriage or adoption not more remote than first cousin; or (iii) any other Person 10% or
more of the Voting Stock of which is beneficially owned or held directly or indirectly by such
specified Person.



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



      “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 Guarantor, as the case
may be, 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 or a duly authorized committee thereof, as
applicable.



1









 





      “Business Day” means any weekday that is not a day on which banking institutions in the City
of New York are authorized or obligated by law, regulation or executive order to close or be
closed.



      “Capital Lease Obligation” of any Person means any obligation of such Person and its
Restricted Subsidiaries on a consolidated basis under any capital lease of real or personal
property which, in accordance with GAAP, is required to be recorded as a capitalized lease
obligation on the books of the lessee.



      “Capital Stock” in any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interest in (however designated)
corporate stock or other equity participations, including partnership interests, whether general or
limited, in such Person, including any Preferred Capital Stock and any right or interest which is
classified as equity in accordance with GAAP (other than debt securities convertible into Capital
Stock).



      “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.



      “Cash Equivalents” means (i) any evidence of Indebtedness, maturing not more than one year
after the date of acquisition, issued by the United States of America, or an instrumentality or
agency thereof, and guaranteed fully as to principal, premium, if any, and interest by the United
States of America, (ii) any certificate of deposit, maturing not more than one year after the date
of acquisition, issued by a commercial banking institution that is a member of the Federal Reserve
System and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment therein is made, of
“P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P, (iii) commercial
paper, maturing not more than one year after the date of acquisition, issued by a corporation
(other than an Affiliate or Subsidiary of the Company) organized and existing under the laws of the
United States of America with a rating, at the time as of which any investment therein is made, of
“P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P, (iv) any money market
deposit accounts issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000; provided that the short term debt of such commercial bank has a rating, at
the time of Investment, of “P-1” (or higher) according to Moody’s or “A-1” (or higher) according to
S&P, and (v) shares of money market mutual funds within the definition of Rule 2a-7 promulgated by
the SEC under the Investment Company Act of 1940, as amended.



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



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



      (1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have beneficial ownership of all shares that
such person has the right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of Voting Stock representing 50% or more of the total
voting power of all outstanding Voting Stock; or



      (2) the Company consolidates with, or merges with or into, another person (other than a wholly
owned Restricted Subsidiary) or the Company and/or one or more of its Restricted Subsidiaries sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all of the assets of
the Company and the Restricted Subsidiaries (determined on a consolidated basis) to any person
(other than the Company or a wholly owned Restricted Subsidiary), other than any such transaction where



2









 







immediately after such transaction the person or persons that “beneficially owned” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act) immediately prior to such transaction, directly or
indirectly, Voting Stock representing a majority of the total voting power of all outstanding
Voting Stock, “beneficially own or owns” (as so determined), directly or indirectly, Voting Stock
representing a majority of the total voting power of the outstanding Voting Stock of the surviving
or transferee person; or



      (3) during any consecutive two-year period, the continuing directors cease for any reason to
constitute a majority of the Board of Directors; or



      (4) the adoption of a plan of liquidation or dissolution of the Company.



      Notwithstanding the foregoing, it will not constitute a Change of Control if 100% of the
consideration for the Company’s Common Stock (excluding cash payments for fractional shares and
cash payments made in respect of dissenters’ appraisal rights) in the transaction or transactions
constituting the Change of Control consists of common stock and any associated rights listed on a
United States national securities exchange or quoted on a national automated dealer quotation
system, or which will be so traded or quoted when issued or exchanged in connection with the Change
of Control, and as a result of such transaction or transactions the Securities become convertible
solely into such common stock.



      “Closing Price” means, with respect to the Company’s Common Stock on any Trading Day, the
reported last sale price per share (or if no last sale price is reported, the average of the bid
and ask prices per share or, if more than one in either case, the average of the average bid and
the average ask prices per share) on such date reported by the New York Stock Exchange, or, if the
Company’s Common Stock is not listed on the New York Stock Exchange, as reported by the NASDAQ
Global Market, or, if the Company’s Common Stock is not quoted on the NASDAQ Global Market, as
reported by the principal national securities exchange on which the Company’s Common Stock is
listed, or if no such prices are available, the Closing Price per share shall be the fair value of
a share of Common Stock as reasonably determined by the Board of Directors (which determination
shall be conclusive and shall be evidenced by an Officer’s Certificate delivered to the Trustee).



      “Common Stock” means the Company’s common stock, par value $0.01 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.



      “Consolidated Equity” of any Person means (a) all amounts that would be shown as assets on a
consolidated balance sheet of such Person and its subsidiaries prepared in accordance with GAAP,
less (b) the amount thereof constituting goodwill and other intangible assets as calculated in
accordance with GAAP.



      “Continuing directors” means, as of any date of determination, any member of the Board of
Directors of the Company who was (a) a member of such Board of Directors on the date of this
Indenture



3









 







or (b) nominated for election or elected to such Board of Directors with the approval of a
majority of the continuing directors who were members of such board at the time of such nomination
or election.



      “Conversion Price” per share of Common Stock as of any day means the result obtained by
dividing (i) $1,000 by (ii) the then applicable Conversion Rate.



      “Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon
conversion, which rate shall be initially l shares of Common Stock for each $1,000 principal amount
of Securities, as adjusted from time to time pursuant to the provisions of this Indenture.



      “Conversion Reference Period” means:



      (1) for Securities that are converted during the one-month period prior to the Final Maturity
Date of the Securities, the 20 consecutive Trading Days preceding and ending on the Final Maturity
Date, subject to any extension due to a market disruption event; and



      (2) in all other instances, the 20 consecutive Trading Days beginning on the third Trading Day
following the Conversion Date.



      “Conversion Value” means the average of the Daily Conversion Values for each of the 20
consecutive Trading Days of the Conversion Reference Period.



      “Corporate Trust Office” means the office of the Trustee at which at any particular time the
trust created by this Indenture shall be administered, which office at the date of the execution of
this Indenture is located at l, Attention: l, or at any other time at such other address as the
Trustee may designate from time to time by notice to the Holders and the Company.



      “Credit Agreement” means the Second Amended and Restated Credit Agreement, dated as of
November 23, 2005, by and among General Cable Industries, Inc., as borrower, the Company and
certain other subsidiaries, as guarantors and/or additional borrowers, the lenders party thereto
from time to time, Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services,
Inc., as collateral agent, joint lead arranger, administrative agent, and swingline lender,
National City Business Credit, Inc., as syndication agent, Bank of America, N.A., as documentation
agent, UBS Securities LLC, as joint lead arranger, UBS AG, Stamford Branch, as issuing bank, and
Merrill Lynch Bank USA, as issuing bank, including any notes, guarantees, collateral and security
documents, instruments and agreements executed in connection therewith, as amended, amended and
restated, supplemented or otherwise modified from to time.



      “Daily Conversion Value” means, with respect to any Trading Day, for each $1,000 principal
amount of Securities, an amount equal to the product of (i) the applicable Conversion Rate and (ii)
the Volume Weighted Average Price per share of Common Stock on such Trading Day; provided that
after the consummation of a Change of Control in which the consideration is comprised entirely of
cash, the amount used in clause (ii) will be the cash price per share received by holders of Common
Stock in such Change of Control.



      “Daily Share Amount” means for each Trading Day during the Conversion Reference Period and for
each $1,000 principal amount of Securities surrendered for conversion, a number of shares (but in
no event less than zero) equal to (i) the amount of (a) the Volume Weighted Average Price per share
of Common Stock on such Trading Day multiplied by the applicable Conversion Rate less (b) $1,000;
divided by (ii) the Volume Weighted Average Price on such Trading Day multiplied by 20.



4









 





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



      “Disposition” means, for the purposes of the definition of “Surviving Person” only, with
respect to any Person, any merger, consolidation, amalgamation or other business combination
involving such Person (whether or not such Person is the Surviving Person) or the sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of such Person’s
assets.



      “Domestic Subsidiary” means any Subsidiary of the Company that was formed under the laws of
the United States or any state of the United States or the District of Columbia.



      “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.



      “Fair Market Value” means, with respect to any asset or property, the sale value that would be
obtained in an arm’s-length free market transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value
shall be determined by the Board of Directors of the Company acting in good faith and shall be
evidenced by a resolution of the Board of Directors.



      “Final Maturity Date” means November 15, 2013.



      “Fundamental Change” means the occurrence of a Change of Control or a Termination of Trading.



      “Fundamental Change Effective Date” means the date on which any Fundamental Change becomes
effective.



      “Fundamental Change Purchase Price” of any Security, means 100% of the principal amount of the
Security to be purchased plus accrued and unpaid interest, if any, to, but excluding, the
Fundamental Change Purchase Date.



      “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 (i) with respect to periodic reporting requirements, from time to
time, and (ii) otherwise on the date hereof.



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



      “Guarantee” means the guarantee by any Guarantor of the Company’s Indenture Obligations.



      “Guarantor” means any Subsidiary which is a guarantor of the Securities, including any Person
that is required after the Issue Date on the date of determination to execute a guarantee of the
Securities pursuant to this Indenture, and its successors and assigns, in each case, until the
Guarantee of such Person has been released in accordance with the provisions of this Indenture.




5










 





      “Hedging Obligations” means, with respect to any Person, the Obligations of such Person
under (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and similar agreements or arrangements and (2) foreign currency or commodity hedge,
swap, exchange and similar agreements (agreements referred to in this definition being referred to
herein as “Hedging Agreements”).



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



      “Indebtedness” means (without duplication), with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent:




     (1) every obligation of such Person for money borrowed;




     (2) every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the acquisition of
assets or business by such Person;




     (3) every reimbursement obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such Person;




     (4) every obligation of such Person issued or assumed as the deferred purchase price of
assets or services (but excluding (A) earnout or other similar obligations until such time
as the amount of such obligation is capable of being determined and its payment is probable,
(B) trade accounts payable incurred in the ordinary course of business and payable in
accordance with industry practices (including, so long as not treated as Indebtedness in
accordance with GAAP, trade payables subject to the payables extension facility), or (C)
other accrued liabilities arising in the ordinary course of business which are not overdue
or which are being contested in good faith);




     (5) every Capital Lease Obligation of such Person, including, without limitation, from
Sale/Leaseback Transactions;




     (6) every net obligation payable under Hedging Agreements of such Person;




     (7) every obligation of the type referred to in clauses (1) through (6) of another
Person and all dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as obligor,
guarantor or otherwise, the amount of such obligation being the maximum amount covered by
such guarantee or for which such Person is otherwise liable; and




     (8) every obligation of the type referred to in clauses (1) through (7) above of
another Person the payment of which is secured by the assets of that Person, the amount of
such obligation being deemed to be the lesser of (i) the Fair Market Value of such asset or
(ii) the amount of the obligation so secured.




     Indebtedness:




     (A) shall never be calculated taking into account any cash and Cash Equivalents held by
such Person;



6









 






     (B) shall not include obligations of any Person (1) arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds in the ordinary course of business, provided that such
obligations are extinguished within 5 Business Days of their incurrence, (2) resulting from
the endorsement of negotiable instruments for collection in the ordinary course of business
and consistent with past business practices and (3) under standby letters of credit to the
extent collateralized by cash or Cash Equivalents;




     (C) shall include the liquidation preference and any mandatory redemption payment
obligations in respect of any Redeemable Capital Stock or any Preferred Capital Stock of any
Restricted Subsidiary;




     (D) shall not include any liability for federal, provincial, state, local or other
taxes; and




     (E) shall not include obligations under performance bonds, performance guarantees,
surety bonds and appeal bonds, letters of credit or similar obligations, incurred in the
ordinary course of business.



      “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 are automatically deemed to be part of this Indenture by operation of
the TIA.



      “Indenture Obligations” means the obligations of the Company and any other obligor under this
Indenture or under the Securities, including any Guarantor, to pay principal of, premium, if any,
and interest when due and payable, and all other amounts due or to become due under or in
connection with this Indenture and the Securities and the performance of all other obligations to
the Trustee and the Holders under this Indenture and the Securities, according to the respective
terms hereof and thereof.



      “Interest Payment Date” means May 15 and November 15 of each year, commencing May 15, 2007.



      “Issue Date” means the date of this Indenture.



      “Lien” means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise),
privilege, security interest, assignment, deposit, arrangement, easement, hypothecation, claim,
preference, priority or other encumbrance upon or with respect to any property of any kind
(including any conditional sale, capital lease or other title retention agreement, any leases in
the nature thereof, and any agreement to give any security interest), real or personal, movable or
immovable, now owned or hereafter acquired. A Person shall be deemed to own subject to a Lien any
property which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease Obligation or other title retention agreement.



      “Market disruption event” means the occurrence or existence for more than one-half hour period
in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the New York
Stock Exchange or otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock, and such suspension or limitation occurs or exists at any time before
1:00 p.m. (New York City time) on such day.



7









 





      “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 or any
Guarantor, as the case may be, and in form and substance reasonably satisfactory to, 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. Notwithstanding the
foregoing, with respect to any Guarantor, the “Officer’s Certificate” may be executed by any one of
the Treasurer, Assistant Treasurer, Secretary or Assistant Secretary of the Guarantor, the
Guarantor’s general partner or the Guarantor’s member.



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



      “Pari Passu Indebtedness” means (a) any Indebtedness of the Company that is pari passu in
right of payment to the Securities, including, without limitation, the 9.5% Notes, and (b) with
respect to any Guarantee, Indebtedness which ranks pari passu in right of payment to such
Guarantee, including, without limitation, the guarantees with respect to the 9.5% Notes.



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



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



      “Principal” or “principal” of a debt security, including the Securities, means the principal
of the security plus, when appropriate, the premium, if any, on the security.



      “Prospectus” means the prospectus, dated l, 2006, filed with the SEC related to the
Securities.



      “Redeemable Capital Stock” means any Capital Stock that, either by its terms or by the terms
of any security into which it is convertible or exchangeable or otherwise, (1) is, or upon the
happening of an event or passage of time would be, required to be redeemed prior to the Final
Maturity Date, (2) is redeemable at the option of the holder of such Capital Stock at any time
prior to the Final Maturity Date (other than upon a Change of Control of the Company in
circumstances where the Holders of the Securities would have similar rights), or (3) is convertible
into or exchangeable for debt securities at any time prior to the Final Maturity Date at the option
of the holder of such Capital Stock.



      “Regular Record Date” means, with respect to each Interest Payment Date, the May 1 or November
1, as the case may be, immediately preceding such Interest Payment Date.



      “Restricted Subsidiary” means any Subsidiary of the Company that has not been designated by
the Company’s Board of Directors by a board resolution delivered to the Trustee under the indenture
for the 9.5% Notes as an unrestricted subsidiary pursuant to and in compliance with the terms of
the indenture governing the 9.5% Notes.



8









 





      “Revolving Credit Facility” means the senior secured revolving credit facility or facilities
referenced by or referred to in the Credit Agreement.



      “Sale/Leaseback Transaction” means an arrangement relating to property now owned or hereafter
acquired whereby the Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Subsidiary leases it from such Person.



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



      “Securities” means up to $360,000,000 aggregate principal amount of l% Senior Convertible
Notes due 2013, or any of them (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 any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such regulation is in effect on the date of this Indenture.



      “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
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.



      “Stock Price” means the price paid, or deemed paid, per share of the Company’s Common Stock in
connection with a Change of Control as determined pursuant to Section 4.01(j) hereof.



      “Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding voting
power of the Voting Stock of which is owned or controlled, directly or indirectly, by such Person
or by one or more other Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries of such Person, or (ii) any limited partnership of which such Person or any Subsidiary
of such Person is a general partner, or (iii) any other Person in which such Person, or one or more
other Subsidiaries of such Person, or such Person and one or more other Subsidiaries, directly or
indirectly, has more than 50% of the outstanding partnership or similar interests or has the power,
by contract or otherwise, to direct or cause the direction of the policies, management and affairs
of such Person.



      “Surviving Person” means, with respect to any Person involved in or that makes any
Disposition, the Person formed by or surviving such Disposition or the Person to which such
Disposition is made.



      “Termination of Trading” means any date on which the Company’s Common Stock (or other common
stock into which the Securities are then convertible) is not listed for trading on a United States
national securities exchange, quoted on a national automated dealer quotation system, or approved
for trading on an established automated over-the-counter trading market in the United States.



9









 





      “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 any day on which (i) there is no market disruption event and (ii) the New
York Stock Exchange is open for trading, or, if the Common Stock is not listed on the New York
Stock Exchange, any day on which the NASDAQ Global Market (formerly known as the NASDAQ National
Market) is open for trading, or, if the Common Stock is neither listed on the New York Stock
Exchange nor quoted on the NASDAQ Global Market, any day on which the principal national securities
exchange on which the Common Stock is listed is open for trading, or, if the Common Stock is not
listed on a national securities exchange, any Business Day. A “Trading Day” only includes those
days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard
closing time for regular trading on the relevant exchange or trading system.



      “Trading Price” of the Securities on any date of determination means, solely for the purposes
of Article 4, the average of the secondary market bid quotations obtained by the Trustee for $5.0
million principal amount of Securities at approximately 3:30 p.m., New York City time, on such
determination date from three nationally recognized securities dealers the Company selects, which
may include the Underwriters; provided that if three such bids cannot reasonably be obtained by the
Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the
Trustee cannot reasonably obtain at least one bid for $5.0 million principal amount of Securities
from a nationally recognized securities dealer, or in the reasonable judgment of the Company, the
bid quotations are not indicative of the secondary market value of the Securities, then the Trading
Price per $1,000 principal amount of Securities will be deemed to be less than 98% of the product
of the Closing Price of the Company’s Common Stock and the then applicable Conversion Rate per
$1,000 principal amount of Securities.



      “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and thereafter means the
successor.



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



      “Underwriters” means Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, UBS Investment Bank LLC, and
Wachovia Capital Markets, LLC.



      “U.S. Credit Facility” is one or more debt facilities providing for senior revolving credit
loans, senior term loans and/or letters of credit to the Company and/or one or more Domestic
Subsidiaries, as borrower or borrowers and guarantors thereunder (including, without limitation,
the Credit Agreement), as amended, amended and restated, supplemented, modified, refinanced,
replaced or otherwise restructured, in whole or in part from time to time, including increasing the
amount of available borrowings thereunder or adding other Domestic Subsidiaries as additional
borrowers and/or guarantors thereunder, with respect to all or any portion of the Indebtedness
under such facilities or any successor or replacement facilities and whether with the same or any
other agent, lender or group of lenders; provided, that no such debt facility that otherwise
complies with the definition shall cease to be a U.S. Credit Facility solely as a result of a
foreign subsidiary becoming a borrower or guarantor thereunder.



10









 





      “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.”



      “Volume Weighted Average Price” means such price per share of the Common Stock on any Trading
Day as displayed on Bloomberg (or any successor service) page BGC ‹equity› VAP in respect of the
period from 9:30 a.m. to 4:00 p.m., New York City time, on Such Trading Day; or, if such price is
not available, the Volume Weighted Average Price means the market value per share of the Common
Stock on such day as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company.



      “Voting Stock” 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).



               Section 1.02. Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section	 
	 
	 	 	 	 
	“Act”
	 	 	13.05	 
	“Additional Shares”
	 	 	4.01	 
	“Agent Members”
	 	 	2.01	 
	“Business Combination”
	 	 	4.10	 
	“Cash Percentage”
	 	 	4.13	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	4.02	 
	“Current Market Price”
	 	 	4.06	 
	“DTC”
	 	 	2.01	 
	“Defaulted Interest”
	 	 	2.16	 
	“Depositary”
	 	 	2.01	 
	“Determination Date”
	 	 	4.06	 
	“Distributed Securities”
	 	 	4.06	 
	“Distribution Notice”
	 	 	4.01	 
	“Event of Default”
	 	 	7.01	 
	“ex-date”
	 	 	4.06	 
	“ex-dividend date”
	 	 	4.01	 
	“Expiration Date”
	 	 	4.06	 
	“Expiration Time”
	 	 	4.06	 
	“Fundamental Change Conversion Notice”
	 	 	4.01	 
	“Fundamental Change Purchase Date”
	 	 	3.01	 
	“Fundamental Change Purchase Notice”
	 	 	3.01	 
	“in connection with”
	 	 	4.10	 
	“Issuer Fundamental Change Notice”
	 	 	3.01	 
	“Legend”
	 	 	2.13	 
	“Make Whole Premium”
	 	 	4.01	 
	“Notice of Default”
	 	 	7.01	 
	“Outstanding”
	 	 	2.09	 
	“Paying Agent”
	 	 	2.03	 
	“Primary Registrar”
	 	 	2.03	 






11









 






	 	 	 	 	 
	Term	 	Defined in Section	 
	“Purchased Shares”
	 	 	4.06	 
	“purchases”
	 	 	4.06	 
	“record date”
	 	 	4.06	 
	“Registrar”
	 	 	2.03	 
	“Remaining Shares”
	 	 	4.13	 
	“Rights”
	 	 	4.06	 
	“Rights Plan”
	 	 	4.06	 
	“Special Payment Date”
	 	 	2.16	 
	“Spinoff Securities”
	 	 	4.06	 
	“Spinoff Valuation Period”
	 	 	4.06	 
	“tender offer”
	 	 	4.06	 
	“tendered shares”
	 	 	4.06	 
	“Triggering Distribution”
	 	 	4.06	 






               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:



      “obligor” on the indenture securities means the Company 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



12









 






     (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 “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 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. The Securities are being offered and sold by the Company
pursuant to a Purchase Agreement dated l, 2006 among the Company, the Guarantors, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Credit Suisse Securities (USA) LLC as representatives of
the Underwriters named in Schedule A thereto, in transactions registered under the Securities Act.



      (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 a Global Security, 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



13









 




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 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 $360,000,000, 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 officer, 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.



14









 





      (e) Each Security shall be dated the date of its authentication.



      (f) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of up to $360,000,000 upon receipt of a Company Order. 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 the date on which each original issue
of Securities is to be authenticated.



      (g) 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 an
Affiliate of the Company.



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



      (i) In case the Company or any Guarantor, pursuant to Article 6, shall, in a single
transaction or through a series of related transactions, be consolidated or merged with or into any
other Person or shall sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, and the successor Person resulting
from such consolidation or surviving such merger, or into which the Company or such Guarantor shall
have been merged, or the Successor Person which shall have participated in the sale, assignment,
conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article 6, any of the Securities authenticated or
delivered prior to such consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the Successor Person, be exchanged for
other Securities executed in the name of the Successor Person with such changes in phraseology and
form as may be appropriate, but otherwise in substance of like tenor as the Securities surrendered
for such exchange and of like principal amount; and the Trustee, upon the request of the Successor
Person, shall authenticate and deliver Securities as specified in such request for the purpose of
such exchange. If Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 2.02 in exchange or substitution for or upon registration
of transfer of any Securities, such Successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.



               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.



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      (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 Section 5.01 and Article 9).



      (c) The Company hereby initially designates the Trustee as Paying Agent, 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 on, any Securities, the Company shall deposit a sum
sufficient to pay such principal or interest so becoming due. Subject to Section 9.02, 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 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 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.



      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, premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal and premium, if any, or interest has become
due and payable shall promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in the New York Times and The Wall Street Journal (national edition), and mail to each such Holder,
notice that such money remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such notification, publication and mailing, 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 shares
of Common Stock held by the Conversion Agent for the delivery of Common Stock when due upon
conversion, and will notify the Trustee of any default by the Company in making any such delivery.



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While any such default continues, the Trustee may require a Conversion Agent to deliver all shares
of Common Stock held by it to the Trustee. The Company at any time may require a Conversion Agent
to pay all money held by 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 for the money. 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 shares 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 reasonably 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 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, 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(e) 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).



      (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.



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      (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, any Guarantor and the Trustee, such security or indemnity,
in each case, as may be required by them to save each of them harmless, then, in the absence of
notice to the Company, any Guarantor 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 and each Guarantor shall execute a replacement
Guarantee.



      (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 and Guarantee 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 any 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 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.



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               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 (other than the Company, a Subsidiary of the Company or an Affiliate of
any thereof) holds in respect of the Outstanding Securities on a Fundamental Change Purchase Date
or the Final Maturity Date money sufficient to pay the principal of (including premium, if any) and
accrued interest on Securities (or portions thereof) payable on that date, then on and after such
Fundamental Change Purchase Date or Final Maturity Date, as the case may be, such Securities (or
portions thereof, as the case may be) shall cease to be Outstanding and interest on them shall
cease to accrue.



      (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 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 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



19









 




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:




     (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.




     (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 90 days after receiving such
notice or becoming aware that the Depositary has ceased to be a “clearing agency”, (B) the
Company executes and delivers to the Trustee an Officer’s Certificate to the effect that
such Global Security shall be so exchangeable or (C) an Event of Default has occurred and is
continuing with respect to the Securities and the Registrar has received a request from the
Depositary. Any Global Security exchanged pursuant to subclause (A) above shall be so
exchanged in whole and not in part, and any Global Security exchanged pursuant to subclauses
(B) or (C) above may be exchanged in whole or from time to time in part 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.



20









 






     (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, 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 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 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



21









 




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.



      The calculation of the Fundamental Change Purchase Price, Conversion Rate, Conversion Price
and each other calculation to be made hereunder shall be the obligation of the Company, except for
such calculations required by clause (1) of Section 4.01(a), which will be determined by the
Conversion Agent, on behalf of the Company. All calculations made by the Company as contemplated
pursuant to this Section 2.15 or otherwise pursuant to the Securities shall be made in good faith
and shall be final and binding on the Company and the Holders absent manifest error. The Trustee,
Paying Agent and Conversion Agent shall not be obligated to recalculate, recompute or confirm any
such calculations made by the Company, and the Trustee is entitled to conclusively rely upon the
accuracy of the Company’s calculation without independent verification thereof. The Company shall
provide a schedule of its calculations to the Trustee upon the Trustee’s request, certified by an
officer, promptly after making such calculations.



               Section 2.16. Payment of Interest; Interest Rights Preserved.



      Interest on any Security which is payable, and is punctually paid or duly provided for, on the
Final Maturity Date of such interest 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 on any Security which is payable, but is not punctually paid or duly provided
for, on the Stated Maturity of such interest, 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 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



22









 




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 accrued and unpaid, and to accrue, which were carried by such
other Security.



               Section 2.17. Computation of Interest.



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



ARTICLE 3




PURCHASE




               Section 3.01. Purchase of Securities by the Company for Cash at Option of the Holder Upon a Fundamental Change.



      (a) If a Fundamental Change occurs prior to the Final Maturity Date, each Holder of a Security
shall have the right, at the option of the Holder, to require the Company to purchase for cash all
or any portion of the Securities of such Holder equal to $1,000 principal amount (or any integral
multiple thereof) at the Fundamental Change Purchase Price, on the date specified by the Company
that is 30 Business Days after the later of the Fundamental Change Effective Date and the date the
Issuer Fundamental Change Notice is given by the Company pursuant to subsection 3.01(b) (the
“Fundamental Change Purchase Date”).



      (b) On or before the 30th day after the Company knows or reasonably should know of the
occurrence of a Fundamental Change, the Company shall mail a written notice of the Fundamental
Change and of the resulting purchase right to the Trustee, Paying Agent and to each Holder of
record of Securities (an “Issuer Fundamental Change Notice”). The Issuer Fundamental Change 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 (or expected 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 3.01;




     (4) the Fundamental Change Purchase Date;



23









 






     (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 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
3.01;




     (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 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 Issuer Fundamental Change Notice
in the Company’s name and at the Company’s expense; provided that, in all cases, the text of such
Issuer Fundamental Change Notice shall be prepared by the Company. In connection with the delivery
of the Issuer Fundamental Change Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the Issuer Fundamental Change
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.



      (c) A Holder may exercise its rights specified in Section 3.01(a) upon delivery of a written
notice (which shall be in substantially the form 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 the Securities are in
certificated form, 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 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



24









 






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 3.01, 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 3.01(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 3.02(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.



      (d) The Company shall deposit cash at the time and in the manner as provided in Section 3.03,
sufficient to pay the aggregate Fundamental Change Purchase Price of all Securities to be purchased
pursuant to this Section 3.01.



               Section 3.02. Effect of Fundamental Change Purchase Notice.



      (a) Upon receipt by any Paying Agent of a properly completed Fundamental Change Purchase
Notice from a Holder, 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 in Section 3.02(b) or the Securities have previously been submitted for conversion)
thereafter be entitled to receive the Fundamental Change Purchase Price with respect to such
Security, subject to the occurrence of the Fundamental Change Effective Date. Such Fundamental
Change Purchase Price shall be paid to such Holder promptly, but no later than two Business Days,
following the later of (1) the Fundamental Change Purchase Date (provided that the conditions in
Section 3.01 have been satisfied) and (2) the time of delivery of such Security to a Paying Agent
by the Holder thereof in the manner required by Section 3.01(c). Securities in respect of which a
Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted into
shares of Common Stock pursuant to Article 4 on or after the date of the delivery of such
Fundamental Change Purchase Notice unless such Fundamental Change Purchase Notice has first been
validly withdrawn in accordance with Section 3.02(b) with respect to the Securities to be
converted.




25










 





      (b) A Fundamental Change Purchase Notice may be withdrawn by means of a written notice
(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) of withdrawal delivered by the Holder to
a Paying Agent at any time prior to the close of business on the Business Day immediately prior to
the Fundamental Change Purchase Date, specifying (1) the principal amount of the Security or
portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being submitted, (2) if the
Securities are in certificated form, the certificate numbers of the Security being withdrawn in
whole or in part (or if the Securities are not certificated, such written notice must comply with
the procedures of the Depositary) and (3) the portion of the principal amount of the Security that
will remain subject to the Fundamental Change Purchase Notice, which portion must be a principal
amount of $1,000 or an integral multiple thereof.



          Section 3.03. Deposit of Fundamental Change Purchase Price.




      (a) On or before 10:00 a.m. New York City time on the Business Day following the applicable
Fundamental Change Purchase Date, the Company shall deposit with the Trustee or with a 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 of money (in immediately available funds
if deposited on or after such Fundamental Change Purchase Date), sufficient to pay the aggregate
Fundamental Change Purchase Price of all the Securities or portions thereof that are to be
purchased as of the Fundamental Change Purchase Date.



      (b) If a Paying Agent or the Trustee holds on, or the Business Day following, the Fundamental
Change Purchase Date, in accordance with the terms hereof, an amount of money sufficient to pay the
Fundamental Change Purchase Price of any Security (or portion thereof) for which a Fundamental
Change Purchase Notice has been tendered and not withdrawn in accordance with this Indenture then,
immediately following the applicable Fundamental Change Purchase Date, whether or not the Security
is delivered to the Paying Agent, such Security shall cease to be outstanding, interest, shall
cease to accrue, and the rights of the Holder in respect of the Security shall terminate (other
than the right to receive the Fundamental Change Purchase Price upon delivery of the Security as
aforesaid).



      (c) The Paying Agent will promptly return to the respective Holders thereof any Securities
with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with
this Indenture.



      (d) If a Fundamental Change Purchase Date falls after a Regular Record Date and on or before
the related Interest Payment Date, then interest on the Securities payable on such Interest Payment
Date will be payable to the Holders in whose names the Securities are registered at the close of
business on such Regular Record Date.



          Section 3.04. Repayment to the Company.




      To the extent that the aggregate amount of cash deposited by the Company pursuant to Section
3.03 exceeds the aggregate Fundamental Change Purchase Price of the Securities or portions thereof
that the Company is obligated to purchase, then promptly after the Fundamental Change Purchase Date
the
Trustee or a Paying Agent, as the case may be, shall return any such excess cash to the
Company, or if such money is then held by the Company in trust, it shall be discharged from the
trust.



26









 





          Section 3.05. Securities Purchased In Part.




      Any Security that is to be purchased only in part shall be surrendered at the office of a
Paying Agent, and promptly after the Fundamental Change Purchase Date, as the case may be, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of such authorized denomination or
denominations as may be requested by such Holder (which must be equal to $1,000 principal amount or
any integral multiple thereof), 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.



          Section 3.06. Compliance With Securities Laws Upon Purchase of Securities.




      In connection with any offer to purchase Securities under Section 3.01, the Company shall (a)
comply with the provisions of the tender offer rules under the Exchange Act which may then be
applicable, (b) file the related 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 in connection with such offer to purchase or purchase of Securities, all so as to permit the
rights of the Holders and obligations of the Company under Sections 3.01 through 3.04 to be
exercised in the time and in the manner specified therein. 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 3.07. Purchase of Securities In Open Market.




      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. The Company may purchase Securities in the open market or by tender at any price or pursuant
to private agreements.



ARTICLE 4




CONVERSION




          Section 4.01. Conversion Privilege and Conversion Rate.




      (a) Subject to the obligation and the right of the Company to pay some or all of the
conversion consideration in cash in accordance with Section 4.13, and upon compliance with the
provisions of this Article 4, at the option of the Holder thereof, any Security or portion thereof
that is an integral multiple of $1,000 principal amount may be converted into fully paid and
nonassessable shares
(calculated as to each conversion to the nearest 1/10,000th of a share) of Common Stock prior
to the close of business on the Business Day immediately preceding the Final Maturity Date or such
earlier date set forth in this Article 4, unless previously purchased by the Company pursuant to
Section 3.01, at the Conversion Rate in effect at such time, determined as hereinafter provided,
and subject to the adjustments described below, only under the following circumstances:




     (1) during any calendar quarter commencing after March 31, 2007, and only during such
calendar quarter, if, as of the last day of the immediately preceding calendar quarter, the
Closing Price per share of the Common Stock for at least 20 Trading Days in the period of
the 30 consecutive Trading Days ending on the last Trading Day of such preceding calendar
quarter was



27









 






more than 130% of the applicable Conversion Price on the last day of such
preceding fiscal quarter;




     (2) if the Company distributes to all holders of Common Stock any rights entitling them
to purchase, for a period expiring within 45 days of distribution, Common Stock, or
securities convertible into Common Stock, at less than, or having a Conversion Price per
share less than, the then current Closing Price per share of the Common Stock;




     (3) if the Company distributes to all holders of Common Stock assets, cash, debt
securities or rights to purchase the Company’s securities, which distribution has a per
share value as determined by the Board of Directors exceeding 15.0% of the Closing Price per
share of the Common Stock on the Trading Day immediately preceding the declaration date for
such distribution;




     (4) if the Company is a party to any transaction or event (including, but not limited
to, any consolidation, merger or binding share exchange, other than changes resulting from a
subdivision or combination) pursuant to which all or substantially all shares of the Common
Stock would be converted into cash, securities or other property;




     (5) if a Fundamental Change occurs;




     (6) at any time during the period beginning on October 15, 2013 and ending at the close
of business on the Business Day immediately preceding the Final Maturity Date; or




     (7) on any Business Day during the five Business Day period after any five consecutive
Trading Day period in which the Trading Price per $1,000 principal amount of Securities, as
determined following a request by a Holder in accordance with the procedures described in
Section 4.01(e)(ii), for each day of that period was less than 98% of the product of the
Closing Price of the Common Stock and the then applicable Conversion Rate per $1,000
principal amount of Securities.



      (b) In the case of a distribution contemplated by clauses (2) and (3) of Section 4.01(a), the
Company shall notify Holders and the Trustee at least 20 days prior to the ex-dividend date
(defined below) for such distribution (the “Distribution Notice”); provided that if the Company
distributes rights pursuant to a stockholder rights agreement, it shall give the Distribution
Notice on the first Business Day immediately after the Company is required to give notice generally
to its stockholders pursuant to such stockholder rights agreement if such date is less than 20 days
prior to the date of such distribution. Once the Company has given the Distribution Notice,
Holders may surrender their Securities for conversion at any time until the earlier of the close of
business on the last Business Day preceding the ex-dividend date or the Company’s announcement that
such distribution will not take place. In the event of a distribution contemplated by clauses (2)
and (3) of Section 4.01(a), Holders may not convert the Securities if the
Holders will otherwise participate in such distribution. The “ex-dividend date” is the first
date upon which a sale of the Common Stock does not automatically transfer the right to receive the
relevant distribution from the seller of the Common Stock to its buyer. The Company will provide
written notice to the Conversion Agent as soon as reasonably practicable of any anticipated or
actual event or transaction that will cause or causes the Securities to become convertible pursuant
to clauses (2) or (3) of Section 4.01(a).



      (c) In the case of a transaction contemplated by clause (4) of Section 4.01(a) (regardless of
whether the transaction constitutes a Fundamental Change), the Company will notify Holders and the
Trustee as promptly as practicable following the date the Company publicly announces such
transaction



28









 







(but in no event less than 15 days prior to the anticipated effective date of such
transaction, or, if such transaction also constitutes a Fundamental Change, no later than the date
the Issuer Fundamental Change Notice is provided). Holders may surrender Securities for conversion
at any time from and after the date which is 15 days prior to the anticipated effective date of
such transaction until the earlier of the date which is 15 days after the actual effective date of
such transaction or the date of the Company’s announcement that such transaction will not take
place.



      (d) In the case of a Fundamental Change, the Company shall notify the Holders of Securities
and the Trustee at least 15 days prior to the anticipated effective date of any Fundamental Change
that the Company knows or reasonably should know will occur (a “Fundamental Change Conversion
Notice”). If the Company does not know, or should not reasonably know, that a Fundamental Change
will occur until the date that is within 15 days before the anticipated effective date of such
Fundamental Change, the Company shall deliver a Fundamental Change Conversion Notice to the Holders
and the Trustee promptly after the Company has knowledge of such Fundamental Change. Holders may
surrender Securities for conversion at any time beginning 15 days before the anticipated effective
date of a Fundamental Change and until the Trading Day immediately preceding the Fundamental Change
Purchase Date (unless the Company shall fail to make the Fundamental Change Purchase Price payment
when due in accordance with Article 3, in which case the conversion right shall terminate at the
close of business on the date such failure is cured and such Security is purchased).




(e) (i) For each calendar quarter of the Company, beginning with the calendar quarter ending
March 31, 2007, the Conversion Agent, on behalf of the Company, will determine, on the first
Business Day following the last Trading Day of such calendar quarter, whether the Securities
are convertible pursuant to clause (1) of Section 4.01(a), and, if so, will notify the
Trustee (to the extent the Trustee is not also serving as the Conversion Agent) and the
Company in writing.




     (ii) The Trustee shall have no obligation to determine the Trading Price of the
Securities and whether the Securities are convertible pursuant to clause (7) of Section
4.01(a) unless the Company has requested such determination; and the Company shall have no
obligation to make such request unless a Holder of the Securities provides the Company with
reasonable evidence that the Trading Price per $1,000 principal amount of Securities would
be less than 98% of the product of the Closing Price of the Common Stock and the then
applicable Conversion Rate per $1,000 principal amount of Securities. At such time, the
Company shall instruct the Trustee to determine the Trading Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the Trading Price
per $1,000 principal amount of the Securities is greater than 98% of the product of the
Closing Price of the Common Stock and the then applicable Conversion Rate per $1,000
principal amount of the Securities.



      (f) The conversion rights pursuant to this Article 4 shall commence on the Issue Date of the
Securities and expire at the close of business on the Business Day immediately preceding the Final
Maturity Date, but shall be exercisable only during the time periods specified with respect to each
circumstance pursuant to which the Securities become convertible, subject, in the case of
conversion of any Global Security, to any Applicable Procedures. If a Security is convertible as a
result of a Fundamental Change, such conversion right shall commence and terminate as set forth in
Section 4.01(d). Securities in respect of which a Fundamental Change Purchase Notice has been
delivered, if convertible pursuant to this Article 4, may not be surrendered for conversion
pursuant to this Article 4 prior to a valid withdrawal of such Fundamental Change Notice, in
accordance with the provisions of Article 3.



      (g) Provisions of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.



29









 





      (h) A Holder of Securities is not entitled to any rights of a holder of Common Stock until
such Holder has converted its Securities into Common Stock, and only to the extent such Securities
are deemed to have been converted into Common Stock pursuant to this Article 4.



      (i) The Conversion Rate shall be adjusted in certain instances as provided in Section 4.01(j)
and Section 4.06.



      (j) If on or prior to the Final Maturity Date, there shall have occurred a transaction
described in clauses (1), (2) or (4) of the definition of a Change of Control, and a Holder elects
to convert its Securities “in connection with” such Change of Control transaction, the Company
shall pay a “Make Whole Premium” by increasing the applicable Conversion Rate for the Securities
surrendered for conversion by a number of additional shares of Common Stock as provided below (the
“Additional Shares”). The number of Additional Shares per $1,000 principal amount of Securities
constituting the Make Whole Premium shall be determined by reference to the table below, based on
the Fundamental Change Effective Date of such Change of Control and the Stock Price; provided that
if the Stock Price or Fundamental Change Effective Date are not set forth on the table: (i) if the
actual Stock Price on the Fundamental Change Effective Date is between two Stock Prices on the
table or the actual Fundamental Change Effective Date is between two Fundamental Change Effective
Dates on the table, the Make Whole Premium will be determined by a straight-line interpolation
between the Make Whole Premiums set forth for the higher and lower Stock Prices and the two
Fundamental Change Effective Dates on the table based on a 365-day year, as applicable, (ii) if the
actual Stock Price on the Fundamental Change Effective Date exceeds $  l  per share of Common Stock,
subject to adjustment as set forth herein, no Make Whole Premium will be paid, and (iii) if the
actual Stock Price on the Fundamental Change Effective Date is less than $  l  per share of Common
Stock, subject to adjustment as set forth herein, no Make Whole Premium will be paid. If Holders of
Common Stock receive only cash in the Change of Control transaction, the Stock Price shall be the
cash amount paid per share of Common Stock in connection with the Change of Control transaction.
Otherwise, the Stock Price shall be equal to the average Closing Price of Common Stock over the 10
consecutive Trading Day period ending on the Trading Day immediately preceding, and excluding, the
applicable Fundamental Change Effective Date.



      Make Whole Premium Upon a Fundamental Change (Number of Additional Shares)



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Effective Date
	Stock Price on	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fundamental Change	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date	 	11/15/2006	 	11/15/2007	 	11/15/2008	 	11/15/2009	 	11/15/2010	 	11/15/2011	 	11/15/2012	 	11/15/2013
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






      The Stock Prices set forth in the first column of the table above will be adjusted as of
any date on which the Conversion Rate of the Securities is adjusted other than an adjustment
pursuant to the Make Whole Premium described above. The adjusted Stock Prices will equal the Stock
Prices applicable



30









 







immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the 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 the table above will be adjusted in the same manner as the
Conversion Rate as set forth in Section 4.06 hereof, other than as a result of an adjustment to the
Conversion Rate by adding the Make Whole Premium as described above.



      Notwithstanding the foregoing, in no event will the total number of shares of Common Stock
issuable upon conversion of a Security exceed  l  shares per $1,000 principal amount of Securities,
subject to proportional adjustment in the same manner as the Conversion Rate as set forth in
clauses (1) through (4) of Section 4.06(a) hereof.



      (k) By delivering the amount of cash and/or the number of shares of Common Stock issuable on
conversion to the Trustee, the Company will be deemed to have satisfied its obligation to pay the
principal amount of the Securities so converted and its obligation to pay accrued and unpaid
interest attributable to the period from the most recent Interest Payment Date through the
Conversion Date (which amount will be deemed paid in full rather than cancelled, extinguished or
forfeited).



      (l) Notwithstanding anything else contained herein, the Securities shall not become subject to
conversion by reason of a merger, consolidation, or other transaction effected with one of the
Company’s direct or indirect Subsidiaries for the purpose of changing the Company’s state of
incorporation to any other state within the United States or the District of Columbia.



          Section 4.02. Conversion Procedure.




      (a) To convert a Security, a Holder must (1) complete and manually sign the conversion notice
on the back of the Security (which shall be in substantially the form attached as Exhibit A under
the heading “Conversion Notice”) and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Conversion Agent, (4) pay an amount equal to the interest as required by Section
4.02(c) and (5) pay all transfer or similar taxes, if required pursuant to Section 4.04. The date
on which the Holder of a Security satisfies all of those requirements is the “Conversion Date” with
respect to such Security. Upon the conversion of a Security, the Company will pay the cash and
deliver the shares of Common Stock, as applicable, without service charge, as promptly as
practicable after the later of the Conversion Date and the date that all calculations necessary to
make such payment and delivery have been made, but in no event later than 10 Business Days after
the later of those dates. Anything herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such Securities may be surrendered for
conversion in accordance with clauses (3), (4) and (5) of this Section 4.02(a) and the Applicable
Procedures as in effect from time to time.



      (b) The person in whose name the shares of Common Stock are issuable upon conversion shall be
deemed to be a holder of record of such Common Stock on the later of (i) the Conversion Date, (ii)
the expiration of the period in which the Company may elect to deliver cash in lieu of shares of
Common Stock, or (iii) if the Company elects to deliver cash in lieu of some, but not all, of such
shares of Common Stock, the date on which the amount of cash issuable per Security has been
determined; provided, however, that no surrender of a Security on any Conversion Date when the
stock transfer books of the Company shall be closed shall be effective to constitute the person or
persons entitled to receive the shares of Common Stock upon conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next succeeding day on
which such stock transfer books are open; provided further that



31









 







such conversion shall be at the
Conversion Rate in effect on the Conversion Date as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such person shall no longer be a Holder of such
Security. Except as set forth in this Indenture, no payment or adjustment will be made for
dividends or distributions declared or made on shares of Common Stock issued upon conversion of a
Security prior to the issuance of such shares of Common Stock.



      (c) Holders of 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 will receive the semiannual interest payable on such Securities on
the corresponding Interest Payment Date notwithstanding the conversion, and such interest shall be
payable on the corresponding Interest Payment Date to the Holder of the Security as of the close of
business on the Regular Record Date. Upon surrender of any such Securities for conversion after
the close of business on such Regular Record Date, such Securities shall also 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) in connection with a conversion following the
Regular Record Date preceding the Final Maturity Date; (2) 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 (3) to the extent of any overdue interest, if any overdue
interest exists at the time of conversion with respect to such Security. Except as otherwise
provided in this Section 4.02(c), no payment or adjustment will be made for accrued and unpaid
interest on a converted Security. Accrued and unpaid interest shall be deemed paid in full, rather
than cancelled, extinguished or forfeited. The Company shall not be required to convert any
Securities which are surrendered for conversion without payment of interest as required by this
Section 4.02(c).



      (d) Subject to Section 4.02(c), nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a Regular Record Date to receive
the interest payable on such Security on the related Interest Payment Date in accordance with the
terms of this Indenture and the Securities. If a Holder converts more than one Security at the
same time, the amount of cash to be paid and the number of shares of Common Stock issuable upon the
conversion, if any (and the amount of any cash in lieu of fractional shares pursuant to Section
4.03) shall be based on the aggregate principal amount of all Securities so converted.



      (e) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without
service charge, a new Security or Securities of authorized denominations in an aggregate principal
amount equal to, and in exchange for, the unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount of such part is an
integral multiple of $1,000 and the principal amount of such Security to remain outstanding after
such conversion is equal to $1,000 or any integral multiple of $1,000 in excess thereof.



      (f) Upon the Company’s determination that Holders are or will be entitled to convert their
Securities in accordance with the provisions of this Article 4, the Company will promptly issue a
press release or otherwise publicly disclose this information and use its reasonable efforts to
post such information on the Company’s website.



          Section 4.03. Fractional Shares.




      The Company will not issue fractional shares of Common Stock upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares that shall be issuable upon conversion shall be computed on the basis of the
aggregate



32









 







principal amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. In lieu of any fractional shares, the Company will pay an amount in cash
equal to the applicable portion of the arithmetic average of the Volume Weighted Average Price of
the Common Stock for each of the 20 consecutive Trading Days of the Conversion Reference Period,
rounding to the nearest whole cent.



          Section 4.04. Taxes on Conversion.




      If a Holder converts a Security, the Holder shall pay any transfer, stamp or similar taxes or
duties related to the issue or delivery of shares of Common Stock upon such conversion. In
addition, the Holder shall pay any such tax which is due because the Holder requests the shares to
be issued in a name other than the Holder’s name. The Holder shall also pay any such tax with
respect to cash received in lieu of fractional shares. The Conversion Agent may refuse to deliver
the certificate representing the Common Stock being issued in a name other than the Holder’s name
until the Conversion Agent receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holder’s name. Nothing herein shall preclude any
tax withholding required by law or regulation.



          Section 4.05. Company To Provide Common Stock.




      (a) The Company shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a sufficient number of
shares of Common Stock to permit the conversion of all outstanding Securities into shares of Common
Stock.



      (b) All shares of Common Stock delivered upon conversion of the Securities shall be newly
issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive or similar rights and free of any lien or adverse
claim as the result of any action by the Company.



      (c) The Company will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any,
and will list or cause to have listed such shares of Common Stock on the New York Stock Exchange,
or each national securities exchange or over the counter market or such other market on which the
Common Stock is then listed or quoted.



          Section 4.06. Adjustment of Conversion Rate.




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




     (1) If the Company shall pay a dividend or make a distribution to all holders of
outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect
immediately prior to the record date for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased so that the same shall equal
the rate determined by multiplying the Conversion Rate in effect immediately prior to such
record date by a fraction of which the numerator shall be the sum of the number of shares of
Common Stock outstanding at the close of business on such record date plus the total number
of shares of Common Stock constituting such dividend or other distribution and of which the
denominator shall be the number of shares of Common Stock outstanding at the close of
business on such record date. Such adjustment shall be made successively whenever any such
dividend or distribution is made and shall become effective immediately after such record
date. For the purpose of this Section 4.06 and otherwise in this Indenture, the number of
shares of Common Stock at any time outstanding



33









 






shall not include shares held in the treasury
of the Company. The Company will not pay any dividend or make any distribution on Common
Stock held in the treasury of the Company. If any dividend or distribution of the type
described in this clause is declared but not so paid or made, the Conversion Rate shall
again be adjusted to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.




     (2) If the Company shall subdivide its outstanding Common Stock into a greater number
of shares, or combine its outstanding Common Stock into a smaller number of shares, the
Conversion Rate in effect immediately prior to the day upon which such subdivision or
combination becomes effective shall be, in the case of a subdivision of Common Stock,
proportionately increased and, in the case of a combination of Common Stock, proportionately
reduced. Such adjustment shall be made successively whenever any such subdivision or
combination of the Common Stock occurs and shall become effective immediately after the date
upon which such subdivision or combination becomes effective.




     (3) If the Company shall issue any rights to all holders of its outstanding Common
Stock entitling them (for a period expiring within 45 days after such distribution) to
subscribe for or purchase shares of Common Stock (or securities convertible into Common
Stock) at a price per share (or having a Conversion Price per share) less than the Current
Market Price per share of Common Stock (as determined in accordance with clause (8) of this
Section 4.06(a)) on the record date for the determination of stockholders entitled to
receive such rights or warrants, the Conversion Rate in effect immediately prior thereto
shall be adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close of business
on such record date plus the number of additional shares of Common Stock offered (or into
which the convertible securities so offered are convertible) and of which the denominator
shall be the number of shares of Common Stock outstanding at the close of business on such
record date plus the number of shares which the aggregate offering price of the total number
of shares of Common Stock so offered for subscription or purchase (or the aggregate
conversion price of the convertible securities so offered for subscription or purchase,
which shall be determined by multiplying the number of shares of Common Stock issuable upon
conversion of such convertible securities by the Conversion Price per share of Common Stock
pursuant to the terms of such convertible securities) would purchase at the Current Market
Price
per share of Common Stock on such record date. Such adjustment shall be made
successively whenever any such rights are issued, and shall become effective immediately
after such record date. To the extent that shares of Common Stock (or securities
convertible into Common Stock) are not delivered after the expiration of such rights, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had
the adjustments made upon the issuance of such rights been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. If such rights are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if the record date for the determination of stockholders entitled to
receive such rights had not been fixed. In determining whether any rights entitle the
stockholders to subscribe for or purchase shares of Common Stock at a price less than the
Current Market Price per share of Common Stock and in determining the aggregate offering
price of the total number of shares of Common Stock so offered, there shall be taken into
account any consideration received by the Company for such rights and any amount payable on
exercise or conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.




     (4) If the Company shall make a dividend or other distribution to all holders of its
Common Stock of shares of its Capital Stock, other than Common Stock, or evidences of



34









 






Indebtedness or other assets (including securities) of the Company (excluding (x) any
issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3), (y)
dividends and distributions in connection with a reclassification, change, consolidation,
merger, combination, liquidation, dissolution, winding up, sale or conveyance resulting in a
change in the conversion consideration pursuant to Section 4.10 and (z) any dividend or
distribution paid exclusively in cash for which an adjustment was made pursuant to Section
4.06(a)(6)) (the “Distributed Securities”), then in each such case (unless the Company
distributes such Distributed Securities for distribution to the Holders of Securities on
such dividend or distribution date (as if each Holder had converted such Security into
Common Stock immediately prior to the record date with respect to such distribution)) the
Conversion Rate in effect immediately prior to the record date fixed for the determination
of stockholders entitled to receive such dividend or distribution shall be adjusted so that
the same shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to such record date by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock on such record date and of which the
denominator shall be the Current Market Price per share on such record date less the fair
market value (as determined by reference to the Current Market Price of the Distributed
Securities) on such record date of the portion of the Distributed Securities so distributed
applicable to one share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding at the close of business on such record date). Such adjustment
shall be made successively whenever any such distribution is made and shall become effective
immediately after the record date for the determination of stockholders entitled to receive
such distribution. In the event that such dividend or distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.




          If the then Fair Market Value (as so determined) of the portion of the Distributed
Securities so distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price per share of the Common Stock on such record date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each holder of a Security
shall have the right to receive upon conversion the amount of Distributed Securities so
distributed that such Holder would have received had such Holder converted each Security on
such record date. If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 4.06(a)(4) 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
Current Market Price of the Common Stock.




          Notwithstanding the foregoing, if the securities distributed by the Company to all
holders of its Common Stock consist of Capital Stock of, or similar equity interests in, a
Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion
Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders
of the Securities, so that the same shall be equal to the rate determined by multiplying the
Conversion Rate in effect on the record date fixed for the determination of stockholders
entitled to receive such distribution by a fraction, the numerator of which shall be the sum
of (A) the average Closing Price of one share of Common Stock over the 10 consecutive
Trading Day period commencing on and including the fifth Trading Day after the date on which
ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ
Global Market or such other U.S. national or regional exchange or market on which the Common
Stock is then listed or quoted (such consecutive Trading Day period shall be defined as the
“Spinoff Valuation Period”) and (B) the product of (i) the average Closing Price over the
Spinoff Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff
Securities distributed in respect of one share of Common Stock and the denominator of which
shall be the average Closing Price of



35









 






one share of Common Stock over the Spinoff Valuation
Period, such adjustment to become effective immediately prior to the opening of business on
the fifteenth Trading Day after the date on which ex-dividend trading commences; provided,
however, that the Company may in lieu of the foregoing adjustment elect to make adequate
provision so that each Holder of Securities shall have the right to receive upon conversion
thereof the amount of such Spinoff Securities that such Holder of Securities would have
received if such Securities had been converted on the record date with respect to such
distribution.




     (5) With respect to any rights or warrants (the “Rights”) that may be issued or
distributed pursuant to any rights plan that the Company implements after the date of this
Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision
of this Section 4.06 to the extent that such Rights Plan is in effect at the time of any
conversion, the Holders of Securities will receive, with respect to the shares of Common
Stock issued upon conversion, the Rights described therein (whether or not the Rights have
separated from the Common Stock at the time of conversion), subject to the limitations set
forth in and in accordance with any such Rights Plan; provided that if, at the time of
conversion, however, the Rights have separated from the shares of Common Stock in accordance
with the provisions of the Rights Plan and the Holders would not be entitled to receive any
rights in respect of the shares of Common Stock issuable upon conversion of the Securities
as a result of the timing of the Conversion Date, the Conversion Rate will be adjusted as if
the Company distributed to all holders of Common Stock Distributed Securities as provided in
the first paragraph of clause (4) of this Section 4.06(a), subject to appropriate
readjustment in the event of the expiration, redemption, termination or repurchase of the
Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the
requirements set forth in the immediately preceding sentence of this paragraph shall not
constitute a distribution of rights or warrants pursuant to this Section 4.06(a). Other
than as specified in this clause (5) of this Section 4.06(a), there will not be any
adjustment to the Conversion Rate as the result of the issuance of any Rights, the
distribution of separate certificates representing such Rights, the exercise or redemption
of such Rights in accordance with any Rights Plan or the termination or invalidation of any
Rights.




     (6) If the Company shall, by dividend or otherwise, at any time distribute (a
“Triggering Distribution”) to all holders of its Common Stock a payment consisting
exclusively of cash (excluding any dividend or distribution in connection with the
liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary), the Conversion Rate shall
be increased so that the same shall equal the rate determined by multiplying such Conversion
Rate in effect immediately prior to the close of business on the record date for such
Triggering Distribution (a “Determination Date”) by a fraction, the numerator of which shall
be such Current Market Price per share of the Common Stock on the Determination Date and the
denominator of which shall be the Current Market Price per share of the Common Stock on the
Determination Date less the amount of such Triggering Distribution applicable to one share
of Common Stock (determined on the basis of the number of shares of Common Stock outstanding
at the close of business on the Determination Date), such increase to become effective
immediately prior to the opening of business on the day following the date on which the
Triggering Distribution is paid. If the amount of such Triggering Distribution is equal to
or greater than the Current Market Price per share of the Common Stock on the Determination
Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder of a Security shall have the right to receive upon conversion, the amount of cash so
distributed that such Holder would have received had such Holder converted each Security on
such Determination Date. In the event that such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then
be in effect if such divided or distribution had not been declared.



36









 






     (7) If any tender offer made by the Company or any of its Subsidiaries for all or any
portion of Common Stock shall expire, then, if the tender offer shall require the payment to
stockholders of consideration per share of Common Stock having a Fair Market Value
(determined as provided below) that exceeds the Closing Price per share of Common Stock on
the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have
been made pursuant to such tender offer (as it may be amended) (the last time at which such
tenders could have been made on the Expiration Date is hereinafter sometimes called the
“Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior to the close
of business on the Expiration Date by a fraction of which the numerator shall be the sum of
(A) the Fair Market Value of the aggregate consideration payable to stockholders based on
the acceptance (up to any maximum specified in the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted,
up to any such maximum, being referred to as the “Purchased Shares”) and (B) the product of
the number of shares of Common Stock outstanding (less any Purchased Shares and excluding
any shares held in the treasury of the Company) at the Expiration Time and the Closing Price
per share of Common Stock on the Trading Day next succeeding the Expiration Date and the
denominator of which shall be the product of the number of shares of Common Stock
outstanding (including Purchased Shares but excluding any shares held in the treasury of the
Company) at the Expiration Time multiplied by the Closing Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Date, such increase to become
effective immediately prior to the opening of business on the day following the Expiration
Date. In the event that the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable law from effecting any
or all such purchases or any or all such purchases are rescinded, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would have been in effect based upon the
number of shares actually purchased, if any. If the application of this clause (7) of
Section 4.06(a) to any tender offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer under this clause (7).




     For purposes of this Section 4.06, the term “tender offer” shall mean and include both
tender offers and exchange offers, all references to “purchases” of shares in tender offers
(and all similar references) shall mean and include both the purchase of shares in tender
offers and the
acquisition of shares pursuant to exchange offers, and all references to “tendered
shares” (and all similar references) shall mean and include shares tendered in both tender
offers and exchange offers.




     (8) For the purpose of any computation under this Section 4.06(a), the current market
price (the “Current Market Price”) per share of Common Stock or any Distributed Security on
any date shall be deemed to be the average of the Closing Prices for the 10 consecutive
Trading Days ending on the earlier of (A) the Determination Date or the Expiration Date, as
the case may be, with respect to distributions or tender offers under this Section 4.06(a)
or (B) the “ex-date” with respect to distributions, issuances or other events requiring such
computation under this Section 4.06.



      (b) In any case in which this Section 4.06 shall require that an adjustment be made following
a record date, a Determination Date or Expiration Date, as the case may be, established for the
purposes specified in this Section 4.06, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the certificate described in
Section 4.08) issuing to the Holder of any Security converted after such record date, Determination
Date or Expiration Date the shares of Common Stock and other Capital Stock of the Company issuable
upon such conversion over and above the shares of Common Stock and other Capital Stock of the
Company (or other cash, property



37









 







or securities, as applicable) issuable upon such conversion only
on the basis of the Conversion Rate prior to adjustment; and, in lieu of any cash, property or
securities the issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company of the right to
receive such cash, property or securities. If any distribution in respect of which an adjustment
to the Conversion Rate is required to be made as of the record date, Determination Date or
Expiration Date therefore is not thereafter made or paid by the Company for any reason, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such
record date had not been fixed or such record date, Determination Date or Expiration Date had not
occurred.



      (c) For purposes of this Section 4.06, “record date” shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock have the right to
receive any cash, securities or other property or in which the Common Stock (or other applicable
security) is exchanged or converted into any combination of cash, securities or other property, the
date fixed for determination of stockholders entitled to receive such cash, security or other
property (whether or not such date is fixed by the Board of Directors or by statute, contract or
otherwise).



      (d) For purposes hereof, the term “ex date” means (i) when used with respect to any dividend
or distribution, the first date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Current Market Price was obtained without the
right to receive such dividend or distribution; and (ii) when used with respect to any tender offer
or exchange offer, the first date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Current Market Price was obtained after the
expiration time of such tender offer or exchange offer (as it may be amended or extended).



      (e) If one or more event occurs requiring an adjustment be made to the Conversion Rate for a
particular period, adjustments to the Conversion Rate shall be determined by the Company’s Board of
Directors to reflect the combined impact of such Conversion Rate adjustment events, as set out in
this Section 4.06, during such period.



      (f) Notwithstanding the provisions set forth in Section 4.06(a), in no event shall the total
number of shares of Common Stock issuable upon conversion of a Security exceed lshares per $1,000
principal amount of Securities, subject to proportional adjustment in the same manner as the
Conversion Rate as set forth in clauses (1) through (4) of Section 4.06(a).



          Section 4.07. No Adjustment.




      (a) No adjustment in the Conversion Rate shall be required if Holders may participate in the
transactions set forth in Section 4.06 above (to the same extent as if the Securities had been
converted into shares of Common Stock immediately prior to such transactions) without converting
the Securities held by such Holders.



      (b) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Rate as last adjusted; provided,
however, that any adjustments which would be required to be made but for this Section 4.07(b) shall
be carried forward and taken into account in any subsequent adjustment. All calculations under
this Article 4 shall be made to the nearest cent or to the nearest one ten thousandth of a share,
as the case may be, with one half cent and 0.00005 of a share, respectively, being rounded upward.



      (c) No adjustment in the Conversion Rate shall be required for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for a change in the par
value or
a change to no par value of the Common Stock.



38









 





      (d) To the extent that the Securities become convertible into the right to receive cash, no
adjustment need be made thereafter as to the cash.



      (e) No adjustment in the Conversion Rate shall be required with respect to accrued and unpaid
interest on the Securities.



      (f) Except as otherwise provided herein, the Conversion Rate will not be adjusted for the
issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or
carrying the right to purchase Common Stock or any such security.



          Section 4.08. Notice of Adjustment.




      Whenever the Conversion Rate or conversion privilege is required to be adjusted pursuant to
this Indenture, the Company shall promptly mail, or cause the Trustee or Conversion Agent to mail
(as provided below), to Holders a notice of the adjustment and file with the Trustee an Officer’s
Certificate briefly stating the facts requiring the adjustment, the adjusted Conversion Rate and
the manner of computing it. Upon receipt by it of such notice, and at the written request of the
Company, the Trustee or Conversion Agent will promptly mail such notice to Holders of Securities at
the Company’s expense. Failure to mail such notice or any defect therein shall not affect the
validity of any such adjustment. Unless and until the Trustee shall receive an Officer’s
Certificate setting forth an adjustment of the Conversion Rate, the Trustee may assume without
inquiry that the Conversion Rate has not been adjusted and that the last Conversion Rate of which
it has knowledge remains in effect.



          Section 4.09. Notice of Certain Transactions.




      In the event that there is a dissolution or liquidation of the Company, the Company shall mail
to Holders and file with the Trustee a notice stating the proposed effective date. The Company
shall mail such notice at least 20 days before such proposed effective date. Failure to mail such
notice or any defect therein shall not affect the validity of any transaction referred to in this
Section 4.09.



          Section 4.10. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.




      (a) If any of following events occur (each, a “Business Combination”), namely:




     (1) any recapitalization, reclassification or change of the Common Stock, other than
(A) a change in par value, or from par value to no par value, or from no par value to par
value, or (B) as a result of subdivision or a combination,




     (2) a consolidation, merger or combination of the Company with another Person, or




     (3) a sale, lease or other transfer to another Person of consolidated assets of the
Company and its Subsidiaries substantially as an entirety, or




     (4) any statutory share exchange of the Company with another person,


in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as
in force at the date of execution of such supplemental indenture if such supplemental indenture is
then required to so


39









 






comply) providing that the Holders of the Securities then outstanding will be
entitled thereafter to convert such Securities into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) which they would
have owned or been entitled to receive upon such Business Combination had such Securities been
converted into Common Stock immediately prior to such Business Combination; provided that Holders
shall not be entitled to receive a Make Whole Premium if such Holder does not convert its
Securities “in connection with” (as defined below) the relevant Fundamental Change. In the event
holders of Common Stock have the opportunity to elect the form of consideration to be received in
such Business Combination, the Company shall make adequate provision whereby the Holders of the
Securities shall have a reasonable opportunity to determine the form of consideration into which
all of the Securities, treated as a single class, shall be convertible from and after the effective
date of such Business Combination. Such determination shall be (i) based on the weighted average
of elections made by Holders of the Securities who participate in such determination, (ii) subject
to any limitations to which all of the holders of the Common Stock are subject, such as pro rata
reductions applicable to any portion of the consideration payable in such Business Combination and
(iii) conducted in such a manner as to be completed by the date which is the earlier of (a) the
deadline for elections to be made by stockholders of the Company, and (b) two Trading Days prior to
the anticipated effective date of the Business Combination. The Company shall provide notice of the
opportunity to determine the form of such consideration, as well as notice of the determination
made by Holders of the Securities (and the weighted average of elections), by issuing a press
release or providing other notice deemed appropriate by the Company, and by providing a copy of
such notice to the Trustee. In the event the effective date of the Business Combination is delayed
more than 10 days beyond the initially anticipated effective date, Holders of the Securities shall
be given the opportunity to make subsequent similar determinations in regard to such delayed
effective date. Such supplemental indenture shall
provide for adjustments of the Conversion Rate and other appropriate numerical thresholds which
shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Rate
provided for in this Article 4. If, in the case of any such Business Combination, the stock or
other securities and assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such Business Combination, then such supplemental
indenture shall also be executed by such other corporation and shall contain such additional
provisions to protect the interests of the Holders of the Securities as the Board of Directors
shall reasonably consider necessary by reason of the foregoing, including to the exten
t practicable
the provisions providing for the repurchase rights set forth in Article 3 hereof.




      For purposes of this Article 4, a conversion of Securities will be deemed to be “in connection
with” a Fundamental Change if the notice of conversion is received by the Conversion Agent from and
including the date that is 10 Trading Days prior to the anticipated effective date of the
Fundamental Change and prior to and including the close of business on the Business Day prior to
the Fundamental Change Purchase Date.



      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, 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 4.10 shall similarly apply to successive Business
Combinations.



      The Company shall not become a party to any Business Combination unless its terms are
consistent in all material respects with the provisions of this Section 4.10.



40









 





      None of the provisions of this Section 4.10 shall affect the right of a Holder of Securities
to convert its Securities into Common Stock prior to the effective date of a Business Combination.



      If this Section 4.10(a) applies to any event or occurrence, Section 4.06 hereof shall not
apply.



      (b) In the event the Company shall execute a supplemental indenture pursuant to this Section
4.10, the Company shall promptly file with the Trustee (1) an Officer’s Certificate briefly stating
the reasons therefore, the kind or amount of shares of stock or other securities or property
(including cash) receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, combination, consolidation, merger, sale or conveyance,
any adjustment to be made with respect thereto and that all conditions precedent have been complied
with and (2) an Opinion of Counsel that all conditions precedent thereto and hereunder have been
complied with, and shall promptly mail notice thereof to all Holders. Failure to mail such notice
or any defect therein shall not affect the validity of such transaction and such supplemental
indenture.



          Section 4.11. Trustee’s Disclaimer.




      (a) The Trustee shall have no duty to determine when an adjustment under this Article 4 should
be made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be protected in relying
upon, an Officer’s Certificate and Opinion of Counsel, including the Officer’s Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.08.
The Trustee makes no
representation as to the validity or value of any securities or assets issued upon conversion
of Securities, and the Trustee shall not be responsible for the Company’s failure to comply with
any provisions of this Article 4, including, without limitation, whether or not a Supplemental
Indenture is required to be executed.



      (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.10, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officer’s Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.10.



          Section 4.12. Voluntary Increase.




      The Company from time to time may increase the Conversion Rate, to the extent permitted by law
and subject to stockholder approval requirements, if any, of any relevant national securities
exchange or automated quotation system, by any amount for any period of time of at least 20 days,
in which case, the Company will provide at least 15 days’ notice of such increase. In addition,
the Company may increase the Conversion Rate as the Board of Directors deems advisable to avoid or
diminish income tax to holders of shares of Common Stock in connection with a dividend or
distribution of stock, or rights to acquire stock, or from any event treated as such for income tax
purposes.



      Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common
Stock issuable upon conversion of a Security exceed  l  shares per $1,000 principal amount, subject
to proportional adjustment in the same manner as the Conversion Rate as set forth in clauses (1)
through (4) of Section 4.06(a) hereof.



41









 





          Section 4.13. Payment of Cash in Lieu of Common Stock.




      (a) In lieu of delivery of some or all of the shares of Common Stock otherwise issuable upon
notice of conversion of any Securities, Holders surrendering Securities for conversion shall
receive for each $1,000 principal amount of Securities surrendered: (A) cash in an amount equal to
the lesser of (1) $1,000 and (2) the Conversion Value; and (B) if the Conversion Value is greater
than $1,000, a number of shares of Common Stock (the “Remaining Shares”) equal to the sum of the
Daily Share Amounts for each of the 20 consecutive Trading Days in the Conversion Reference Period,
appropriately adjusted to reflect stock splits, stock dividends, combinations or similar events
occurring during the Conversion Reference Period, subject to the Company’s right to deliver cash in
lieu of all or a portion of such Remaining Shares as set forth in Section 4.13(b). The Company
will deliver such cash and any shares of Common Stock, together with any cash payable for
fractional shares, to such Holder in accordance with Section 4.02(a).



      (b) The Company may elect to pay cash to the Holders of Securities surrendered for conversion
in lieu of all or a portion of the Common Stock otherwise issuable pursuant to Section 4.13(a). In
such event, on any day prior to the first Trading Day of the applicable Conversion Reference
Period, the Company may specify a percentage of the Daily Share Amount that will be settled in cash
(the “Cash Percentage”). If the Company elects to specify a Cash Percentage, the amount of cash
that the Company will deliver in respect of each Trading Day in the applicable Conversion Reference
Period will equal the product of: (1) the Cash Percentage, (2) the Daily Share Amount for such
Trading Day and (3) the Volume Weighted Average Price of the Company’s Common Stock on such Trading
Day (provided that
after the consummation of a Change of Control in which the consideration is comprised entirely
of cash, the amount used in this clause (3) will be the cash price per share received by holders of
Common Stock in such Change of Control). The number of shares that the Company shall deliver in
respect of each Trading Day in the applicable Conversion Reference Period will be a percentage of
the Daily Share Amount equal to 100% minus the Cash Percentage. If the Company does not specify a
Cash Percentage by the start of the applicable Conversion Reference Period, the Company shall
settle 100% of the Daily Share Amount for each Trading Day in the applicable Conversion Reference
Period with shares of Common Stock; provided, however, that the Company shall pay cash in lieu of
fractional shares otherwise issuable upon conversion of the Securities.



      (c) For the purposes of Sections 4.13(a) and (b), in the event that any of Conversion Value,
Daily Conversion Value, Daily Share Amounts, or Volume Weighted Average Price is not calculable for
all portions of the Conversion Reference Period, the Company’s Board of Directors shall in good
faith determine the values necessary to calculate the Conversion Value, Daily Conversion Value,
Daily Share Amounts, and Volume Weighted Average Price, as applicable.



ARTICLE 5




COVENANTS




          Section 5.01. Payment of Securities.




      (a) The Company shall promptly make all payments in respect of the Securities on the dates and
in the manner provided in the Securities and this Indenture. A payment of principal or interest
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. Subject to Section 4.02,
accrued and unpaid interest 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



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Regular Record Date for such interest at the office
or agency of the Company maintained for such purpose. Principal, the Fundamental Change Purchase
Price and interest, in each case if payable, shall be considered paid on the applicable date due if
on such date (or, in the case of the Fundamental Change Purchase Price, on the Business Day
following the applicable Fundamental Change Purchase Date) the Trustee or the Paying Agent holds,
in accordance with this Indenture, money sufficient to pay all such amounts then due. 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 date
payment of such amount, including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.



      (b) Payment of the principal of and 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
on any Certificated 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 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. SEC Reports




      (a) The Company and each Guarantor, as the case may be, shall deliver to the Trustee, within
15 days after it files them with the SEC, copies of all annual reports, quarterly reports and other
documents that the Company or any Guarantor files with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act; provided that any such reports and documents filed with the SEC pursuant to its
Electronic Data Gathering, Analysis and Retrieval system (or EDGAR) shall be deemed to be filed
with the Trustee. The Company also shall comply with the provisions of TIA Section 314(a).



      (b) 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 Company’s or
any Guarantor’s, as the case may be, compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee may assume
that any reports required to be filed under subsection (a) above have been filed with the SEC and
shall have no obligation to verify any such filing.



          Section 5.03. Compliance Certificates.




      The Company 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 December 31, 2006), an
Officer’s Certificate as to the signer’s knowledge of the Company’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



43









 







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 determined without regard to
any grace period or requirement of notice provided pursuant to the terms of this Indenture.



          Section 5.04. Further Instruments and Acts.




      Upon request of the Trustee, the Company and the 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 shall do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence and related rights and
franchises (charter and statutory) of the Company and each Restricted Subsidiary; provided,
however, that the Company shall not be required to preserve any such right or franchise or the
corporate existence of any such Restricted Subsidiary if the Board of Directors of the Company
shall determine that the preservation thereof is no longer necessary or desirable in the conduct of
the business of the Company and its Restricted Subsidiaries as a whole; and provided further,
however, that the foregoing shall not prohibit a sale, transfer or conveyance of a Restricted
Subsidiary or any of its assets in compliance with the terms of this Indenture.



          Section 5.06. [Intentionally Omitted].




          Section 5.07. Stay, Extension And Usury Laws.




      The Company and the 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 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. [Intentionally Omitted].




          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,



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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.



          Section 5.10. [Intentionally Omitted].




          Section 5.11. Note Guarantees.




      (a) If any Restricted Subsidiary (including any Restricted Subsidiary formed or acquired after
the Issue Date) shall become a borrower or guarantor under any U.S. Credit Facility, then such
Restricted Subsidiary shall (i) execute and deliver to the Trustee a supplemental indenture in form
and substance satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally Guarantee all of the Company’s obligations under the Securities and this Indenture
on the terms set forth in Article Twelve and (ii) deliver to the Trustee an Opinion of Counsel that
such supplemental indenture has been duly authorized, executed and delivered by such Restricted
Subsidiary and constitutes a legal, valid, binding and enforceable obligation of such Subsidiary;
provided, however, that if, at any time, the 9.5% Notes are not outstanding, all references in the
Indenture and the Securities to “Restricted Subsidiary” or “Restricted Subsidiaries” shall be
changed to, and deemed to be a reference to, “Subsidiary” and “Subsidiaries,” as applicable.



      (b) Notwithstanding the foregoing, each Guarantee by a Guarantor of the Securities shall
provide by its terms that it shall be automatically and unconditionally released and discharged
upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company’s Capital Stock in, or all or substantially all the assets of, such Guarantor, which
transaction is in compliance with the terms of this Indenture and pursuant to which transaction
such Guarantor is released from all guarantees, if any, by it of other Indebtedness of the Company
or any of its Subsidiaries or (ii) such Subsidiary ceasing to be a borrower or guarantor under any
U.S. Credit Facility or the 9.5% Notes (other than by reason of a payment under a guarantee by any
Subsidiary), or (iii) such Subsidiary ceasing to be a wholly owned Subsidiary of the Company.



ARTICLE 6




CONSOLIDATION; MERGER; SALE OF ASSETS




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




      (a) The Company shall not consolidate with or merge with or into (whether or not the Company
is the Surviving Person) any other entity and the Company shall not, and shall not cause or permit
any Restricted Subsidiary to, sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Company’s and the Restricted Subsidiaries’ assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) to any Person in a single
transaction or series of related transactions, unless:




     (1) either (A) the Company shall be the Surviving Person or (B) the Surviving Person
(if other than the Company) shall be a corporation or limited liability company organized
and validly existing under the laws of the United States of America or any State
thereof or the



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District of Columbia, and shall, in any such case, expressly assume by a
supplemental indenture, the due and punctual payment of the principal of, premium, if any,
and interest on all the Securities and the performance and observance of every covenant of
this Indenture to be performed or observed on the part of the Company;




     (2) immediately thereafter, on a pro forma basis after giving effect to such
transaction (and treating any Indebtedness not previously an obligation of the Company or
any Restricted Subsidiary in connection with or as a result of such transaction as having
been incurred at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing;




     Any Restricted Subsidiary may consolidate with, merge into or transfer all or part of
its assets to the Company or another Restricted Subsidiary.




     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise,
in a single transaction or series of transactions) of all or substantially all the assets of
one or more Restricted Subsidiaries the Capital Stock of which constitute all or
substantially all the assets of the Company shall be deemed to be the transfer of all or
substantially all the assets of the Company.



      (b) No Guarantor may sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the Surviving Person), another Person unless:




     (1) immediately after giving effect to that transaction, no Default or Event of Default
exists; and




     (2) in the case of a consolidation with or merger into another Person, either (i) such
Guarantor shall be the Surviving Person or (ii) the Surviving Person (if other than such
Guarantor) shall be a corporation, partnership, company or trust organized and validly
existing under the laws of the United States of America or any State thereof or the District
of Columbia, and shall, in any such case, expressly assume by a supplemental indenture
reasonably satisfactory to the Trustee all obligations of such Guarantor under its Guarantee
and the performance and observance of every covenant of this Indenture to be performed or
observed on the part of such Guarantor.



      (c) In connection with any consolidation, merger, transfer, lease or other disposition
contemplated hereby, the Company shall deliver, or cause to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, lease or other disposition and the
supplemental indenture in respect thereof comply with the requirements under this Indenture. In
addition, each Guarantor, in the case of a transaction described in Section 6.01(a), unless it is
the other party to the transaction or unless its Guarantee will be released and discharged in
accordance with its terms as a result of the transaction, will be required to confirm, by
supplemental indenture, that its Guarantee will continue to apply to the obligations of the Company
or the Surviving Person under this Indenture.



          Section 6.02. Successor Substituted.




      Upon any consolidation or merger of the Company or any Guarantor or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing in which the
Company or a Guarantor is not the Surviving Person, the Surviving Person shall succeed to, and be
substituted for, and



46









 







may exercise every right and power of, the Company under this Indenture and
the Securities or such Guarantor under this Indenture and the Guarantee of such Guarantor, as the
case may be, with the same effect as if such successor corporation had been named as the Company or
such Guarantor, as the case may be, therein; and thereafter except in the case of a lease, the
Company shall be discharged from all obligations and covenants under this Indenture and the
Securities and such Guarantor shall be discharged from all obligations and covenants under this
Indenture and the Guarantee of such Guarantor, as the case may be.



      For all purposes of this Indenture and the Securities, Subsidiaries of any Surviving Person
shall, upon such transaction or series of related transactions, become Restricted Subsidiaries
unless and until validly designated otherwise.



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) the Company shall fail to pay when due the Principal or any Fundamental Change
Purchase Price of any Security, including any Make Whole Premium, when the same becomes due
and payable whether at the Final Maturity Date, upon purchase, acceleration or otherwise; or




     (2) the Company shall fail to pay an installment of cash interest on any of the
Securities, which default continues for 60 days after the date when due; or




     (3) the Company shall fail to deliver when due all cash and any shares of Common Stock
deliverable upon conversion of the Securities, which failure continues for 15 days; or




     (4) the Company shall fail to deliver an Issuer Fundamental Change Notice within the
time required to provide such notice as set forth in Section 3.01(b) hereof; or




     (5) the Company or any Guarantor shall fail to perform or observe any other term,
covenant or agreement contained in the Securities or this Indenture for a period of 60 days
after receipt by the Company of a Notice of Default specifying such failure; or




     (6) a default or defaults under the terms of one or more instruments evidencing or
securing Indebtedness of the Company or any of the Restricted Subsidiaries having an
outstanding principal amount of greater than $50,000,000 individually or in the aggregate,
which default (a) is caused by a failure to pay at final maturity principal on such
Indebtedness within the applicable express grace period, (b) results in the acceleration of
such Indebtedness prior to its
express final maturity or (c) results in the commencement of judicial proceedings to
foreclose upon, or to exercise remedies under applicable law or applicable security
documents to take ownership of, the assets securing such Indebtedness; or



47









 






     (7) a Guarantee ceases to be in full force and effect or is declared to be null and
void and unenforceable or a Guarantee is found to be invalid or a Guarantor denies its
liability under its Guarantee or gives notice to that effect (other than by reason of
release of the Guarantor in accordance with the terms of the Indenture); or




     (8) a court having jurisdiction in the premises enters (x) a decree or order for relief
in respect of the Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable Bankruptcy Law or (y) a decree or order adjudging the
Company or any of its Significant Subsidiaries a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any of its Significant Subsidiaries under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any of its Significant Subsidiaries
or of any substantial part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or




     (9) (a) the Company or any of its Significant Subsidiaries commences a voluntary case
or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated a bankrupt or insolvent; or




     (b) the Company or any of its Significant Subsidiaries consents to the entry of
a decree or order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any applicable Bankruptcy
Law or to the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any of its Significant Subsidiaries; or




     (c) the Company or any of its Significant Subsidiaries files a petition or
answer or consent seeking reorganization or relief under any applicable federal or
state law; or




     (d) the Company or any of its Significant Subsidiaries consents to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or any of its Significant Subsidiaries or of any substantial part of their
property;




     (e) the Company or any of its Significant Subsidiaries makes an assignment for
the benefit of creditors; or




     (f) the Company or any of its Significant Subsidiaries admits in writing its
inability to pay its debts generally as they become due; or




     (g) the Company or any of its Significant Subsidiaries takes corporate action
in furtherance of any such action described in this Section 7.01(a)(9).



      (b) Notwithstanding Section 7.01(a) no Event of Default under clause (5) 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 (5) 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



48









 







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 10 Business Days after becoming aware of
the occurrence of a Default or Event of Default, written notice thereof.



          Section 7.02. Acceleration.




      If an Event of Default (other than an Event of Default specified in clause (8) or (9) 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,
and the Trustee at the request of such Holders shall, declare all unpaid principal of, premium, if
any, and accrued interest 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, premium, if any, and interest shall become due and payable immediately. If an
Event of Default specified in clause (8) or (9) 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, 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:



      (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 this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,




     (2) all overdue interest on all Outstanding Securities,




     (3) the principal of and premium, if any, on any Outstanding Securities 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; and



      (c) all Events of Default, other than the non-payment of principal of, premium, if any, 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.



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




      The Company and each Guarantor covenant that if



49









 





      (a) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 60 days, or



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


the Company and such 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 premium, if any, and interest, with interest upon the overdue principal and premium, if any,
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 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
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 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, including seeking recourse against any Guarantor pursuant to the
terms of any Guarantee, 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 therein, or to enforce any other
proper remedy, including, without limitation, seeking recourse against any Guarantor pursuant to
the terms of a Guarantee, 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.



          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, including any Guarantor, 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 premium, if any, and
interest 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;



50









 




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 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, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:




     FIRST: To the payment of all amounts due the Trustee under Section 8.07;




     SECOND: To the payment of the amounts then due and unpaid upon the Securities
for principal, premium, if any, and interest, 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,
premium, if any, and interest; 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.




      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;



51









 





      (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 a reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;



      (d) the Trustee for 15 days after its receipt of such notice, request and offer (and if
requested, provision) of indemnity has failed to institute any such proceeding; and



      (e) no direction inconsistent with such written request has been given to the Trustee during
such 15-day period by the Holders of a majority in principal amount of the Outstanding Securities;


it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture, any Security or any
Guarantee 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, any Security or any Guarantee, except in the manner provided in this Indenture and for
the equal and ratable benefit of all the Holders.




          Section 7.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.




      Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right based on the terms stated herein, which is absolute and unconditional, to receive payment
of the principal of, premium, if any, and (subject to Section 2.16) interest on such Security on
the Stated Maturities expressed in such Security (or, in the case of purchase pursuant to Article 3
hereof, on the
Fundamental Change Purchase Date and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such 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.



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          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.



          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
(including, without limitation, Section 7.07) or any Guarantee, expose the Trustee to
personal liability, 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 7.02, the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all outstanding Securities waive any
past Default hereunder and its consequences, except a Default:



      (a) in the payment of the principal amount, accrued and unpaid interest, Fundamental Change
Purchase Price, if any and as applicable, or to deliver Common Stock as required, with respect to
the Securities (which may only be waived with the consent of each Holder of the Securities
affected); or



      (b) 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.



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



          Section 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, premium, if any, or



53









 







interest 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 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.




      Subject to the provisions of TIA Sections 315(a) through 315(d):




     (a) if a Default or 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 its exercise thereof as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs;




     (b) except during the continuance of a Default or an Event of Default:




     (1) the Trustee need perform only those duties as are specifically set forth in
this Indenture and no covenants or obligations shall be implied in this Indenture
that are adverse to the Trustee; and




     (2) in the absence of bad faith or willful misconduct 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, the Trustee shall
examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture;




     (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 clause (b) 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


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conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture;






     (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) and (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 30 days after a Trust Officer of the Trustee receives notice of 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, premium, if any, 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 and TIA Sections 315(a) through 315(d):




     (a) the Trustee may rely and shall be 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 in accordance with such advice or Opinion of Counsel;




     (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
satisfactory to the Trustee against the costs, expenses and liabilities which might be
incurred therein;




55









 






     (e) the Trustee shall not be liable for any action taken 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 other than any liabilities arising out of the negligence, bad
faith or willful misconduct of the Trustee;




     (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 unless requested in writing to do so by the Holders of
not less than a majority in aggregate principal amount of the Securities then Outstanding;
provided that, if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable expenses of every such
investigation so requested by the Holders of not less than 25% in aggregate principal amount
of the Securities Outstanding shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be repaid by the Company upon demand; provided, further, 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;




     (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 Issuer or by any Holder of
Securities; and




     (i) the permissive rights of the Trustee enumerated herein shall not be construed as
duties of the Trustee.



          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 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, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder and that the statements made by it in any Statement of
Eligibility and Qualification on Form T-1 to be supplied to the Company will be true and accurate
subject to the qualifications set forth therein. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.



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




      The Trustee, any Paying Agent, Security Registrar 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, Security Registrar or such other
agent and, subject to TIA Sections 310 and 311, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar 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. Except for funds or securities
deposited with the Trustee pursuant to Article 9, the Trustee shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in Cash Equivalents in
accordance with the directions of the Company.



          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 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 also covenants and agrees 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, bad faith 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 shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee and each predecessor
Trustee. To secure the Company’s payment obligations in this Section 8.07, the Trustee shall have
a prior claim to Holders of Securities on all money or property held or collected by the Trustee
other than money or property held in trust for the benefit of the Holders of particular Securities.



          Section 8.08. Conflicting Interests.




The Trustee shall comply with the provisions of Section 310(b) of the TIA




57









 








          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
$100,000,000, 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 no later than 20 Business Days prior to the proposed
date of resignation. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee by written instrument executed by authority of the Board of Directors of the
Company, a copy of which shall be delivered to the resigning Trustee and a copy to the successor
trustee. If an instrument of acceptance by a successor trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee
may, at the expense of the Company, or any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper, appoint and prescribe a successor trustee.



      (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 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,



58









 




then, in any case, (i) the Company by a Board Resolution 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 resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor trustee and shall comply with the applicable requirements of Section
8.11. If, within 60 days after such resignation, 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 and supersede the
successor trustee appointed by the Company. 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 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 and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations. 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 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 $100,000,000 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



59









 







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 corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all 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 corporation shall be eligible under TIA
Section 310(a) and this Article 8 and shall have a combined capital and surplus of at least
$100,000,000 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 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.




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ARTICLE 9




SATISFACTION AND DISCHARGE OF INDENTURE




      Section 9.01. Satisfaction and Discharge of Indenture.



      This Indenture shall be discharged and shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities as expressly provided for
herein) as to all Outstanding Securities hereunder, and the Trustee, upon Company Request and at
the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:




     (a) either




     (1) all such Securities previously authenticated and delivered (except (A)
lost, stolen or destroyed Securities which have been replaced or paid as provided in
Section 2.08 or (B) all Securities whose payment has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust as provided in Sections 2.04 and 2.05) 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 at the Final Maturity Date or a
Fundamental Change Purchase Date, or upon conversion or otherwise, or have become
due and payable, whether at the Final Maturity Date or a Fundamental Change Purchase
Date, or upon conversion or otherwise.




     (b) Notwithstanding the satisfaction and discharge hereof, the obligations of the
Company to the Trustee under Section 8.07 and, if United States dollars shall have been
deposited with the Trustee pursuant to subclause (2) of clause (a) of this Section 9.01, the
obligations of the Trustee under Section 9.02 and the last paragraph of Section 2.04 shall
survive.



      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 (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of, premium, if any, and
interest 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 on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of



61









 







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 Guarantors and the Trustee may amend or supplement this Indenture or the
Securities or the Note Guarantees without notice to or consent of any Holder of a Security for the
purpose of:




     (1) evidencing a successor to the Company or any Guarantor and the assumption by that
successor of the Company’s or such Guarantor’s obligations under this Indenture, the
Securities and the Guarantees;




     (2) adding to the Company’s or any Guarantor’s covenants for the benefit of the Holders
or surrendering any right or power conferred upon the Company or any Guarantor;




     (3) securing the Company’s and any Guarantor’s obligations in respect of the
Securities;




     (4) adding a guarantor or guarantors of the Securities or releasing any Guarantor in
accordance with the terms of the Indenture;




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




     (6) complying with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA, as contemplated by this Indenture or
otherwise;




     (7) 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);




     (8) increasing the Conversion Rate, (A) in accordance with the terms of the Securities
or (B) provided that the increase will not adversely affect the interests of Holders;




     (9) curing any ambiguity, omission or inconsistency in this Indenture or correcting or
supplementing any defective provision contained in this Indenture;




     (10) allowing any Guarantor to execute a supplemental indenture and/or Guarantee with
respect to the Securities;




     (11) providing for uncertificated Securities in addition to certificated Securities;




     (12) conforming the Indenture to the description of the Securities provided for in the
Prospectus; or



62









 






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



      Section 10.02. With Consent of Holders.



      (a) The Company, the Guarantors and the Trustee may amend or supplement this Indenture, the
Securities and/or the Guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities (including consents obtained in connection
with a tender offer or exchange offer for Securities). However, without the written consent of
each Holder affected, an amendment, supplement or waiver may not:




     (1) alter the manner of calculation or rate of accrual of interest on any Security,
reduce the rate of interest on any Security or change the time of payment of any installment
of interest on any Security;




     (2) make any of the Securities payable in money or securities other than that stated in
the Securities;




     (3) change the Stated Maturity of any Security;




     (4) reduce the principal amount or Fundamental Change Purchase Price (including any
Make Whole Premium) payable with respect to any of the Securities;




     (5) make any change that adversely affects the rights of a Holder to convert any of the
Securities in any material respect;




     (6) make any change that adversely affects the rights of Holders to require the Company
to purchase Securities at the option of Holders in any material respect;




     (7) cause the Securities to become subordinate in right of payment to any other
Indebtedness of the Company, or cause each of the Guarantees to become subordinate in right
of payment to any other Indebtedness of such Guarantor, other than with respect to the
effective subordination of the Securities to the Revolving Credit Facility (but only to the
extent of the value of the assets securing the Revolving Credit Facility);




     (8) release any Guarantor from any of its obligations under its Guarantee or the
Indenture otherwise than in accordance with the terms hereof;




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




     (10) change the provisions in this Indenture that relate to modifying or amending this
Indenture or waiving any past Default.



      (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 or any Guarantor 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 when due the principal amount,
accrued and unpaid interest, or the Fundamental Change Purchase Price, if any and as applicable, or
to deliver Common Stock as required,



63









 







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 the written request of the Company and each Guarantor, if any, accompanied by a copy
of Board Resolutions authorizing the execution of any such supplemental indenture or Guarantee, and
upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee
shall join with the Company and each Guarantor in the execution of such supplemental indenture or
Guarantee.



      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 or Guarantee or agreement or instrument
relating to any Guarantee, 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 13.04, and (subject to TIA Sections 315(a) through 315(d) and Section
8.03(a) hereof) shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s
Certificate stating that the execution of such supplemental indenture, agreement or instrument (a)
is authorized or permitted by this Indenture and (b) does not violate the provisions of any
agreement or instrument evidencing any other Indebtedness of the Company, any Guarantor or any
other Restricted Subsidiary. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture, agreement or instrument which affects the Trustee’s own rights, duties or
immunities under this Indenture, any Guarantee 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 each Guarantor 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, any Guarantor 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 13.02,



64









 







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.



ARTICLE 11




[INTENTIONALLY OMITTED]




ARTICLE 12




NOTE GUARANTEES




      Section 12.01. Guarantee.



      For value received, each of the Guarantors, in accordance with this Article 12, hereby
absolutely, fully, unconditionally and irrevocably guarantees, jointly and severally with each
other and with each other Person which may become a Guarantor hereunder, to the Trustee and the
Holders, as if the Guarantors were the principal debtor, the punctual payment and performance when
due of all Indenture Obligations (which for purposes of this Guarantee shall also be deemed to
include all commissions, fees, charges, costs and other expenses (including reasonable legal fees
and disbursements of one counsel) arising out of or incurred by the Trustee or the Holders in
connection with the enforcement of this Guarantee).



      Section 12.02. Continuing Guarantee; No Right of Set-Off; Independent Obligation.



      (a) This Guarantee shall be a continuing guarantee of the payment and performance of all
Indenture Obligations and shall remain in full force and effect until the payment in full of all of
the Indenture Obligations and shall apply to any ultimate balance due or remaining unpaid to the
Trustee or the Holders in respect of the Indenture Obligations; and this Guarantee shall not be
considered as wholly or partially satisfied by the payment or liquidation at any time or from time
to time of any sum of money for the time being due or remaining unpaid to the Trustee or the
Holders. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend
to all amounts which constitute part of the Indenture Obligations and would be owed by the Company
under this Indenture and the Securities but for the fact that they are unenforceable, reduced,
limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving the Company.



      (b) Each Guarantor, jointly and severally, hereby guarantees that the Indenture Obligations
will be paid to the Trustee without set-off or counterclaim or other reduction whatsoever (whether
for taxes, withholding or otherwise) in lawful currency of the United States of America.



      (c) Each Guarantor, jointly and severally, guarantees that the Indenture Obligations shall be
paid strictly in accordance with their terms regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Holders of
the Securities.



      (d) Each Guarantor’s liability to pay or perform or cause the performance of the Indenture
Obligations under this Guarantee shall arise forthwith after demand for payment or performance by
the Trustee has been given to the Guarantors in the manner prescribed in Section 13.02 hereof.



65









 





      (e) Except as provided herein, the provisions of this Article 12 cover all agreements between
the parties hereto relative to this Guarantee and none of the parties shall be bound by any
representation, warranty or promise made by any Person relative thereto which is not embodied
herein; and it is specifically acknowledged and agreed that this Guarantee has been delivered by
each Guarantor free of any conditions whatsoever and that no representations, warranties or
promises have been made to any Guarantor affecting its liabilities hereunder, and that the Trustee
shall not be bound by any representations, warranties or promises now or at any time hereafter made
by the Company to any Guarantor.



      (f) This Guarantee is a guarantee of payment, performance and compliance and not of
collectibility and is in no way conditioned or contingent upon any attempt to collect from or
enforce performance or compliance by the Company or upon any event or condition whatsoever.



      (g) The obligations of the Guarantors set forth herein constitute the full recourse
obligations of the Guarantors enforceable against them to the full extent of all their assets and
properties.



      Section 12.03. Guarantee Absolute.



      The obligations of the Guarantors hereunder are independent of the obligations of the Company
under the Securities and this Indenture and a separate action or actions may be brought and
prosecuted against any Guarantor whether or not an action or proceeding is brought against the
Company and whether or not the Company is joined in any such action or proceeding. The liability
of the Guarantors hereunder is irrevocable, absolute and unconditional and (to the extent permitted
by law) the liability and obligations of the Guarantors hereunder shall not be released,
discharged, mitigated, waived, impaired or affected in whole or in part by:




     (a) any defect or lack of validity or enforceability in respect of any Indebtedness or
other obligation of the Company or any other Person under this Indenture or the Securities,
or any agreement or instrument relating to any of the foregoing;




     (b) any grants of time, renewals, extensions, indulgences, releases, discharges or
modifications which the Trustee or the Holders may extend to, or make with, the Company, any
Guarantor or any other Person, or any change in the time, manner or place of payment of, or
in any other term of, all or any of the Indenture Obligations, or any other amendment or
waiver of, or any consent to or departure from, this Indenture or the Securities, including
any increase or decrease in the Indenture Obligations;




     (c) the taking of security from the Company, any Guarantor or any other Person, and the
release, discharge or alteration of, or other dealing with, such security;




     (d) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court
amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or
otherwise affect, any of the Indenture Obligations and the obligations of any Guarantor
hereunder;




     (e) the abstention from taking security from the Company, any Guarantor or any other
Person or from perfecting, continuing to keep perfected or taking advantage of any security;




     (f) any loss, diminution of value or lack of enforceability of any security received
from the Company, any Guarantor or any other Person, and including any other guarantees
received by the Trustee;



66









 






     (g) any other dealings with the Company, any Guarantor or any other Person, or with any
security;




     (h) Trustee’s or the Holders’ acceptance of compositions from the Company or any
Guarantor;




     (i) the application by the Holders or the Trustee of all monies at any time and from
time to time received from the Company, any Guarantor or any other Person on account of any
Indebtedness and liabilities owing by the Company or any Guarantor to the Trustee or the
Holders, in such manner as the Trustee or the Holders deems best and the changing of such
application in whole or in part and at any time or from time to time, or any manner of
application of collateral, or proceeds thereof, to all or any of the Indenture Obligations,
or the manner of sale of any collateral;




     (j) the release or discharge of the Company or any Guarantor of the Securities or of
any Person liable directly as surety or otherwise by operation of law or otherwise for the
Securities, other than an express release in writing given by the Trustee, on behalf of the
Holders, of the liability and obligations of any Guarantor hereunder;




     (k) any change in the name, business, capital structure or governing instrument of the
Company or any Guarantor or any refinancing or restructuring of any of the Indenture
Obligations;




     (l) the sale of the Company’s or any Guarantor’s business or any part thereof;




     (m) subject to Section 12.13, any merger or consolidation, arrangement or
reorganization of the Company, any Guarantor, any Person resulting from the merger or
consolidation of the Company or any Guarantor with any other Person or any other successor
to such Person or merged or consolidated Person or any other change in the corporate
existence, structure or ownership of the Company or any Guarantor or any change in the
corporate relationship between the Company and any Guarantor, or any termination of such
relationship;




     (n) the insolvency, bankruptcy, liquidation, winding-up, dissolution, receivership,
arrangement, readjustment, assignment for the benefit of creditors or distribution of the
assets of the Company or its assets or any resulting discharge of any obligations of the
Company (whether voluntary or involuntary) or of any Guarantor (whether voluntary or
involuntary) or the loss of corporate existence;




     (o) subject to Section 12.13, any arrangement or plan of reorganization affecting the
Company or any Guarantor;




     (p) any failure, omission or delay on the part of the Company to conform or comply with
any term of this Indenture;




     (q) any limitation on the liability or obligations of the Company or any other Person
under this Indenture, or any discharge, termination, cancellation, distribution,
irregularity, invalidity or unenforceability in whole or in part of this Indenture;




     (r) any other circumstance (including any statute of limitations) that might otherwise
constitute a defense available to, or discharge of, the Company or any Guarantor; or



67









 






     (s) any modification, compromise, settlement or release by the Trustee, or by operation
of law or otherwise, of the Indenture Obligations or the liability of the Company or any
other obligor under the Securities, in whole or in part, and any refusal of payment by the
Trustee, in whole or in part, from any other obligor or other guarantor in connection with
any of the Indenture Obligations, whether or not with notice to, or further assent by, or
any reservation of rights against, each of the Guarantors.



      Section 12.04. Right to Demand Full Performance.



      In the event of any demand for payment or performance by the Trustee from any Guarantor
hereunder, the Trustee or the Holders shall have the right to demand its full claim and to receive
all dividends or other payments in respect thereof until the Indenture Obligations have been paid
in full, and the Guarantors shall continue to be jointly and severally liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under this Indenture and
the Securities. The retention by the Trustee or the Holders of any security, prior to the
realization by the Trustee or the Holders of its rights to such security upon foreclosure thereon,
shall not, as between the Trustee and any Guarantor, be considered as a purchase of such security,
or as payment, satisfaction or reduction of the Indenture Obligations due to the Trustee or the
Holders by the Company or any part thereof. Each Guarantor, promptly after demand, will reimburse
the Trustee and the Holders for all costs and expenses of collecting such amount under, or
enforcing this Guarantee, including, without limitation, the reasonable fees and expenses of
counsel.



      Section 12.05. Waivers.



      (a) Each Guarantor hereby expressly waives (to the extent permitted by law) notice of the
acceptance of this Guarantee and notice of the existence, renewal, extension or the
non-performance, non-payment, or non-observance on the part of the Company of any of the terms,
covenants, conditions and provisions of this Indenture or the Securities or any other notice
whatsoever to or upon the Company or such Guarantor with respect to the Indenture Obligations,
whether by statute, rule of law or otherwise. Each Guarantor hereby acknowledges communication to
it of the terms of this Indenture and the Securities and all of the provisions therein contained
and consents to and approves the same. Each Guarantor hereby expressly waives (to the extent
permitted by law) diligence, presentment, protest and demand for payment with respect to (i) any
notice of sale, transfer or other disposition of any right, title to or interest in the Securities
by the Holders or in this Indenture, (ii) any release of any Guarantor from its obligations
hereunder resulting from any loss by it of its rights of subrogation hereunder and (iii) any other
circumstances whatsoever that might otherwise constitute a legal or equitable discharge, release or
defense of a guarantor or surety or that might otherwise limit recourse against such Guarantor.



      (b) Without prejudice to any of the rights or recourses which the Trustee or the Holders may
have against the Company, each Guarantor hereby expressly waives (to the extent permitted by law)
any right to require the Trustee or the Holders to:




     (1) enforce, assert, exercise, initiate or exhaust any rights, remedies or recourse
against the Company, any Guarantor or any other Person under this Indenture or otherwise;




     (2) value, realize upon, or dispose of any security of the Company or any other Person
held by the Trustee or the Holders;




     (3) initiate or exhaust any other remedy which the Trustee or the Holders may have in
law or equity; or



68









 






     (4) mitigate the damages resulting from any default under this Indenture;


before requiring or becoming entitled to demand payment from such Guarantor under this Guarantee.




      Section 12.06. The Guarantors Remain Obligated in Event the Company Is No Longer
Obligated to Discharge Indenture Obligations.



      It is the express intention of the Trustee and the Guarantors that if for any reason the
Company has no legal existence, is or becomes under no legal obligation to discharge the Indenture
Obligations owing to the Trustee or the Holders by the Company or if any of the Indenture
Obligations owing by the Company to the Trustee or the Holders becomes irrecoverable from the
Company by operation of law or for any reason whatsoever, this Guarantee and the covenants,
agreements and obligations of the Guarantors contained in this Article 12 shall nevertheless be
binding upon the Guarantors, as principal debtor, until such time as all such Indenture Obligations
have been paid in full to the Trustee and all Indenture Obligations owing to the Trustee or the
Holders by the Company have been discharged.



      Section 12.07. Limitation on Guarantor Liability.



      (a) Each Guarantor that is a Subsidiary of the Company, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the Guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Law, 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 such
Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall
be limited to the maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to its contribution obligations under this Indenture, will result in the
obligations of such Guarantor under its Guarantee not constituting such fraudulent transfer or
conveyance.



      (b) Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled
to a contribution from each other Guarantor, if any, in a pro rata amount based on the net assets
of each Guarantor, determined in accordance with GAAP.



      (c) Each Guarantor hereby waives all rights of subrogation or contribution, whether arising by
contract or operation of law (including, without limitation, any such right arising under federal
bankruptcy law) or otherwise by reason of any payment by it pursuant to the provisions of this
Article 12 until payment in full of all Indenture Obligations.



      Section 12.08. Guarantee is in Addition to Other Security.



      This Guarantee shall be in addition to and not in substitution for any other guarantees which
the Trustee may now or hereafter hold in respect of the Indenture Obligations owing to the Trustee
or the Holders by the Company and (except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of each of the Guarantors any other guarantees or any moneys or
other assets which the Trustee may be entitled to receive or upon which the Trustee or the Holders
may have a claim.



      Section 12.09. No Bar to Further Actions.



      Except as provided by law, no action or proceeding brought or instituted under this Article 12
and this Guarantee and no recovery or judgment in pursuance thereof shall be a bar or defense to
any further



69









 







action or proceeding which may be brought under this Article 12 and this Guarantee by reason
of any further default or defaults under this Article 12 and this Guarantee or in the payment of
any of the Indenture Obligations owing by the Company.



      Section 12.10. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of
Remedies.



      (a) No failure to exercise and no delay in exercising, on the part of the Trustee or the
Holders, any right, power, privilege or remedy under this Article 12 and this Guarantee shall
operate as a waiver thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or the exercise of any other
rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative
and not exclusive of any rights or remedies provided in law or equity.



      (b) Nothing contained in this Article 12 shall limit the right of the Trustee or the Holders
to take any action to accelerate the maturity of the Securities pursuant to Article 7 or to pursue
any rights or remedies hereunder or under applicable law.



      Section 12.11. Trustee’s Duties; Notice to Trustee.



      (a) Any provision in this Article 12 or elsewhere in this Indenture allowing the Trustee to
request any information or to take any action authorized by, or on behalf of any Guarantor, shall
be permissive and shall not be obligatory on the Trustee except as the Holders may direct in
accordance with the provisions of this Indenture or where the failure of the Trustee to request any
such information or to take any such action arises from the Trustee’s negligence, bad faith or
willful misconduct.



      (b) The Trustee shall not be required to inquire into the existence, powers or capacities of
the Company, any Guarantor or the officers, directors or agents acting or purporting to act on
their respective behalf.



      Section 12.12. Successors and Assigns.



      All terms, agreements and conditions of this Article 12 shall extend to and be binding upon
each Guarantor and its successors and permitted assigns and shall inure to the benefit of and may
be enforced by the Trustee and its successors and assigns; provided, however, that the Guarantors
may not assign any of their rights or obligations hereunder other than in accordance with Article 6
hereof.



      Section 12.13. Release of Guarantee.



      Concurrently with the payment in full of all of the Indenture Obligations, the Guarantors
shall be released from and relieved of their obligations under this Article 12. Upon the delivery
by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect
that the transaction giving rise to the release of this Guarantee was made by the Company in
accordance with the provisions of this Indenture and the Securities, the Trustee shall execute any
documents reasonably required in order to evidence the release of the Guarantors from their
obligations under this Guarantee. If any of the Indenture Obligations are revived and reinstated
after the termination of this Guarantee, then all of the obligations of the Guarantors under this
Guarantee shall be revived and reinstated as if this Guarantee had not been terminated until such
time as the Indenture Obligations are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing such revival and
reinstatement.



70









 





      This Guarantee shall terminate with respect to each Guarantor and shall be automatically and
unconditionally released and discharged as provided in Section 5.11(b).



      Section 12.14. Execution of Guarantee.



      (a) To evidence the Guarantee, each Guarantor hereby agrees to execute the guarantee
substantially in the form set forth in Exhibit C hereto, to be endorsed on each Security
authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of
each Guarantor by one of its Chairman of the Board, its President, its Chief Executive Officer, its
President, its Chief Operating Officer, any Executive Vice President or Vice President, its
Treasurer, its Assistant Treasurer, its Secretary or its Assistant Secretary. The signature of any
of these officers on the Securities may be manual or facsimile.



      (b) Any Person that was not a Guarantor on the initial Issue Date may become a Guarantor by
executing and delivering to the Trustee (i) a supplemental indenture in form set forth in Exhibit B
hereto, which subjects such Person to the provisions (including the representations and warranties)
of this Indenture as a Guarantor and (ii) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and constitutes the
legal, valid and binding obligation of such Person (subject to such customary assumptions and
exceptions as may be acceptable to the Trustee in its reasonable discretion).



      (c) If an officer whose signature is on this Indenture no longer holds that office at the time
the Trustee authenticates a Security on which this Guarantee is endorsed, such Guarantee shall be
valid nevertheless.



ARTICLE 13




MISCELLANEOUS




      Section 13.01. 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 13.02. 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 or any Guarantor, to:



      General Cable Corporation




71










 





4 Tesseneer Drive

Highland Heights, Kentucky 41076

Attention: General Counsel

Facsimile No.: (859) 572-8458



or at any other address previously furnished in writing to the Trustee by the Company or such
Guarantor,




with a copy to:
 

Blank
Rome LLP

One Logan Square

Philadelphia, Pennsylvania 19103-6998

Attention: Matthew J. Siembieda, Esq.

Alan H. Lieblich, Esq.

Facsimile No.: (215) 569-5555
 

if
to the Trustee, to:
 

U.S.
Bank National Association

Corporate Trust Services

CN-WN-06CT

425 Walnut Street, 6th Floor

Cincinnati, Ohio 45202

Attention: Robert T. Jones, Vice President

Facsimile No.: (513) 632-5511



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




      Such notices or communications shall be effective when 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.



72









 





      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
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 13.03. 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 13.04. 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 and any Guarantor
(if applicable) and any other obligor on the Securities (if applicable) shall furnish to the
Trustee an Officer’s Certificate in a form and substance reasonably acceptable to the Trustee
stating that all conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to the proposed action
have been complied with, and an Opinion of Counsel in a form and substance reasonably acceptable to
the Trustee 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 each individual signing such certificate or individual or firm
signing such 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 each such individual or such firm, he or it has
made such examination or investigation as is necessary to enable him or it to express an
informed opinion as to whether or not such covenant or condition has been complied with; and




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



73









 





          Section 13.05. 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 13.05.



      (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, any Guarantor 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, 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.



74









 





      (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 13.06. Benefits of Indenture.




      Nothing in this Indenture or in the Securities or Guarantees, 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 13.07. Legal Holidays.




      In any case where any Interest Payment 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 or premium, if
any, need not be made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment 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, Fundamental Change Purchase Date or Final Maturity Date, as
the case may be, to the next succeeding Business Day.



          Section 13.08. Governing Law.




      THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.



          Section 13.09. 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 13.10. No Personal Liability of Directors, Officers, Employees and Stockholders.




      No director, officer, employee, stockholder, incorporator or agent of the Company or any
Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors
under the Securities, the Indenture, the Guarantees, 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.



          Section 13.11. Successors and Assigns.




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



          Section 13.12. 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.



75









 





          Section 13.13. Separability Clause.




      In case any provision in this Indenture or in the Securities or Guarantees 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 13.14. Independence of Covenants.




      All covenants and agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken or condition
exists.



          Section 13.15. 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 13.16. 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]




76









 





      IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date and year
first above written.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	GENERAL CABLE CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	THE GUARANTORS:
	 
	 	 	 	 
	 	 	GENCA CORPORATION

	 	 	GENERAL CABLE INDUSTRIES, INC.

	 	 	GENERAL CABLE INDUSTRIES LLC

	 	 	GENERAL CABLE MANAGEMENT LLC

	 	 	GENERAL CABLE OVERSEAS HOLDINGS, INC.

	 	 	GENERAL CABLE TECHNOLOGIES CORPORATION

	 	 	GENERAL CABLE TEXAS OPERATIONS L.P.

	 	 	GK TECHNOLOGIES, INCORPORATED

	 	 	DIVERSIFIED CONTRACTORS, INC.

	 	 	MARATHON MANUFACTURING HOLDINGS, INC.

	 	 	MARATHON STEEL COMPANY

	 	 	MLTC COMPANY

	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






 









 





	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:






 









 





Exhibit A




[FORM OF FACE OF SECURITY]




      UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO GENERAL CABLE CORPORATION (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





 




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





 









 





General Cable Corporation




•% Senior Convertible Notes due 2013




	 	 	 
	No. A-1
	 	CUSIP: •
	 
	 	•(Common Stock)






      General Cable Corporation, a Delaware corporation, promises to pay to Cede & Co. or registered
assigns the principal amount of ______dollars ($ [      ]) on November
15, 2013.



      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.



      This Security is entitled to the benefits of the Guarantees by the Guarantors of the punctual
payment when due and performance of the Indenture Obligations made in favor of the Trustee for the
benefit of the Holders. Reference is made to Article 12 of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the Guarantees of the
Guarantors.



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



Dated: •, 2006




[SIGNATURE PAGE FOLLOWS]




 









 





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



	 	 	 	 	 
	 	GENERAL CABLE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


 



Dated:



Trustee’s Certificate of Authentication:




	 	 	 	 	 
	This is one of the Securities referred to in the

within-mentioned Indenture.	 	 
	 

	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

as Trustee	 	 
	 

	 	 	 	 
	By:

	 	 	 	 
	 	 	 	 	 
	 

	 	Authorized Officer	 	 


















 





[FORM OF REVERSE SIDE OF SECURITY]




General Cable Corporation




•% Senior Convertible Notes due 2013




1. Interest




      General Cable Corporation, a Delaware corporation (the “Company”, which term shall include any
successor corporation 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 on May 15 and November 15 of each year (each an “Interest Payment Date”), commencing
May 15, 2007. Each payment of interest will include interest accrued through the day before the
relevant Interest Payment Date or Fundamental Change Purchase Date, as the case may be. Cash
interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.



      If the Holder elects to require the Company to purchase this Security pursuant to Paragraph 5
of this Security, on a date that is after the Regular Record Date and prior to the corresponding
Interest Payment Date, interest, accrued and unpaid hereon to, but not including, the applicable
Fundamental Change Purchase Date, will be paid to the Holder in whose name such Security is
registered at the close of business on the Regular Record Date immediately preceding the applicable
Fundamental Change Purchase Date.



      Interest on Securities converted after the close of business on a Regular Record Date but
prior to the opening of business on the corresponding Interest Payment Date will be paid to the
Holder of the Securities on each Regular Record Date but, upon conversion, the Holder must pay the
Company the interest which has accrued and will be paid on such Interest Payment Date.



      No sinking fund is provided for the Securities.



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 May 1 or November 1, 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, U.S. 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 Holder. The Company or any of its Affiliates may, subject to certain
limitations set forth in the Indenture, act as Paying Agent.



4. Indenture




      This Security is one of a duly authorized issue of Securities of the Company designated as its
•% Senior Convertible Notes Due 2013 (the
“Securities”), issued under an Indenture dated as of •,



A-1









 





2006 (together with any supplemental indentures thereto, the “Indenture”), among the Company,
the 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 senior unsecured obligations of the Company limited to $360,000,000
aggregate principal amount. The Indenture does not limit other debt of the Company, secured or
unsecured.



5. 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, subject to certain
exceptions described in the Indenture, 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 a date specified by the Company that is 30 Business Days after the later of the
Fundamental Change Effective Date and the date that a Issuer Fundamental Change Notice is
delivered, at a purchase price equal to 100% of the principal amount thereof together with accrued
and unpaid interest, if any, to, but excluding, the Fundamental Change Purchase Date. The Holder
shall have the right to withdraw any Fundamental Change Purchase Notice (in whole or in a portion
thereof that is $1,000 or an integral multiple of $1,000) at any time prior to the close of
business on the Business Day immediately preceding the Fundamental Change Purchase Date by
delivering a written notice of withdrawal to the Paying Agent in accordance with the terms of the
Indenture.



6. Conversion




      Subject to and upon compliance with the provisions of the Indenture and upon the occurrence of
the events specified in the Indenture, a Holder may surrender for conversion any Security that is
$1,000 principal amount or integral multiples thereof. In lieu of receiving shares of the
Company’s Common Stock, a Holder will receive to the extent set forth in the Indenture, for each
$1,000 principal amount of Securities surrendered for conversion:




	 	-	 	cash in an amount equal to the lesser of (1) $1,000 and (2) the Conversion
Value, as defined in the Indenture; and
	 
	 	-	 	if the Conversion Value is greater than $1,000, a number of shares of the
Company’s Common Stock (the “Remaining Shares”), equal to the sum of the Daily Share
Amounts, as defined in the Indenture, for each of the 20 consecutive Trading Days in
the Conversion Reference Period, as defined in the Indenture, subject to the Company’s
right to deliver cash in lieu of all or a portion of the Remaining Shares as described
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.



7. 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



A-2









 







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.



8. Persons Deemed Owners




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



9. 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 at its written request, subject to the
provisions of the Indenture. After that, Holders entitled to money must look to the Company for
payment as general creditors.



10. 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 in a particular
instance 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, the
Guarantors and the Trustee may amend or supplement the Indenture or the Securities to, among other
things, (x) cure any ambiguity, omission, defect or inconsistency or (y) make any other change that
does not adversely affect the interests of the Holders in any material respect.



11. Successor Entity




      When a successor corporation 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 corporation (except in certain circumstances specified in the Indenture) shall be
released from those obligations.



12. Defaults and Remedies




      Under the Indenture, an Event of Default shall occur if:




     (1) the Company shall fail to pay when due the Principal or any Fundamental Change
Purchase Price of any Security, including any Make Whole Premium, when the same becomes due
and payable whether at the Final Maturity Date, upon purchase, acceleration or otherwise; or




     (2) the Company shall fail to pay when due an installment of cash interest on any of
the Securities, which default continues for 60 days after the date when due; or




     (3) the Company shall fail to deliver when due all cash and any shares of Common Stock
deliverable upon conversion of the Securities, which failure continues for 15 days; or




     (4) the Company shall fail to deliver an Issuer Fundamental Change Notice within the
time required to provide such notice as set forth in Section 3.01(b) of the Indenture; or



A-3









 






     (5) the Company or any Guarantor shall fail to perform or observe any other term,
covenant or agreement contained in the Securities or the Indenture for a period of 60 days
after receipt by the Company of a Notice of Default specifying such failure; or




     (6) a default or defaults under the terms of one or more instruments evidencing or
securing Indebtedness of the Company or any of the Restricted Subsidiaries having an
outstanding principal amount of greater than $50,000,000 individually or in the aggregate,
which default (a) is caused by a failure to pay at final maturity principal on such
Indebtedness within the applicable express grace period, (b) results in the acceleration of
such Indebtedness prior to its express final maturity or (c) results in the commencement of
judicial proceedings to foreclose upon, or to exercise remedies under applicable law or
applicable security documents to take ownership of, the assets securing such Indebtedness;
or




     (7) a Guarantee ceases to be in full force and effect or is declared to be null and
void and unenforceable or a Guarantee is found to be invalid or a Guarantor denies its
liability under its Guarantee or gives notice to that effect (other than by reason of
release of the Guarantor in accordance with the terms of the Indenture); or




     (8) a court having jurisdiction in the premises enters (x) a decree or order for relief
in respect of the Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (y) a decree or order adjudging the Company or any of its Significant
Subsidiaries a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company or
any of its Significant Subsidiaries under any applicable federal or state law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any of its Significant Subsidiaries or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or




     (9) (a) the Company or any of its Significant Subsidiaries commences a voluntary case
or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or any other case or proceeding to be adjudicated a bankrupt or
insolvent; or




     (b) the Company or any of its Significant Subsidiaries consents to the entry of
a decree or order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the Company
or any of its Significant Subsidiaries; or




     (c) the Company or any of its Significant Subsidiaries files a petition or
answer or consent seeking reorganization or relief under any applicable federal or
state law; or




     (d) the Company or any of its Significant Subsidiaries consents to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or any of its Significant Subsidiaries or of any substantial part of their
property; or



A-4









 






     (e) the Company or any of its Significant Subsidiaries makes an assignment for
the benefit of creditors; or




     (f) the Company or any of its Significant Subsidiaries admits in writing its
inability to pay its debts generally as they become due; or




     (g) the Company or any of its Significant Subsidiaries takes corporate action
in furtherance of any such action.



      Notwithstanding the above, no Event of Default under clause (5) above 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 (5) after receipt of such notice.



      If an Event of Default (other than an Event of Default specified in clause (8) or (9) above)
shall occur and be continuing with respect to the Indenture, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities then Outstanding may, and the Trustee at
the request of such Holders shall, declare all unpaid principal of, premium, if any, and accrued
interest 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,
premium, if any, and interest shall become due and payable immediately.



      If an Event of Default specified in clauses (8) or (9) 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, 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 Outstanding Securities, (3) the principal of and premium, if any, on any
Outstanding Securities 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; and
(c) all Events of Default, other than the non-payment of principal of, premium, if any, 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 withhold from Holders for a period of 30 days notice of any continuing Default (except
a Default in payment of principal or interest) 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.



A-5









 





13. Trustee Dealings With the Company




      U.S. 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, and may otherwise deal with the
Company or an Affiliate of the Company, as if it were not the Trustee.



14. No Recourse Against Others




      No director, officer, employee, stockholder, incorporator or agent of the Company or any
Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors
under the Securities, the Indenture, the Guarantees, 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.



15. 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.



16. 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).



      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.



17. Guarantees.




      This Security will be entitled to the benefits of the Guarantees made for the benefit of the
Holders. Reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.



18. Indenture to Control; Governing Law




      In the case of any conflict between the provisions of this Security or the Guarantee and the
Indenture, the provisions of the Indenture shall control. This Security, the Guarantee and the
Indenture 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: General Cable Corporation, 4 Tesseneer Drive, Highland
Heights, KY 41076, Attention: General Counsel, Facsimile No. (859) 572-8444, Telephone No. (859)
572-8000.




A-6









 








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.





A-7









 





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.





A-8









 





FUNDAMENTAL CHANGE PURCHASE NOTICE




To: General Cable Corporation




      The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from General Cable Corporation (the “Company”) as to the occurrence of a Fundamental Change
with respect to the Company 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 Indenture referred to in this Security at the
Fundamental Change Purchase Price, together with accrued and unpaid interest, if any, to, but
excluding, such date, to the registered Holder hereof.



	 	 	 
	Date:
	 	 
	 

	 	 
	 

	 	Signature(s)
	 
	 	 
	 

	 	Signature(s) 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 repurchased (in an

integral multiple of $1,000, if less than all):
	 	 








 




			
	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-9









 





SCHEDULE OF EXCHANGES OF SECURITIES




      The following exchanges, purchases or conversions of a part of this Global Security have been
made:



	 	 	 	 	 	 	 
	Principal Amount of	 	 	 	 	 	 
	this Global Note	 	 	 	 	 	 
	Following Such	 	 	 	 	 	 
	Decrease Date of	 	Authorized	 	Amount of Decrease	 	Amount of Increase
	Exchange (or	 	Signatory of	 	in Principal Amount	 	in Principal Amount
	Increase)	 	Securities Custodian	 	of this Global Note	 	of this Global Note
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





A-10









 





Exhibit B




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY FUTURE GUARANTORS



SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as of ______,
200 ______, among ______ (the “Guaranteeing Subsidiary”), a
subsidiary of ______ (or its permitted successor), a [Delaware]
corporation (the “Company”), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and U.S. Bank National Association, as trustee under the Indenture referred to
below (the “Trustee”).




WITNESSETH



WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of •, 2006 providing for the
issuance of •% Senior Convertible Notes due
2013 (the “Notes”);



WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall
execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing
Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the
Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and



WHEREAS, pursuant to Section 10.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:



1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.



2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide a Guarantee on the
terms and subject to the conditions set forth in the Guarantee and in the Indenture including but
not limited to Article 12 thereof.



4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiary(ies), as such, shall have any
liability for any obligations of the Company or any Guaranteeing Subsidiary(ies) under the Notes,
any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the Notes or any Guarantee
by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and this Guarantee.



5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.




B-1









 




6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same agreement.



7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect
the construction hereof.



8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.



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




	 	 	 	 	 	 
	Dated as of ______, 20 ___
	 	 	 	 	 
	 	 
	 	 	 	 
	 	 
	 	 	 	 
	 	 	 	SIGNATURES
	 	 
	 	 	 	 
	 	 	 	[NAME OF GUARANTEEING SUBSIDIARY OR SUBSIDIARIES]
	 	 
	 	 	 	 
	 	 

	 	By:	 	 
	 	 

	 	 	 	 
	 	 

	 	 	 	Name:
	 	 

	 	 	 	Title:
	 	 
	 	 	 	 
	 	 	 	GENERAL CABLE CORPORATION
	 	 
	 	 	 	 
	 	 

	 	By:	 	 
	 	 

	 	 	 	 
	 	 

	 	 	 	Name:
	 	 

	 	 	 	Title:
	 	 
	 	 	 	 
	 	 	 	U.S. BANK NATIONAL ASSOCIATION,

	 	 	 	AS TRUSTEE
	 	 
	 	 	 	 
	 	 

	 	By:	 	 
	 	 

	 	 	 	 
	 	 

	 	 	 	Name:
	 	 

	 	 	 	Title:






B-2









 





Exhibit C




FORM OF NOTATION OF GUARANTEE



For value received, each Guarantor (which term includes any successor Person under the Indenture)
has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture
and subject to the provisions in the Indenture dated as of •, 2006 (the “Indenture”) among General
Cable Corporation, (the “Company”), the Guarantors party thereto and U.S. Bank National
Association, as trustee (the “Trustee”), (a) the due and punctual payment of the principal of,
premium and interest on the • % Senior Convertible Notes due 2013 (the “Notes”) whether at the
Final Maturity Date, by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of and interest on the Notes, if any, on a senior basis, if 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 the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes 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, whether at the
Final Maturity Date, by acceleration or otherwise. The obligations of the Guarantors to the Holders
of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article 12 of the Indenture, including the circumstances under which such obligations may be
released, and reference is hereby made to the Indenture for the precise terms of the Guarantee.
Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions.
This Guarantee may be released in accordance with the Indenture without any further act by any
Holder.



Capitalized terms used but not defined herein have the meanings given to them in the Indenture.




	 	 	 	 
	 

	 	GENCA CORPORATION	 
	 

	 	GENERAL CABLE INDUSTRIES, INC.	 
	 

	 	GENERAL CABLE INDUSTRIES LLC	 
	 

	 	GENERAL CABLE MANAGEMENT LLC	 
	 

	 	GENERAL CABLE OVERSEAS HOLDINGS, INC.	 
	 

	 	GENERAL CABLE TECHNOLOGIES CORPORATION	 
	 

	 	GENERAL CABLE TEXAS OPERATIONS L.P.	 
	 

	 	GK TECHNOLOGIES, INCORPORATED	 
	 

	 	DIVERSIFIED CONTRACTORS, INC.	 
	 

	 	MARATHON MANUFACTURING HOLDINGS, INC.	 
	 

	 	MARATHON STEEL COMPANY	 
	 

	 	MLTC COMPANY	 
	 
	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	Name:

Title:	 







C-1