Exhibit 4.1


 


EXECUTION VERSION


 




 





 


GLDD MERGER SUB, INC.


 


to be
merged with and into


 


GREAT LAKES DREDGE & DOCK CORPORATION


 


$175,000,000


 


73⁄4% Senior
Subordinated Notes due 2013


 












 


INDENTURE


 


Dated as of
December 22, 2003


 












 


BNY Midwest Trust
Company,


as Trustee


 




 





 

















 


This INDENTURE, dated as of December 22, 2003, is
by and among GLDD Merger Sub, Inc., a Delaware corporation, to be merged with
and into Great Lakes Dredge & Dock Corporation, a Delaware corporation, the
Guarantors from time to time party hereto and BNY Midwest Trust Company, an
Illinois trust company, as trustee (the “Trustee”).


 


The Company, each Subsidiary Guarantor and the Trustee
agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the 73⁄4% Senior Subordinated Notes due 2013 (the “Notes”) issued under
this Indenture:


 


ARTICLE 1.


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


SECTION 1.01.                                     DEFINITIONS.


 


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


 


“144A Global Note” means a Global Note in
the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with and registered in the name of the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold for initial resale in reliance
on Rule 144A.


 


“Acquired Debt”  means, with respect to any
specified Person, (i) Indebtedness of any other Person existing at the time the
other Person is merged with or into or became a Subsidiary of the specified
Person, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, the other Person merging with or into or becoming
a Subsidiary of the specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by the specified Person


 


“Additional Notes” means any Notes (other
than Initial Notes, Exchange Notes and Notes issued under Sections 2.06, 2.07,
2.10 and 3.06 hereof) issued under this Indenture in accordance with
Sections 2.02, 2.15 and 4.09 hereof, as part of the same series as the
Initial Notes or as an additional series.


 


“Agent” means any Registrar, co-registrar,
Paying Agent or additional paying agent.


 


“Affiliate”  of any specified Person
means any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the specified Person.  For purposes of this definition, “control”  (including,
with correlative meanings, the terms “controlling,”  “controlled by”  and
“under
common control with”),  as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that Beneficial
Ownership of 10% or more of the Voting Stock of a Person shall be deemed to be
control.


 


“Applicable Procedures” means, with respect
to any transfer, redemption or exchange of or for beneficial interests in any
Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer, redemption or exchange.


 


“Asset Sale”  means


 


(i)                                     the
sale, lease, conveyance or other disposition of any assets or rights
(including, without limitation, by way of a sale and leaseback) other than
sales of inventory in the ordinary course of business consistent with past
practices (provided
that the sale, conveyance or other disposition of all or substantially
all of the assets of the Company and its Subsidiaries, taken as a whole, will
be governed by Section 4.18 and/or Section 5.01 and not by
Section 4.12), and


 


1

















 


(ii)                                  the
issue or sale by any Restricted Subsidiary of Equity Interests of any of the
Company’s Subsidiaries,


 


in the case of either
clause (i) or (ii), whether in a single transaction or a series of related
transactions (a) that involve assets or Equity Interests that have a fair
market value in excess of $2.0 million or (b) for net proceeds in excess of
$2.0 million.


 


Notwithstanding the foregoing, the following items
shall not be deemed to be Asset Sales:


 


(i)                                     a
transfer of assets by the Company to a Restricted Subsidiary or by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary,


 


(ii)                                  an
issuance, sale, transfer or other disposition of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary,


 


(iii)                               a Restricted Payment
that is permitted by Section 4.10 or a Permitted Investment,


 


(iv)                              the
sale and leaseback of any assets within 180 days of the date of acquisition or
completion of construction of such assets,


 


(v)                                 the
sale or other disposition of assets that have become worn out, obsolete or
damaged or no longer used or useful in the business of the Company or any
Restricted Subsidiary, as the case may be, in the ordinary course of business,


 


(vi)                              bare-boat
charters, leases or licenses entered into in the ordinary course of business
for a term not to exceed 12 months,


 


(vii)                           the sale or other
disposition of cash or Cash Equivalents,


 


(viii)                        the sale or lease of products
or services or the licensing of intellectual property, in each case in the
ordinary course of business, and


 


(ix)                                the
sale for fair market value (as determined by the Company’s chief financial
officer, as set forth in an Officers’ Certificate to the Trustee if such fair
market value exceeds $2.0 million) of accounts receivable that are generated
from operations conducted outside the United States by the Company or any
Restricted Subsidiary.


 


 “Bankruptcy
Law” means Title 11, United States Code or any similar federal or
state law for the relief of debtors, or the law of any other jurisdiction
relating to bankruptcy, insolvency, winding up, liquidation, reorganization or
relief of debtors.


 


“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as such term is used in
Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to
have beneficial ownership of all securities that such “person” has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.


 


“Board of Directors” means (1) in respect
of a corporation, the board of directors of the corporation, or any duly
authorized committee thereof; and (2) in respect of any other Person, the board
or committee of that Person serving an equivalent function.


 


“Board Resolution” means a copy of a
resolution certified by the secretary or an assistant secretary (or individual
performing comparable duties) of the applicable Person to have been duly
adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.


 


2

















 


“Bonding Agreement”  means the Third Amended and
Restated Underwriting and Continuing Indemnity Agreement, dated
December 22, 2003, by and among the Company, certain of its Subsidiaries,
Travelers Casualty and Surety Company and Travelers Casualty and Surety Company
of America, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.


 


“Business Day” means any day other than a
Legal Holiday.


 


“Capital Lease Obligation”  means,
at the time any determination of a capital lease obligation is to be made, the
amount of the liability in respect of a capital lease that would at such time
be required to be capitalized on a balance sheet in accordance with GAAP.


 


“Capital Stock”  means


 


(i)                                     in
the case of a corporation, corporate stock,


 


(ii)                                  in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock,


 


(iii)                               in the case of a
partnership or limited liability company, partnership or membership interests
(whether general or limited) and


 


(iv) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.


 


“Cash Equivalents” means:


 


(i)                                     United
States dollars or money in other currencies received in the ordinary course of
business,


 


(ii)                                  obligations
issued or guaranteed by the United States government or any agency of the
United States (provided that the full faith and credit of the United States
is pledged in support) having maturities of not more than one year from the
date of acquisition,


 


(iii)                               certificates of deposit
and eurodollar time deposits with maturities of one year or less from the date
of acquisition, bankers’ acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any commercial bank having capital
and surplus in excess of $500 million,


 


(iv)                              repurchase
obligations with a term of not more than thirty days for underlying securities
of the types described in clauses (ii) and (iii) above entered into with any
institution meeting the qualifications specified in clause (iii) above,


 


(v)                                 obligations
issued by any state of the United States of America or any political
subdivision of any such state maturing within one year from the date of
acquisition and, at the time of acquisition, having one of the two highest
ratings obtainable from either S&P or Moody’s,


 


(vi)                              commercial
paper having one of the two highest ratings obtainable from Moody’s or S&P
and in each case maturing within one year after the date of acquisition,


 


(vii)                           money market funds at least
95% of the assets of which constitute Cash Equivalents of the kinds described
in clauses (i) through (vi) of this definition,


 


(viii)                        short-term asset management
accounts offered by any lender under Credit Facilities for the purpose of
investing in notes issued by a corporation (other than the Company or any
Affiliate of the Company) 


 


3

















 


organized under the laws of any state of the United
States or of the District of Columbia and rated A-2 or higher by S&P, or
P-2 or higher by Moody’s,


 


(ix)                                securities
with maturities of one year or less from the date of acquisition issued or
fully and unconditionally guaranteed by any state, commonwealth or territory of
the United States of America or the federal government of Canada, or by any
political subdivision or taxing authority thereof, and having one of the two
highest ratings obtainable from S&P or Moody’s,


 


(x)                                   time
or demand deposits with any bank or trust company,


 


(xi)                                participation
in loans made to a borrower (other than an Affiliate of the Company) with a
debt rating of A-2 or higher from S&P, or P-2 or higher from Moody’s; provided,
however,
that such loans must mature within one year from the date such participation is
purchased,


 


(xii)                             bonds issued by a
municipality or governmental agency and rated not lower than BBB by S&P, or
Baa2 by Moody’s and purchased by the Company or any of its Subsidiaries in the
ordinary course of its business in connection with retainage under contracts
with its customers, and


 


(xiii)                          in the case of foreign
Subsidiaries, short term investments comparable to the foregoing.


 


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


 


(i)                     the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries (determined
on a consolidated basis), in each case, to any “person”  (as that term is used in
Section 13(d)(3) of the Exchange Act) other than the Company or a Wholly
Owned Restricted Subsidiary or any Principal or a Related Party of a Principal,


 


(ii)                  the
adoption of a plan relating to the liquidation or dissolution of the Company
(other than in a transaction which complies with the provisions described under
Section 5.01,


 


(iii)               the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of
which is that any “person”  (as defined above), other than one or
more Principals or their Related Parties, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the Company
(measured by voting power rather than number of shares), or


 


(iv)              the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.


 


“Clearstream”  means Clearstream Banking
S.A. and any successor thereto.


 


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


 


“Commission”  means the Securities and
Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or if at any time after the
execution and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.


 


“Company” means GLDD Merger Sub, Inc., and,
upon consummation of the transactions contemplated by the Merger Agreement,
Great Lakes Dredge & Dock Corporation, and any successor thereto.


 


“Consolidated Cash Flow”  means,
with respect to any Person for any period, the Consolidated Net Income of such
Person for such period, plus


 


4

















 


(i)                                     an
amount equal to any extraordinary or nonrecurring loss (including any loss on
extinguishment or conversion of Indebtedness) plus any net loss realized in
connection with an Asset Sale (without giving effect to the $2.0 million
threshold provided in the definition thereof), to the extent those losses were
deducted in computing the Consolidated Net Income, plus


 


(ii)                                  provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing the Consolidated Net Income, plus


 


(iii)                               consolidated Fixed
Charges to the extent that any such Fixed Charges were deducted in computing
the Consolidated Net Income, plus


 


(iv)                              depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash items (excluding any non-cash item to the extent
that it represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash items were
deducted in computing the Consolidated Net Income, plus


 


(v)                                 the
amount of any minority interest expense attributable to the 15% equity interest
of NASDI not owned by the Company to the extent deducted in computing
Consolidated Net Income for so long as the intercompany note between the
Company and NASDI shall be in effect, minus


 


(vi)                              non-cash
items increasing the Consolidated Net Income for such period other than (i)
accrual of revenue in the ordinary course of business and (ii) reversals of
prior accruals or reserves for cash items previously excluded from Consolidated
Cash Flow pursuant to clause (iv) of this definition,


 


in each case, on a consolidated basis and determined
in accordance with GAAP.


 


“Consolidated Leverage Ratio”  as
of any date of determination means, the ratio of (x) consolidated Indebtedness
of the Company and its Restricted Subsidiaries as of the end of the most recent
fiscal quarter for which internal financial statements are available to (y) the
aggregate amount of Consolidated Cash Flow of the Company and its Restricted
Subsidiaries for the period of the most recent four consecutive quarters for
which internal financial statements are available, in each case with such pro forma
adjustments to consolidated Indebtedness and Consolidated Cash Flow as are
appropriate and consistent with the pro forma provisions set forth in the
definition of Fixed Charge Coverage Ratio.


 


“Consolidated Net Income”  means,
with respect to any Person for any period, the aggregate of the Net Income of
such Person and its Restricted Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided that


 


(i)                                     the
Net Income of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the referent
Person or its Restricted Subsidiary;


 


(ii)                                  the
Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders;


 


(iii)                               the Net Income of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded;


 


(iv)                              the
cumulative effect of a change in accounting principles shall be excluded,


 


5

















 


(v)                                 the
Net Income of any Unrestricted Subsidiary shall be excluded, whether or not
distributed to the Company or one of its Subsidiaries,


 


(vi)                              any
non-cash goodwill or other intangible asset impairment charges incurred
subsequent to the date of this Indenture resulting from the application of SFAS
No. 142 shall be excluded;


 


(vii)                           any non-cash compensation
charges, including any such charges arising from stock options, restricted
stock grants or other equity-incentive programs shall be excluded;


 


(viii)                        the charge related to the
impairment of the land use rights pertaining to the Company’s disposal sites in
New Jersey shall be excluded; and


 


(ix)                                any
increase in amortization or depreciation expense or any one-time non-cash
charges resulting from purchase accounting or any non-recurring costs and
expenses incurred in connection with the Transactions or any acquisition that
is consummated after the date of this Indenture shall be excluded.


 


“Continuing Directors”  means, as of any date of
determination, any member of the Board of Directors of the Company who (i) was
a member of the Board of Directors on the date of this Indenture and after
giving effect to the acquisition of Great Lakes Dredge & Dock Corporation
pursuant to the Merger Agreement or (ii) was nominated for election or elected
to the Board of Directors with the approval of a majority of the Continuing
Directors who were members of the Board at the time of the nomination or
election or was otherwise designated by a Principal or a Related Party of a
Principal.


 


“Corporate Trust Office of the Trustee”
shall be at the address of the Trustee specified in Section 13.02 hereof,
or such other address as to which the Trustee may give notice to the Company.


 


“Credit Facilities”  means, with respect to the
Company or its Restricted Subsidiaries, one or more debt facilities (including,
without limitation, the New Credit Facility) or commercial paper facilities or
indentures with banks or other institutional lenders or a trustee providing for
revolving credit loans, term loans, receivables financing (including through
the sale of receivables to such lenders or to special purpose entities formed
to borrow from such lenders against such receivables) or letters of credit or
issuance of debt securities to institutional investors, in each case, as
increased as permitted by the terms of this Indenture, and amended, restated,
modified, renewed, refunded, replaced, restated, substituted or refinanced in
whole or in part from time to time.


 


“Custodian” means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.03(c) as Custodian with respect to the Notes, and
any and all successors thereto appointed as custodian hereunder and having
become such pursuant to the applicable provisions of this Indenture.


 


“Default” means any event that is or with the passage of time or the giving of
notice or both would be an Event of Default.


 


“Definitive Note” means a certificated Note
registered in the name of the Holder thereof and issued in accordance with
Section 2.06 or 2.10 hereof, in substantially the form of Exhibit A
hereto, except that such Note shall not bear the Global Note Legend and shall
not have the “Schedule of Exchanges of Interests in the Global Note”
attached thereto.


 


“Depositary” means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.03(b) hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provisions of this Indenture.


 


“Designated Noncash Consideration”  means
any non-cash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is designated as Designated
Noncash Consideration pursuant to an Officers’ Certificate executed by the
Chief Financial Officer of the Company. 
Such Officers’ Certificate shall state the basis of such valuation.  A particular item of Designated Noncash 


 


6

















 


Consideration shall no longer be considered to be
outstanding to the extent it has been sold or liquidated for cash (but only to
the extent of the cash received).


 


“Designated Senior Debt”  means


 


(i)                                     any
Obligations outstanding under the New Credit Facility (including letters of
credit),


 


(ii)                                  any
Permitted Bonding Obligation and


 


(iii)                               any other Senior Debt
permitted under this Indenture the principal amount of which is $25.0 million
or more and that has been designated by the Company as “Designated Senior Debt.”  Notwithstanding
the foregoing, Indebtedness under the New Credit Facility shall be deemed
outstanding for purposes of this definition at all times when the lenders
thereunder have an effective commitment to extend credit thereunder, regardless
of whether any such Indebtedness is actually outstanding at that time.


 


“Designated Vessels”  means the dredge “New
York,” the dredge “Victoria Island,” the “BTS-401 and BTS-402 Scows,” the
“Bottom-Dump Barges G.L.61, G.L.62 and G.L.65,” the dredge “Texas” and the
dredge “Pontchartrain” and ancillary equipment related thereto.


 


“Disqualified Stock”  means any Capital Stock
that, by its terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, at the option of the holder), or
upon the happening of any event (other than optional redemption by the Company
thereof), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder, in whole or
in part, on or prior to the date that is 91 days after the date on which the
Notes mature; provided, however,  that any Capital Stock that
would constitute Disqualified Stock solely because the holders have the right
to require the Company to repurchase the Capital Stock upon the occurrence of a
Change of Control or an Asset Sale shall not constitute Disqualified Stock if
the terms of the Capital Stock provide that the Company may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless the repurchase
or redemption complies with Section 4.10


 


“Distribution Compliance Period” means the
40-day distribution compliance period as defined in Regulation S.


 


“Domestic Subsidiary”  means any Restricted
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.


 


“Equipment Financing Facility”  means
that credit agreement, dated December 17, 2003, by and between Great Lakes
Dredge & Dock Company and General Electric Capital Corporation, providing
for up to $23.4 million of term borrowings.


 


“Equity Interests”  means Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).


 


“Equity Offering”  means a public or private
offering or sale of Equity Interests (other than Disqualified Stock) of the
Company or a direct or indirect parent of the Company (so long as the net
proceeds thereof are contributed to the common equity capital of the Company).


 


“Euroclear” means Euroclear Bank,
S.A./N.V., as operator of the Euroclear systems, and any successor thereto.


 


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


 


“Exchange Notes”  means new Notes of the
Company issued in the Exchange Offer, provided that such new Notes have terms
substantially identical in all material respects to the Notes (except that
Exchange Notes will not contain terms with respect to transfer restrictions)
for which such offer is being made.


 


7

















 


“Exchange Offer”  means the registration by
the Company under the Securities Act of the Exchange Notes pursuant to a
Registration Statement pursuant to which the Company offers the holders of all
outstanding Transfer Restricted Securities (as defined in the Registration Rights
Agreement) the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such holders for Exchange Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer Restricted
Securities validly tendered in such exchange offer by such holders.


 


“Exchange Offer Registration Statement” has
the meaning set forth in a Registration Rights Agreement.


 


“Excluded Contribution”  means the net cash proceeds
received by the Company after the date of this Indenture from (a) contributions
to its common equity capital and (b) the sale (other than to a Subsidiary or
pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement of the Company or any of its Subsidiaries)
of Capital Stock (other than Disqualified Stock) of the Company, in each case
designated within 60 days of the receipt of such net cash proceeds as Excluded
Contributions pursuant to an Officers’ Certificate, the cash proceeds of which
are excluded from the calculation set forth in clause (iv)(c)(iii) of the first
paragraph of Section 4.10


 


“Existing Indebtedness”  means Indebtedness
(including Guarantees) of the Company and its Subsidiaries (other than
Indebtedness under the New Credit Facility) in existence on the date of this
Indenture (after giving effect to the transactions contemplated by the Merger
Agreement), until permanently repaid.


 


“Fixed Charges”  means, with respect to any
Person for any period, the sum, without duplication, of


 


(i)                                     the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers’ acceptance financings, and net payments
(if any) pursuant to interest rate Hedging Obligations (but excluding the
amortization or write-off of financing fees in connection with the
Transactions), net of interest income of such Person and its Restricted
Subsidiaries for such period, and


 


(ii)                                  the
consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period, and


 


(iii)                               any interest expense on
Indebtedness of another Person that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries (whether or not the Guarantee or Lien is called
upon), and


 


(iv)                              the
product of (a) all cash dividend payments and non-cash dividend payments on any
series of preferred stock and any series of Disqualified Stock, in each case,
of such Person or any of its Restricted Subsidiaries, other than dividend
payments (x) on Equity Interests payable solely in Equity Interests of the
Company (other than Disqualified Stock) or (y) to the Company or a Subsidiary
Guarantor, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP.


 


“Fixed Charge Coverage Ratio”  means
with respect to any Person for any period, the ratio of the Consolidated Cash
Flow to the Fixed Charges of such Person for such period.  In the event that the referent Person or any
of its Restricted Subsidiaries incurs, assumes, Guarantees, repays or redeems
any Indebtedness (other than repayment of revolving credit borrowings that are
not accompanied by a permanent reduction in the commitment amount) or issues or
redeems preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the “Calculation
Date”),  then the Fixed Charge Coverage Ratio shall be 


 


8

















 


calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred stock, as if the same had occurred at the beginning of
the applicable four-quarter reference period. 
In addition, for purposes of making the computation referred to above,


 


(i)                                     acquisitions
and dispositions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers (including the acquisition described in
the Offering Memorandum) or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be given pro forma
effect as if they occurred on the first day of the four-quarter reference
period in accordance with Regulation S-X under the Securities Act and
Consolidated Cash Flow for such reference period shall be calculated without
giving effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income and, in connection with any acquisition (including the
acquisition described in the Offering Memorandum), shall be calculated giving pro forma
effect to Pro Forma Cost Savings;


 


(ii)                                  the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded in accordance with clause (i) above;


 


(iii)                               the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall
be excluded in accordance with clause (i) above, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of
the referent Person or any of its Restricted Subsidiaries following the
Calculation Date;


 


(iv)                              Consolidated
Cash Flow shall be calculated giving pro forma effect to the creation,
designation or redesignation of Restricted and Unrestricted Subsidiaries, as if
such creation, designation or redesignation occurred on the first day of the
four-quarter reference period; and


 


(v)                                 if
any Indebtedness being incurred bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term as at the Calculation Date in excess of
12 months).


 


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


 


“GAAP”  means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, in each case, which are in
effect on the date of this Indenture.


 


“Global Note Legend” means the legend set
forth in Section 2.06(g)(ii), which is required to be placed on all Global
Notes issued under this Indenture.


 


“Global Notes” means the global Notes in
the form of Exhibit A hereto issued in accordance with Article 2 hereof.


 


“Guarantee”  means a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner (including, without
limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements), of all or any part of any Indebtedness.


 


“Hedging Obligations”  means, with respect to any
Person, the obligations of such Person under


 


9

















 


(i)                                     interest
rate or currency swap agreements, interest rate cap agreements and interest
rate collar agreements,


 


(ii)                                  other
agreements or arrangements designed for the purpose of fixing, hedging or
swapping interest rate risk or currency exchange rate risk, and


 


(iii)                               commodities purchase and
sale agreements and other similar agreements designed for the purpose of
fixing, hedging or swapping the price risk related to raw materials or other
commodities (including fuel) used by the Company and its Restricted
Subsidiaries in the ordinary course of business.


 


“Holder” means a Person in whose name a
Note is registered.


 


“IAI
Global Note” means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any, to the extent
required by the Applicable Procedures.


 


“Indebtedness”  means, with respect to any
Person, any indebtedness of such Person, whether or not contingent, in respect
of:


 


(i)                                     borrowed
money, or


 


(ii)                                  evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
related reimbursement agreements), or


 


(iii)                               bankers’ acceptances, or


 


(iv)                              representing
Capital Lease Obligations, or


 


(v)                                 the
balance deferred and unpaid of the purchase price of any property except any
such balance that constitutes an accrued expense or trade payable, or


 


(vi)                              representing
the net amount owing under any Hedging Obligations relating to interest rate
risk,


 


if and to the extent any
of the foregoing (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, as well as all Indebtedness of others secured by a Lien
on any asset of such Person (whether or not such Indebtedness is assumed by
such Person) and, to the extent not otherwise included, the Guarantee by such
Person of any Indebtedness of any other Person.


 


“Indenture” means this instrument, as
originally executed or as it may from time to time be supplemented or amended
in accordance with Article 9 hereof.


 


“Indirect Participant” means a Person who
holds a beneficial interest in a Global Note through a Participant.


 


“Initial Notes” means $175,000,000 in
aggregate principal amount of Notes issued under this Indenture on the date
hereof.


 


“Initial Public Offerings”  means
the issuance and sale of common equity securities of the Company, or any direct
or indirect parent of the Company (but only if the proceeds thereof are
contributed to the common equity capital of the Company), pursuant to a firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act.


 


10

















 


“Institutional Accredited Investor” means
an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.


 


“Interest
Payment Dates” shall have the meaning set forth in paragraph 1 of
each Note.


 


“Investments”  means, with respect to any
Person, all investments by such Person in other Persons (including Affiliates)
in the forms of direct or indirect loans (including Guarantees of Indebtedness
or other Obligations), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP; provided that
an acquisition of Equity Interests or other securities by the Company or any of
its Restricted Subsidiaries for consideration consisting solely of Equity
Interests (other than Disqualified Stock) of the Company shall not be deemed to
be an Investment.  If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to the sale or disposition, such Person is no longer
a Restricted Subsidiary of the Company, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of the Restricted Subsidiary not sold
or disposed of in an amount determined as provided in the final paragraph of
Section 4.10.


 


“Issue Date” means December 22, 2003.


 


“Lease Deficiency Claim”  means
all obligations and claims arising under the Bareboat Charter Agreement dated
as of October 9, 1998 (as amended, restated, supplemented or otherwise
modified, the “Charter Agreement”) by and between GLDD and Banc of America
Leasing & Capital, LLC and the other documents executed in connection
therewith (the “Transaction Documents”) which remain outstanding after
giving effect to (i) the termination of Great Lakes Dredge & Dock Company’s
obligation to pay basic hire for the dredge which is chartered under the
Charter Agreement (the “Dredge”), (ii) the sale of the Dredge at
public or private sale and (iii) the application of the proceeds from such sale
to the payment of any outstanding obligations under the Charter Agreement and
other Transaction Documents pursuant to the terms thereof.


 


“Legal Holiday” means a Saturday, a Sunday
or a day on which banking institutions in the city of New York, the city of
Chicago, the city in which the Corporate Trust Office of the Trustee is located
or any other place of payment on the Notes are authorized by law, regulation or
executive order to remain closed.


 


“Letter of Transmittal” means the letter of
transmittal, or its electronic equivalent in accordance with the Applicable
Procedures, to be prepared by the Company and sent to all Holders of the
Initial Notes or any Additional Notes for use by such Holders in connection
with an Exchange Offer.


 


“Lien”  means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature of a conditional sale or title retention agreement, any option or
other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).


 


“Liquidated Damages” has the meaning set
forth in a Registration Rights Agreement relating to amounts to be paid in the
event the Company fails to satisfy certain conditions set forth therein.  For all purposes of this Indenture, the term
“interest” shall include Liquidated Damages, if any, with respect to the Notes.


 


“Madison Dearborn Partners”  means
Madison Dearborn Partners, LLC.


 


“Management Investor”  means those executive
officers of the Company or its Subsidiaries acquiring Equity Interests in any
direct or indirect parent company of the Company in connection with the Transactions.


 


11

















 


“Material Subsidiary”  means any Domestic
Subsidiary that at any time has Total Assets of $500,000 or more.


 


“Merger Agreement”  means the Amended and
Restated Agreement and Plan of Merger among GLDD Acquisitions Corp., GLDD
Merger Sub, Inc., Great Lakes Dredge & Dock Corporation and Vectura Holding
Company LLC, dated as of December 22, 2003, in connection with the sale of
all of the outstanding common stock of Great Lakes Dredge & Dock Corporation
to GLDD Acquisitions Corp. and the merger of GLDD Merger Sub, Inc. with and
into Great Lakes Dredge & Dock Corporation.


 


“Moody’s”
means Moody’s Investors Service, Inc. or any successor to the rating agency
business of Moody’s Investors Service, Inc.


 


“Net Income”  means, with respect to any
Person for any period, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of dividends on
preferred interests, excluding, however,


 


(a)                                  any
gain or loss, together with any related provision for taxes on the gain or
loss, realized in connection with (1) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) (without
giving effect to the $2.0 million threshold provided for in the definition
thereof) or (2) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries and


 


(b)                                 any
extraordinary or nonrecurring gain or loss, together with any related provision
for taxes on the extraordinary or nonrecurring gain or loss.


 


“Net Proceeds”  means the aggregate cash
proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in
any Asset Sale (including Designated Noncash Consideration)), net of


 


(i)                                     the
direct costs relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any related
relocation expenses,


 


(ii)                                  any
taxes paid or payable as a result of the Asset Sale (after taking into account
any available tax credits or deductions, any tax sharing arrangements),


 


(iii)                               any reserve for
adjustment in respect of the sale price of the asset or assets established in
accordance with GAAP,


 


(iv)                              payments
made to repay Indebtedness or any other obligation outstanding at the time of
such Asset Sale that either (A) is secured by a Lien on the property or assets
sold or (B) is required to be paid as a result of such sale,


 


(v)                                 all
distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Sale, and


 


(vi)                              appropriate
amounts to be provided by the Company or any Restricted Subsidiary as a reserve
against any liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in conformity
with GAAP.


 


“New Credit Facility”  means that Credit Agreement,
dated as of the date of this Indenture, by and among the Company, Lehman
Brothers Inc. and Credit Suisse First Boston, acting through its Cayman Islands
Branch, as joint advisors, joint lead arrangers and joint book runners, Bank of
America, N.A., as administrative agent, and the other lenders that are party to
the Credit Agreement, initially providing for up to $60.0 million of 


 


12

















 


revolving credit borrowings or letters of credit and
$60.3 million of term borrowings, including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as increased as permitted by the terms of this
Indenture, and amended, modified, renewed, restated, refunded, replaced or
refinanced from time to time, including any agreement extending the maturity
of, refinancing, replacing or otherwise restructuring (including adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders or through the issuance of debt securities.


 


“Non-Recourse Debt”  means Indebtedness


 


(i)                                     as
to which neither the Company nor any of its Restricted Subsidiaries (a)
provides credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), (b) is directly or indirectly
liable (as a guarantor or otherwise), or (c) constitutes the lender; and


 


(ii)                                  no
default with respect to which (including any rights that any holders may have
to take enforcement action against an Unrestricted Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Indebtedness
(other than the Notes) of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause its payment to be
accelerated or payable prior to its Stated Maturity; and


 


(iii)                               as to which the lenders
have been notified in writing that they will not have any recourse to the stock
or assets of the Company or any of its Restricted Subsidiaries.


 


“Obligations”  means any principal,
interest, penalties, fees, indemnifications, costs, expenses, reimbursement
obligations, damages and other liabilities and obligations which may arise
under or in connection with the New Credit Facility or the bonding agreement or
under or in connection with the documentation governing any Indebtedness, and
in all cases whether direct or indirect, absolute or contingent, now
outstanding or hereafter created, assumed or incurred and including, without
limitation, interest accruing subsequent to the filing of a petition in
bankruptcy or the commencement of any insolvency, reorganization or similar
proceedings at the rate provided in the relevant document, whether or not an
allowed claim, and any obligation to redeem or defease any of the foregoing.


 


“Offering
Memorandum” means the offering memorandum, dated
December 12, 2003, relating to the Initial Notes.


 


“Officer” means the Chief Executive
Officer, the President, the Chief Financial Officer, the Secretary, any
Executive Vice President or any Senior Vice President of the Company.


 


“Officers’ Certificate” means a certificate,
in form and substance reasonably satisfactory to the Trustee, signed by two
Officers of the Company, at least one of whom shall be the principal executive
officer or principal financial officer of the Company, and delivered to the
Trustee.


 


“Opinion of Counsel” means a written
opinion from legal counsel and which meets the requirements of
Section 13.05 hereof. The counsel may be an employee of or counsel to the
Company.


 


“Participant” means, with respect to the
Depositary, Euroclear or Clearstream, a Person who has an account with the
Depositary, Euroclear or Clearstream, respectively, and, with respect to DTC,
shall include Euroclear and Clearstream.


 


“Permitted Bonding Obligations”  means
(i) obligations incurred by the Company or any of its Subsidiaries (including
Guarantees) with respect to letters of credit, bankers’ acceptances, bid,
payment, performance, surety, appeal or similar bonds and completion guarantees
in the ordinary course of business and (ii) obligations incurred by the Company
or any of its Subsidiaries (including Guarantees) under the Bonding Agreement.


 


13

















 


“Permitted Business”  means any of the businesses
engaged in by Great Lakes Dredge & Dock Corporation and its Restricted
Subsidiaries on the date of this Indenture and any other reasonably related,
complementary or ancillary business or other business that is a reasonable
extension or expansion of such businesses.


 


“Permitted Investments”  means


 


(a)                                  any
Investment in the Company or in a Restricted Subsidiary of the Company;


 


(b)                                 any
Investment in Cash Equivalents;


 


(c)                                  any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary of the Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company;


 


(d)                                 any
Investment made as a result of the receipt of assets not constituting Cash
Equivalents from an Asset Sale that was made pursuant to and in compliance with
Section 4.12;


 


(e)                                  any
acquisition of assets solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;


 


(f)                                    other
Investments in any Person having an aggregate fair market value (measured on
the date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (f) that are at the time outstanding, not to exceed $20.0
million, provided, however,  that
if an Investment pursuant to this clause (f) is made in any Person that is not
a Restricted Subsidiary of the Company at the date of the making of the
Investment and such person becomes a Restricted Subsidiary after such date,
such Investment shall thereafter be deemed to have been made pursuant to clause
(a) above, and shall cease to have been made pursuant to this clause (f);


 


(g)                                 Investments
received in settlement, compromise or resolution of: (a) obligations of trade
creditors, suppliers or customers that were incurred in the ordinary course of
business of the Company or any of its Subsidiaries including pursuant to a plan
of reorganization or similar arrangement upon the bankruptcy or insolvency of
such trade creditors, suppliers or customers or (b) litigation, arbitration or
other disputes with Persons;


 


(h)                                 Investments
existing on the date of this Indenture;


 


(i)                                     loans
and advances to officers, directors, members and employees for business-related
travel expenses, moving expenses and other similar expenses, in each case,
incurred in the ordinary course of business not to exceed $2.0 million in the
aggregate at any time;


 


(j)                                     any
Hedging Obligation;


 


(k)                                  Investments
consisting of intercompany loans from the Company and its Restricted
Subsidiaries to Restricted Subsidiaries, including Restricted Subsidiaries that
are not Subsidiary Guarantors;


 


(1)                                  Investments
in joint ventures formed in the ordinary course of business for the purpose of
bidding and completing specific projects within a Permitted Business in an
aggregate amount at any one time outstanding not to exceed $7.5 million;


 


(m)                               Guarantees
otherwise permitted by the terms of this Indenture; and


 


(n)                                 Investments
resulting from the acquisition of a Person that at the time of such acquisition
held instruments constituting Investments that were not acquired in
contemplation of the acquisition of such Person.


 


14

















 


“Permitted Junior Securities”  means
Equity Interests in the Company or debt securities that are subordinated to all
Senior Debt (and any debt securities issued in exchange for Senior Debt) to
substantially the same extent as, or to a greater extent than, the Notes are
subordinated to Senior Debt pursuant to this Indenture; provided that no such Equity
Interests or debt securities may be issued if the rights of the holders of the
Senior Debt are impaired by the issuance in connection with a reorganization,
including, without limitation, by reason of such rights being impaired within
the meaning of Section 1124 of Title 11 of the United States Code.


 


“Permitted Liens”  means


 


(i)                                     Liens
on assets of the Company and any Restricted Subsidiary securing Senior Debt provided,  in
each case, that such Indebtedness was permitted by the terms of this Indenture
to be incurred;


 


(ii)                                  Liens
in favor of the Company or a Restricted Subsidiary;


 


(iii)                               Liens on property or
assets of, or any equity interest in or secured debt of, a Person existing at
the time that Person is merged with or into or consolidated with the Company or
any Restricted Subsidiary of the Company; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company;


 


(iv)                              Liens
on property (including Capital Stock) existing at the time the property was
acquired by the Company or any Restricted Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of the acquisition of
property;


 


(v)                                 Liens
to secure the performance of statutory obligations, surety or appeal bonds, bid
bonds, payment bonds, performance and lien bonds or other obligations of a like
nature incurred in the ordinary course of business;


 


(vi)                              Liens
to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (iv) or (viii) of the second paragraph of Section 4.09 covering, in
the case of such clause (iv), only the assets (including any insurance, leases
and charters relating to such assets, and any proceeds thereof) acquired,
constructed, repaired or improved with such Indebtedness;


 


(vii)                           Liens existing on the date
of this Indenture and any renewals or extensions thereof on terms no more
restrictive and secured by the same collateral as existing on the date of this
Indenture;


 


(viii)                        Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor;


 


(ix)                                Liens
on assets of Unrestricted Subsidiaries that secure Non-Recourse Debt of
Unrestricted Subsidiaries;


 


(x)                                   Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $7.5
million at any one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or materially
impair the use of the property in the operation of business by the Company or
the Restricted Subsidiary;


 


(xi)                                statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens (including maritime Liens) imposed by
law incurred in the ordinary course of business;


 


15

















 


(xii)                             Liens incurred or deposits
made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security or
similar obligations, or to secure the performance of tenders, statutory or
regulatory obligations, surety and appeal bonds, bids, leases, government contracts,
payment and performance and return-of-money bonds, bankers’ acceptances, and
other similar obligations (exclusive of obligations for the payment of borrowed
money);


 


(xiii)                          judgment or attachment Liens
not giving rise to an Event of Default;


 


(xiv)                         easements, rights-of-way,
municipal and zoning restrictions and other similar charges, title defects,
encumbrances or irregularities in respect of real property not interfering in
any material respect with the ordinary course of the business of the Company or
any of its Restricted Subsidiaries;


 


(xv)                            any
interest or title of a lessor under any lease, whether or not characterized as
capital or operating; provided that such Liens do not extend to
any property or assets which are not leased property subject to such lease;


 


(xvi)                         Liens securing Hedging
Obligations;


 


(xvii)                      Liens securing reimbursement
obligations with respect to letters of credit and products and proceeds
thereof;


 


(xviii)                   Liens securing Permitted Refinancing
Indebtedness which is incurred to refinance any Indebtedness which has been
secured by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture;


 


(xix)                           Liens in favor of the
Company or any of its Restricted Subsidiaries securing Indebtedness of any
Restricted Subsidiary that is not a Subsidiary Guarantor;


 


(xx)                              Liens
with respect to current wages of the master and crew and for wages of a
stevedore when employed directly by the Company or any Subsidiary of the
Company, or by the charterer, operator, master or agent of any of the vessels
owned or operated by the Company or any Subsidiary of the Company; and


 


(xxi)                           Liens for salvage (including
contract salvage); and


 


(xxii)                        Liens to secure Indebtedness of
any Foreign Restricted Subsidiary permitted to be incurred under
Section 4.09 covering only the assets of such Foreign Restricted
Subsidiary.


 


“Permitted Refinancing Indebtedness”  means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or to extend, refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:


 


(i)                                     the
principal amount (or accreted value, if applicable) of the Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus accrued interest on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses, premiums, penalties, fees and interest incurred in
connection therewith);


 


(ii)                                  if
the final maturity date of the Indebtedness being refinanced is earlier than
the final maturity of the Notes, the Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded or (b) if the final maturity of the Indebtedness being
refinanced is later than the final maturity of the Notes, the Permitted
Refinancing Indebtedness has a final maturity at least 91 days later than the
Notes;


 


16

















 


(iii)                               if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, the Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and


 


(iv)                              such
Indebtedness is incurred either (a) by the Company or any Subsidiary Guarantor
or (b) by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.


 


“Permitted Tax
Distributions” means the
payment of any distributions to permit direct or indirect Beneficial Owners of
shares of Capital Stock of the Company to pay federal, state or local income
tax liabilities arising from income to the Company and attributable to them
solely as a result of the Company and any intermediate entity through which the
holder owns such shares being a limited liability company, partnership or
similar entity for federal income tax purposes.


 


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


 


“Predecessor Note”  of
any particular Note means every previous Note evidencing all or a portion of
the same Indebtedness as that evidenced by such particular Note; and any Note
authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Note shall be deemed to evidence the same Indebtedness as
the lost, destroyed or stolen Note.


 


“Principals”  means (i) Madison Dearborn
Partners, (ii) the Management Investors and (iii) any Related Party of a Person
referred to in clauses (i) and (ii).


 


“Private Placement Legend” means the legend
set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued
under this Indenture except as otherwise permitted by the provisions of this
Indenture.


 


“Pro
Forma Cost Savings” means, with respect to any period, the
reduction in costs that were (i) directly attributable to an asset acquisition
and calculated on a basis that is consistent with Regulation S-X under the
Securities Act in effect and as applied as of the date of this Indenture, or
(ii) were actually implemented by the business that was the subject of any such
asset acquisition within six months of the date of the asset acquisition and
that are supportable and quantifiable by the underlying accounting records of
such business, in each case as if such reductions in cost had been effected as
of the beginning of the applicable period and, in the case of each of (i) and
(ii), are described, as provided below, in an Officers’ Certificate, as if all
such reductions in costs had been effected as of the beginning of such
period.  Pro Forma Cost Savings
described above shall be accompanied by a certificate delivered to the Trustee
from the Company’s chief financial officer that outlines the specific actions
taken or to be taken and the net cost savings achieved or to be achieved from
each such action.


 


“QIB” means a “qualified institutional
buyer” as defined in Rule 144A.


 


“Qualified Proceeds”  means any of the following
or any combination of the following: (i) cash, (ii) Cash Equivalents, (iii)
assets that are used or useful in a Permitted Business and (iv) the Capital
Stock of any Person engaged in a Permitted Business if, in connection with the
receipt by the Company or any Restricted Subsidiary of the Company of such
Capital Stock, (a) such Person becomes a Restricted Subsidiary of the Company
or any Restricted Subsidiary of the Company or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or any Restricted
Subsidiary of the Company.


 


“Registration Rights Agreement” means the
Registration Rights Agreement dated as of the Issue Date, among the Company,
the Guarantors from time to time party thereto and the initial purchasers named
therein, as such agreement may be amended, modified or supplemented from time
to time and, with respect to any 


 


17

















 


Additional Notes, one or more registration rights
agreements between the Company and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Company to the purchasers of Additional Notes
to register such Additional Notes, or exchange such Additional Notes for
registered Notes, under the Securities Act.


 


“Regular Record Date” for the interest
payable on any Interest Payment Date means the applicable date specified as a
“Record Date” on the face of the Note.


 


“Regulation S” means Regulation S
promulgated under the Securities Act.


 


“Regulation S Global Note” means a Global
Note in the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes sold for initial resale in reliance on Rule 903
of Regulation S.


 


“Related Party”  means


 


(a)                                  with
respect to Madison Dearborn Partners


 


(i)                     any
investment fund controlled by or under common control with, Madison Dearborn
Partners, and any officer, director or employee of Madison Dearborn Partners or
any entity controlled by, or under common control with, Madison Dearborn
Partners,


 


(ii)                  any
spouse or lineal descendant (including by adoption and stepchildren) of the
officers, directors and employees referred to in clause (a)(i) above,


 


(iii)               any trust, corporation, partnership or
other entity, of which 80% in interest is held by beneficiaries, stockholders,
partners or owners who are one or more of the Persons described in clause
(a)(i) or (ii) above; and


 


(b)                                 with
respect to any officer or employee of the Company or a Subsidiary of the
Company (i) any spouse or lineal descendant (including by adoption and
stepchildren) of the officer or employee and (ii) any trust, corporation,
partnership or other entity, of which 80% in interest is held by beneficiaries,
stockholders, partners or owners who are the officer or employee of any of the
persons described in clause (b)(i) above or any combination of these identified
relationships.


 


“Representative”
means the trustee, agent or representative expressly authorized to act in such
capacity, if any, for an issue of Senior Debt.


 


“Responsible Officer,” when used with
respect to the Trustee, means any officer within the Corporate Trust Department
of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.


 


“Restricted Definitive Note” means one or
more Definitive Notes bearing the Private Placement Legend.


 


“Restricted Global Notes” means 144A Global
Notes, IAI Global Notes and Regulation S Global Notes.


 


“Restricted Investment”  means an Investment other
than a Permitted Investment.


 


“Restricted Subsidiary”  of a Person means any
Subsidiary of the referent Person that is not an Unrestricted Subsidiary.


 


18

















 


“Rule 144” means Rule 144 promulgated under
the Securities Act.


 


“Rule 144A” means Rule 144A promulgated
under the Securities Act.


 


“Rule 903” means Rule 903 promulgated under
the Securities Act.


 


“Rule 904” means Rule 904 promulgated under
the Securities Act.


 


“S&P”
means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or
any successor to the rating agency business thereof.


 


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


 


“Senior Debt”  means


 


(i)                                     all
Obligations of the Company or a Restricted Subsidiary outstanding under the New
Credit Facility, including any Guarantee and all related Hedging Obligations
and all accrued interest and fees following the commencement of a proceeding
under bankruptcy law, whether or not considered an allowed claim in such
proceeding,


 


(ii)                                  all
Permitted Bonding Obligations from time to time outstanding,


 


(iii)                               any other Indebtedness
of the Company or a Restricted Subsidiary permitted to be incurred under the
terms of this Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity with or subordinated in
right of payment to the Notes,


 


(iv)                              all
Obligations with respect to the foregoing; and


 


(v)                                 the
Lease Deficiency Claim.


 


Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include:


 


(I)                                    any
liability for federal, state, local or other taxes owed or owing,


 


(II)                                any
Indebtedness of the Company or any Restricted Subsidiary to any Subsidiary of
the Company,


 


(III)                            any trade payables,


 


(IV)                            any
Indebtedness which is expressly contractually subordinated to any other
Indebtedness of the Company or any of its Subsidiary Guarantors, or


 


(V)                                any
Indebtedness (other than pursuant to clause (i) above) that is incurred in
violation of this Indenture.


 


“Shelf Registration Statement” means the
registration statement relating to the registration of the Notes under Rule 415
of the Securities Act, as may be set forth in a Registration Rights Agreement.


 


“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 Act, as that Regulation is in effect on the date hereof.


 


“Stated Maturity”  means, with respect to any
installment of interest or principal (including any sinking fund payment) on
any series of Indebtedness, the date on which payment of interest or principal
was scheduled to be paid in the original documentation governing such
Indebtedness, and shall not include any 


 


19

















 


contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for their
payment.


 


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


 


“Subsidiary Guarantee” means the Guarantee
of the Notes by each of the Subsidiary Guarantors pursuant to Article 10
and in the form of the Guarantee attached as Exhibit E and any additional
Guarantee of the Notes to be executed by any Subsidiary of the Company pursuant
to Section 4.19.


 


“Subsidiary Guarantors”  means each of (i) the
wholly owned Domestic Restricted Subsidiaries of the Company on the date of
this Indenture and (ii) any other subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns.


 


“TIA” means the Trust Indenture Act of
1939, as amended, and the rules and regulations thereunder.


 


“Total Assets”  means, with respect to any
Person, the aggregate of all assets of such Person and its Subsidiaries as
would be shown on the most recently prepared consolidated balance sheet of such
Person in accordance with GAAP.


 


“Total Tangible Assets”  means, with respect to any
Person, the aggregate of all assets of such Person and its Subsidiaries as
would be shown on the consolidated balance sheet of such Person in accordance
with GAAP, less goodwill and intangibles.


 


“Transactions”  means the transactions
contemplated by the Merger Agreement and the related financing transactions,
including those under the New Credit Facility and this Indenture, in each case
as in effect on the date of this Indenture.


 


“Trustee” means the Person named as the
“Trustee” in the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean such successor Trustee.


 


“Unrestricted Definitive Notes” means one
or more Definitive Notes that do not and are not required to bear the Private
Placement Legend.


 


“Unrestricted Global Notes” means one or
more Global Notes that do not and are not required to bear the Private Placement
Legend and are deposited with and registered in the name of the Depositary or
its nominee.


 


“Unrestricted Subsidiary”  means
(i) any Subsidiary of the Company or any successor to any of them) that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:


 


(a)                                  has
no Indebtedness other than Non-Recourse Debt;


 


(b)                                 is
not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable to
the Company or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company;


 


20

















 


(c)                                  is
a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional Equity Interests or (y) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results;


 


(d)                                 has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and


 


(e)                                  has
at least one director on its Board of Directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries.


 


“U.S.
Government Securities”
means direct obligations (or certificates representing an ownership interest in
such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable or
redeemable at the issuer’s option.


 


“Voting Stock”  of any Person as of any
date means the Capital Stock of such Person that is at the time entitled to
vote in the election of the Board of Directors of such Person.


 


“Weighted Average Life to Maturity”  means,
when applied to any Indebtedness at any date, the number of years obtained by
dividing (i) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.


 


“Wholly Owned Restricted Subsidiary”  of
any Person means a Restricted Subsidiary of such Person all of the outstanding
Capital Stock or other ownership interests of which (other than directors’
qualifying shares) shall at the time be owned by such Person or by one or more
Wholly Owned Restricted Subsidiaries of such Person and one or more Wholly
Owned Restricted Subsidiaries of such Person.


 


SECTION 1.02.                                     OTHER DEFINITIONS.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
  “Acceleration Notice”

  	
   

  	
  6.02

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.14

  	
   

  
	
  “Asset Sale Offer”

  	
   

  	
  4.12

  	
   

  
	
  “Authentication Order”

  	
   

  	
  2.02

  	
   

  
	
  “Benefited Party”

  	
   

  	
  10.01

  	
   

  
	
  “Change of Control
  Offer”

  	
   

  	
  4.18

  	
   

  
	
  “Change of Control
  Payment”

  	
   

  	
  4.18

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.12

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “losses”

  	
   

  	
  7.07

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.09

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Offer to Purchase”

  	
   

  	
  3.09

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Blockage
  Notice”

  	
   

  	
  12.03

  	
   

  
	
  “Payment Blockage
  Period”

  	
   

  	
  12.03

  	
   

  
	
  “pay the Notes”

  	
   

  	
  12.03

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Security Register”

  	
   

  	
  2.03

  	
   

  
	
  “Tax Payments”

  	
   

  	
  4.10

  	
   

  



 


21

















 


SECTION 1.03.                                     INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.


 


(a)                                  Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.


 


(b)                                 The
following TIA terms used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes and the Subsidiary Guarantees;


 


“indenture
security holder” means a Holder;


 


“indenture
to be qualified” means this Indenture;


 


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


 


“obligor”
on the Notes means the Company and any successor obligor upon the Notes.


 


(c)                                  All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA and
not otherwise defined herein have the meanings so assigned to them either in
the TIA, by another statute or Commission rule, as applicable.


 


SECTION 1.04.                                     RULES OF CONSTRUCTION.


 


(a)                                  Unless
the context otherwise requires:


 


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


 


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


 


(iii)                               “or”
is not exclusive;


 


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


 


(v)                                 all
references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument as
originally executed;


 


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


 


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


 


(viii)                        provisions
apply to successive events and transactions; and


 


(ix)                                references
to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time thereunder.


 


22

















 


ARTICLE 2.


 


THE NOTES


 


SECTION 2.01.                                     FORM AND DATING.


 


(a)                                  General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form included in Exhibit A hereto,
which is hereby incorporated in and expressly made part of this Indenture.  The Notes may have notations, legends or
endorsements required by law, exchange rule or usage in addition to those set
forth on Exhibit A.  Each Note shall be
dated the date of its authentication. 
The Notes shall be in denominations of $1,000 and integral multiples
thereof.  The terms and provisions
contained in the Notes shall constitute a part of this Indenture and the
Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.  To the extent any provision of
any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.


 


(b)                                 Form of Notes.  Notes shall be issued initially in global
form and shall be substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto).  Notes issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).  Each Global Note
shall represent such aggregate principal amount of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions and transfers of interests
therein.  Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06
hereof.


 


(c)                                  Book-Entry Provisions.  This Section 2.01(c) shall apply only
to Global Notes deposited with the Trustee, as custodian for the
Depositary.  Participants and Indirect
Participants shall have no rights under this Indenture or any Global Note with
respect to any Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary, and the Depositary shall be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note 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 impair, as between the Depositary
and its Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Note.


 


(d)                                 Euroclear and Clearstream Procedures
Applicable.  The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and
Conditions of Clearstream” and “Customer Handbook” of Clearstream shall be
applicable to transfers of beneficial interests in Global Notes that are held
by Participants through Euroclear or Clearstream.


 


(e)                                  Certificated Securities.


 


(i)                                               The
Company shall issue Definitive Notes to all owners of beneficial interests in
Global Notes if: (1) at any time the Depositary notifies the Company that it is
unwilling or unable to continue to act as Depositary for the Global Notes or if
at any time the Depositary shall no longer be eligible to act as such because
it ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Company shall not have appointed a successor Depositary within
120 days after the Company receives such notice or becomes aware of such
ineligibility or (2) the Company, at its option, determines that the Global
Notes shall be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee.  Upon the
occurrence of any of the events set forth in clauses (1) or (2) above, the
Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee 


 


23

















 


shall authenticate and
deliver, Definitive Notes, in authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Notes in exchange
for such Global Notes.  Upon the
exchange of a Global Note for Definitive Notes, such Global Note shall be
cancelled by the Trustee or an agent of the Company or the Trustee.


 


(ii)                                            The
Company shall issue Definitive Notes to a Holder of, or an owner of a
beneficial interest in, a Global Note in exchange for such Global Note or
beneficial interest, as the case may be, upon written request from a Holder of,
or an owner of a beneficial interest in, a Global Note if a Default or Event of
Default shall have occurred and be continuing. 
Upon the occurrence of the foregoing, the Company shall execute, and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver, Definitive Notes, in
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Note owned by such Holder or such owner of a
beneficial interest.  Upon the exchange
of all or a portion of a Global Note for Definitive Notes, such Global Note
shall be cancelled or correspondingly reduced by the Trustee or an agent of the
Company or the Trustee.  In the event
that the Definitive Notes are not issued to an owner of a beneficial interest
in a Global Note promptly after the Company has received a request from such
owner, the Company expressly acknowledges, with respect to the right of any
Holder to pursue a remedy pursuant to this Indenture, the right of any such
owner to pursue such remedy with respect to the portion of the Global Note that
represents such owner’s beneficial interest as if such Definitive Notes had
been issued.


 


(iii)                                         Definitive
Notes issued in exchange for a Global Note pursuant to this Section 2.01
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its Participants or its Applicable
Procedures, shall instruct the Trustee or an agent of the Company or the
Trustee in writing.  The Trustee or such
agent shall deliver such Definitive Notes to or as directed by the Persons in
whose names such Definitive Notes are so registered or to the Depositary.


 


SECTION 2.02.                                     EXECUTION AND AUTHENTICATION.


 


(a)                                  One
Officer shall execute the Notes on behalf of the Company by manual or facsimile
signature.


 


(b)                                 If
an Officer whose signature is on a Note no longer holds that office at the time
a Note is authenticated by the Trustee, the Note shall nevertheless be valid.


 


(c)                                  A
Note shall not be valid until authenticated by the manual signature of the
Trustee.  The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.


 


(d)                                 The
Trustee shall, upon a written order of the Company signed by an Officer (an “Authentication Order”),
authenticate Notes for issuance.


 


(e)                                  The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  Unless otherwise
provided in such appointment, an authenticating agent may authenticate Notes
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 the Trustee to deal with
Holders, the Company or an Affiliate of the Company.


 


SECTION 2.03.                                     REGISTRAR AND PAYING AGENT.


 


(a)                                  The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). 
The Registrar shall keep a register (the “Security Register”) of the Notes and of their
transfer and exchange.  The Company may
appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Company may change any
Paying Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture.  If the Company 


 


24

















 


fails to appoint
or maintain another entity as Registrar or Paying Agent, the Trustee shall act
as such.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


(b)                                 The
Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to
the Global Notes.


 


(c)                                  The
Company initially appoints the Trustee to act as Registrar and Paying Agent and
to act as Custodian with respect to the Global Notes, and the Trustee hereby
agrees so to initially act.


 


SECTION 2.04.                                     PAYING AGENT TO HOLD MONEY IN TRUST.


 


The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes, and shall
notify the Trustee of any default by the Company in making any such
payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all funds held by it
relating to the Notes to the Trustee. 
The Company at any time may require a Paying Agent to pay all funds held
by it to the Trustee.  Upon payment over
to the Trustee, the Paying Agent (if other than the Company or a Subsidiary)
shall have no further liability for such funds.  If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
funds held by it as Paying Agent.  Upon
any Event of Default under Sections 6.01(vii) and (viii) hereof relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.


 


SECTION 2.05.                                     HOLDER LISTS.


 


The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA §312(a).  If the Trustee is not the Registrar, the
Company shall furnish or cause to be furnished to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders and the Company shall otherwise comply
with TIA §312(a).


 


SECTION 2.06.                                     TRANSFER AND EXCHANGE.


 


(a)                                  Transfer and Exchange of Global
Notes.  A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.  Upon the occurrence of any of the events set
forth in Section 2.01(e) above, Definitive Notes shall be issued in
denominations of $1,000 or integral multiples thereof and in such names as the Depositary
shall instruct the Trustee in writing. 
Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. 
Except as provided above, every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06(a), and beneficial
interests in a Global Note may not be transferred and exchanged other than as
provided in Section 2.06(b), (c) or (f) hereof.


 


(b)                                 Transfer and Exchange of Beneficial
Interests in the Global Notes. 
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. 
Beneficial interests in the Restricted Global Notes shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act.  Transfers of beneficial
interests in Global Notes also shall require compliance with either clause (i)
or (ii) below, as applicable, as well as one or more of the other following
clauses, as applicable:


 


(i)                                     Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the 


 


25

















 


Private Placement Legend
and any Applicable Procedures; provided, however, that prior to the
expiration of the Distribution Compliance Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to or for the account
or benefit of a “U.S. Person” (as defined in Rule 902(k) of Regulation S)
(other than a “distributor” (as defined in Rule 902(d) of the Regulation
S)).  Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.  Except as may be required by any Applicable
Procedures, no written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this
Section 2.06(b)(i).


 


(ii)                                  All
Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges
of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A)(1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B)(1) if permitted under
Section 2.06(a), a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (B)(1) above.  Upon consummation of an Exchange Offer by
the Company in accordance with Section 2.06(f) hereof, the requirements of
this Section 2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes.  Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.


 


(iii)                               Transfer
of Beneficial Interests in a Restricted Global Note to Another Restricted
Global Note.  A holder of a
beneficial interest in a Restricted Global Note may transfer such beneficial
interest to a Person who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Note if the transfer complies with the
requirements of Section 2.06(b)(ii) above and the Registrar receives the
following:


 


(A)                              if
the transferee will take delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof;


 


(B)                                if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Temporary Global Note or the Regulation S Permanent Global Note,
as the case may be, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)                                if
the transferee is required by the Applicable Procedures to take delivery in the
form of a beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item (3)
thereof, if applicable.


 


(iv)                              Transfer
or Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note. 
A holder of a beneficial interest in a Restricted Global Note may
exchange such beneficial interest for a beneficial interest in an 


 


26

















 


Unrestricted Global Note
or may transfer such beneficial interest to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if the
exchange or transfer complies with the requirements of Section 2.06(b)(ii)
above and:


 


(A)                              such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with a Registration Rights Agreement and the holder of the beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer, makes
any and all certifications required in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;


 


(B)                                such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)                                such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


(1)                                  if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or


 


(2)                                  if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


and, in each such case set forth in this clause (D),
if the Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer complies with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


If any such transfer is effected pursuant to clause
(B) or (D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall execute and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate one
or more Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
clause (B) or (D) above.


 


(v)                                 Transfer
or Exchange of Beneficial Interests in an Unrestricted Global Note for
Beneficial Interests in a Restricted Global Note Prohibited.  Beneficial interests in an Unrestricted
Global Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.


 


(c)                                  Transfer and Exchange of Beneficial
Interests in Global Notes for Definitive Notes.


 


(i)                                     Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes.  Subject to
Section 2.06(a) hereof, if any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:


 


27

















 


(A)                              if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;


 


(B)                                if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(C)                                if
such beneficial interest is being transferred to a “Non-U.S. Person” in an
offshore transaction (as defined in Section 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)                               if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;


 


(E)                                 if
such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable; or


 


(F)                                 if
such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,


 


the Trustee shall reduce
or cause to be reduced in a corresponding amount pursuant to Section 2.06(h)
hereof, the aggregate principal amount of the applicable Restricted Global
Note, and the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver a Restricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial
interest in the instructions delivered to the Registrar by the Depositary and
the applicable Participant or Indirect Participant on behalf of such
holder.  Any Restricted Definitive Note
issued in exchange for beneficial interests in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of
such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered.  Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.


 


(ii)                                  Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes.  Subject to
Section 2.06(a) hereof, a holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted
Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:


 


(A)                              such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made 


 


28

















 


through the Applicable
Procedures) as may be required by such Registration Rights Agreement;


 


(B)                                such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)                                such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


(1)                                  if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or


 


(2)                                  if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item (4)
thereof;


 


and, in each such case
set forth in this clause (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer complies with the
Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


Upon satisfaction of any of the conditions of any of
the clauses of this Section 2.06(c)(ii), the Company shall execute and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive
Note in the appropriate principal amount to the Person designated by the holder
of such beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf of
such holder, and the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.06(h), the aggregate principal
amount of the applicable Restricted Global Note.


 


(iii)                               Transfer
or Exchange of Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. 
Subject to Section 2.06(a) hereof, if any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note, then, upon satisfaction of the applicable conditions set forth
in Section 2.06(b)(ii) hereof, the Trustee shall reduce or cause to be
reduced in a corresponding amount pursuant to Section 2.06(h) hereof, the
aggregate principal amount of the applicable Unrestricted Global Note, and the
Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate principal amount to
the Person designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable Participant or
Indirect Participant on behalf of such holder. 
Any Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall designate in such instructions.  The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Unrestricted Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.


 


(d)                                 Transfer and Exchange of Definitive
Notes for Beneficial Interests in the Global Notes.


 


29

















 


(i)                                     Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes.  If any
holder of a Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in a Restricted Global Note or to
transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:


 


(A)                              if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Note for a beneficial interest in a Restricted Global
Note, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;


 


(B)                                if
such Restricted Definitive Note is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;


 


(C)                                if
such Restricted Definitive Note is being transferred to a “non-U.S. Person” in
an offshore transaction (as defined in Rule 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)                               if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;


 


(E)                                 if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable; or


 


(F)                                 if
such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,


 


the Trustee shall cancel
the Restricted Definitive Note, increase or cause to be increased in a
corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, a 144A Global Note, in
the case of clause (C) above, a Regulation S Global Note, and in all other
cases, a IAI Global Note.


 


(ii)                                  Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes.  A holder
of a Restricted Definitive Note may exchange such Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note only if:


 


(A)                              such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery is made
through the Applicable Procedures) as may be required by such Registration
Rights Agreement;


 


30

















 


(B)                                such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;


 


(C)                                such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


(1)                                  if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or


 


(2)                                  if
the holder of such Restricted Definitive Note proposes to transfer such
Restricted Definitive Note to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;


 


and, in each such case
set forth in this clause (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer shall be effected in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend shall no longer be
required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the
clauses in this Section 2.06(d)(ii), the Trustee shall cancel such
Restricted Definitive Note and increase or cause to be increased in a
corresponding amount pursuant to Section 2.06(h) hereof, the aggregate
principal amount of the Unrestricted Global Note.


 


(iii)                               Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes.  A holder
of an Unrestricted Definitive Note may exchange such Unrestricted Definitive
Note for a beneficial interest in an Unrestricted Global Note or transfer such
Unrestricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased in a corresponding amount
pursuant to Section 2.06(h) hereof the aggregate principal amount of one
of the Unrestricted Global Notes.


 


(iv)                              Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Restricted Global Notes Prohibited. 
An Unrestricted Definitive Note may not be exchanged for, or transferred
to Persons who take delivery thereof in the form of, beneficial interests in a
Restricted Global Note.


 


(e)                                  Transfer and Exchange of Definitive
Notes for Definitive Notes. 
Upon request by a holder of Definitive Notes and such holder’s
compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such
holder.  In addition, the requesting
holder shall provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this
Section 2.06(e).


 


(i)                                     Transfer
of Restricted Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(A)                              if
the transfer will be made pursuant to Rule 144A, a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;


 


31

















 


(B)                                if
the transfer will be made pursuant to Rule 903 or Rule 904, a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof;
and


 


(C)                                if
the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.


 


(ii)                                  Transfer
or Exchange of Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


(A)                              such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder, in the case of an exchange,
or the transferee, in the case of a transfer, makes any and all certifications
in the applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may be
required by a Registration Rights Agreement;


 


(B)                                any
such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;


 


(C)                                any
such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or


 


(D)                               the
Registrar receives the following:


 


(1)                                  if
the holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Notes for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including the certifications
in item (1)(d) thereof; or


 


(2)                                  if
the holder of such Restricted Definitive Notes proposes to transfer such
Restricted Definitive Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case
set forth in this clause (D), if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer complies with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the
clauses of this Section 2.06(e)(ii), the Trustee shall cancel the prior
Restricted Definitive Note and the Company shall execute, and upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate aggregate principal amount to the Person designated by the holder
of such prior Restricted Definitive Note in instructions delivered to the
Registrar by such holder.


 


(iii)                               Transfer
of Unrestricted Definitive Notes to Unrestricted Definitive Notes.  A holder of Unrestricted Definitive Notes
may transfer such Unrestricted Definitive Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note.  Upon receipt of a request to register such a



 


32

















 


transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the instructions
from the holder thereof.


 


(f)                                    Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate (A) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of the beneficial interests in the applicable Restricted Global Notes (1)
tendered for acceptance by Persons that make any and all certifications in the
applicable Letters of Transmittal (or are deemed to have made such
certifications if delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement and (2) accepted for exchange in
such Exchange Offer and (B) Unrestricted Definitive Notes in an aggregate
principal amount equal to the aggregate principal amount of the Restricted
Definitive Notes tendered for acceptance by Persons who made the foregoing certifications
and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Notes, the Trustee shall
reduce or cause to be reduced in a corresponding amount the aggregate principal
amount of the applicable Restricted Global Notes, and the Company shall execute
and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver to the
Persons designated by the holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate aggregate principal amount.


 


(g)                                 Legends.  The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.


 


(i)                                     Private
Placement Legend.


 


(A)                              Except
as permitted by clause (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:


 


“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER
SECURITIES LAWS.  NEITHER THIS NOTE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
(1) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS
(OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE
(OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION
DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED STATES,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (2) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF 


 


33

















 


AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS
TRANSFEROR TO THE TRUSTEE.  THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.  AS USED HEREIN, THE
TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”


 


(B)                                Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.


 


(ii)                                  Global
Note Legend.  Each Global Note shall
bear a legend in substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE 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.  UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.”


 


(h)                                 Cancellation and/or Adjustment of
Global Notes.  At such
time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof.  At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the aggregate principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, the aggregate principal amount of such other Global
Note shall be increased accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such increase.


 


34

















 


(i)                                     General Provisions Relating to
Transfers and Exchanges.


 


(i)                                     No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.18 and 9.05
hereof).


 


(ii)                                  All
Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of
the Company, evidencing the same debt as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


(iii)                               Neither
the Registrar nor the Company shall be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on the date
of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date (including a Regular Record Date) and the
next succeeding Interest Payment Date.


 


(iv)                              Prior
to due presentment for the registration of transfer of any Note, the Trustee,
any Agent and the Company may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of, premium, if any, and interest on such Note and for all
other purposes, in each case regardless of any notice to the contrary.


 


(v)                                 All
certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.


 


(vi)                              The
Trustee is hereby authorized and directed to enter into a letter of
representation with the Depositary in the form provided by the Company and to
act in accordance with such letter.


 


SECTION 2.07.                                     REPLACEMENT NOTES.


 


If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate a replacement Note.  If required by the Trustee or the Company, the Holder of such
Note shall provide indemnity that is sufficient, in the judgment of the Trustee
or the Company, to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer in connection
with such replacement.  If required by
the Company, such Holder shall reimburse the Company for its reasonable
expenses in connection with such replacement.


 


Every replacement Note issued in accordance with this
Section 2.07 shall be the valid obligation of the Company, evidencing the
same debt as the destroyed, lost or stolen Note, and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other
Notes duly issued hereunder.


 


SECTION 2.08.                                     OUTSTANDING NOTES.


 


(a)                                  The
Notes outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected by
the Trustee in accordance with Section 2.06 hereof, and those described in
this Section 2.08 as not outstanding. 
Except as set forth in Section 2.09 hereof, a Note shall not cease
to be outstanding because the Company or an Affiliate of the 


 


35

















 


Company holds the Note; provided,
however,
that Notes held by the Company or a Subsidiary of the Company shall be deemed
not to be outstanding for purposes of Section 3.07(b) hereof.


 


(b)                                 If
a Note is replaced pursuant to Section 2.07 hereof, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.


 


(c)                                  If
the principal amount of any Note is considered paid under Section 4.01
hereof, it shall cease to be outstanding and interest on it shall cease to
accrue.


 


(d)                                 If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date, a Purchase Date or a maturity date, funds
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.


 


SECTION 2.09.                                     TREASURY NOTES.


 


In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Affiliate of the Company, shall be considered
as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded.


 


SECTION 2.10.                                     TEMPORARY NOTES.


 


Until certificates representing Notes are ready for
delivery, the Company may prepare and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate
temporary Notes.  Temporary Notes shall
be substantially in the form of Definitive Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Global Notes or Definitive Notes in exchange for temporary
Notes, as applicable.


 


Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.


 


SECTION 2.11.                                     CANCELLATION.


 


The Company at any time may deliver Notes to the
Trustee for cancellation.  The Registrar
and Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
Upon sole direction of the Company, the Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall dispose of such cancelled Notes (subject
to the record retention requirements of the Exchange Act or other applicable
laws) in its customary manner unless by written order, signed by an Officer of
the Company, the Company directs them to be returned to it.  The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.


 


SECTION 2.12.                                     PAYMENT OF INTEREST; DEFAULTED INTEREST.


 


If the Company defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date; provided
that no such special record date shall be less than 10 days prior to the
related Interest Payment Date for such defaulted interest. At least 15 days
before the special record date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of the Company) shall
mail or 


 


36

















 


cause to be mailed to Holders a notice that states the
special record date, the related Interest Payment Date and the amount of such
interest to be paid.


 


SECTION 2.13.                                     CUSIP OR ISIN NUMBERS.


 


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


 


SECTION 2.14.                                     LIQUIDATED DAMAGES.


 


If Liquidated Damages are payable by the Company
pursuant to a Registration Rights Agreement and paragraph 1 of the Notes, the
Company shall deliver to the Trustee a certificate to that effect stating (i)
the amount of such Liquidated Damages that is payable and (ii) the date on
which such interest is payable pursuant to Section 4.01 hereof.  Unless and until a Responsible Officer of
the Trustee receives such a certificate or instruction or direction from the
Holders in accordance with the terms of this Indenture, the Trustee may assume
without inquiry that no Liquidated Damages are payable.  The foregoing shall not prejudice the rights
of the Holders with respect to their entitlement to Liquidated Damages as
otherwise set forth in this Indenture or the Notes and pursuing any action
against the Company directly or otherwise directing the Trustee to take any
such action in accordance with the terms of this Indenture and the Notes.  If the Company has paid Liquidated Damages
directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the details of such payment.


 


SECTION 2.15.                                     ISSUANCE OF ADDITIONAL NOTES.


 


The Company shall be entitled, subject to its
compliance with Section 4.09 hereof, to issue Additional Notes under this
Indenture which shall have identical terms as the Initial Notes issued on the
date hereof, other than with respect to the date of issuance, issue price and
rights under a related Registration Rights Agreement, if any.  The Initial Notes issued on the date hereof,
any Additional Notes and all Exchange Notes issued in exchange therefor shall
be treated as a single class for all purposes under this Indenture, including
directions, waivers, amendments, consents, redemptions and Offers to Purchase.


 


With respect to any Additional Notes, the Company
shall set forth in a Board Resolution and an Officers’ Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:


 


(a)                                  the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;


 


(b)                                 the
issue price, the issue date and the CUSIP and/or ISIN number of such Additional
Notes; provided,
however, that no Additional Notes may be issued at a price that
would cause such Additional Notes to have “original issue discount” within the
meaning of Section 1273 of the Code, other than a de minimis original issue
discount within the meaning of Section 1273 of the Code; and


 


(c)                                  whether
such Additional Notes shall be subject to the restrictions on transfer set
forth in Section 2.06 hereof relating to Restricted Global Notes and
Restricted Definitive Notes.


 


37

















 


SECTION 2.16.                                     RECORD DATE.


 


The record date for purposes of determining the
identity of Holders of Notes entitled to vote or consent to any action by vote
or consent or permitted under this Indenture shall be determined as provided
for in TIA Section 316(c).


 


ARTICLE 3.


 


REDEMPTION AND
PREPAYMENT


 


SECTION 3.01.                                     NOTICES TO TRUSTEE.


 


If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to
the Trustee, at least 30 days but not more than 60 days before a
redemption date (or such shorter period as allowed by the Trustee), an
Officers’ Certificate setting forth (a) the applicable section of this
Indenture pursuant to which the redemption shall occur, (b) the redemption
date, (c) the principal amount of Notes to be redeemed and (d) the redemption
price.


 


SECTION 3.02.                                     SELECTION OF NOTES TO BE REDEEMED.


 


If less than all of the Notes are to be redeemed at
any time, the Trustee shall select the Notes to be redeemed among the Holders
of the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance
with any other method the Trustee deems fair and appropriate.  In the event of partial redemption by lot,
the particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.


 


The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be
redeemed.  Notes and portions of Notes
selected shall be in amounts of $1,000 or integral multiples thereof; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not an integral multiple of
$1,000, shall be redeemed.  Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.


 


SECTION 3.03.                                     NOTICE OF REDEMPTION.


 


At least 30 days but not more than 60 days
prior to a redemption date, the Company shall mail or cause to be mailed, by
first class mail, a notice of redemption to each Holder whose Notes are to be
redeemed at such Holder’s registered address appearing in the Security
Register.


 


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


 


(a)                                  the
redemption date;


 


(b)                                 the
appropriate calculation of the redemption price, but need not include the
redemption price itself; the actual redemption price shall be set forth in an
Officers’ Certificate delivered to the Trustee no later than two (2) Business
Days prior to the redemption date;


 


(c)                                  if
any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such
Note, if applicable, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;


 


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


 


38

















 


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


 


(f)                                    that,
unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;


 


(g)                                 the
applicable section of this Indenture pursuant to which the Notes called
for redemption are being redeemed; and


 


(h)                                 that
no representation is made as to the correctness of the CUSIP and/or ISIN
numbers, if any, listed in such notice or printed on the Notes.


 


At the Company’s request, the Trustee shall give the
notice of redemption in the Company’s name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at
least 45 days (or such shorter period allowed by the Trustee), prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such
notice (in the name and at the expense of the Company) and setting forth the
information to be stated in such notice as provided in this Section 3.03.


 


SECTION 3.04.                                     EFFECT OF NOTICE OF REDEMPTION.


 


Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption shall become irrevocably
due and payable on the redemption date at the redemption price.  A notice of redemption may not be
conditional.


 


SECTION 3.05.                                     DEPOSIT OF REDEMPTION PRICE.


 


On or prior to 11:00 a.m. Eastern time on the Business
Day prior to any redemption date, the Company shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and, if
applicable, accrued and unpaid interest on all Notes to be redeemed on that
date.  The Trustee or the Paying Agent
shall promptly, and in any event within two (2) Business Days after the
redemption date, return to the Company any money deposited with the Trustee or
the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest, if any, on, all Notes to
be redeemed.


 


If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for purchase or redemption
in accordance with Section 2.08(d) hereof, whether or not such Notes are
presented for payment.  If a Note is
redeemed on or after a Regular Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest, if any, shall be paid to
the Person in whose name such Note was registered at the close of business on
such Regular Record Date.  If any Note
called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.


 


SECTION 3.06.                                     NOTES REDEEMED IN PART.


 


Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company’s written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.


 


SECTION 3.07.                                     OPTIONAL REDEMPTION.


 


(a)                                  Except
as set forth in clause (b) of this Section 3.07, the Notes shall not be
redeemable at the option of the Company prior to December 15, 2008.  Beginning on December 15, 2008, the
Company may redeem all or a portion of the Notes, at once or over time, after
giving the notice required pursuant to Section 3.03 hereof, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid 


 


39

















 


interest and Liquidated
Damages, if any, on the Notes redeemed, to the applicable redemption date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period commencing on December 15 of the years
indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
  103.875

  	
  %

  
	
  2009

  	
   

  	
  102.583

  	
  %

  
	
  2010

  	
   

  	
  101.292

  	
  %

  
	
  2011
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 At
any time prior to December 15, 2006, the Company may (but will not have
the obligation to) on any one or more occasions redeem up to 35% of the
aggregate principal amount of the Notes issued under this Indenture at a
redemption price (expressed as a percentage of principal amount) equal to
107.750% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date (subject to the right
of Holders of record on the relevant Regular Record Date to receive interest
due on the relevant Interest Payment Date), with the net cash proceeds of one
or more Equity Offerings, provided that at least 65% of the
aggregate principal amount of the Notes initially issued under this Indenture
remain outstanding immediately after the occurrence of the redemption
(excluding Notes held by the Company and its Subsidiaries); provided,
further,
that the redemption shall occur within 180 days of the date of the closing of
the Equity Offering.


 


(c)                                  Any
prepayment pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.


 


SECTION 3.08.                                     MANDATORY REDEMPTION.


 


Except as set forth in Sections 4.12 and 4.18 hereof,
the Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.


 


SECTION 3.09.                                     OFFER TO PURCHASE.


 


(a)                                  In
the event that, pursuant to Section 4.12 or 4.18 hereof, the Company shall
be required to commence an Asset Sale Offer or Change of Control Offer (each,
an “Offer to Purchase”),
it shall follow the procedures specified below.


 


(b)                                 The
Company shall cause a notice of the Offer to Purchase to be sent at least once
to the Dow
Jones News Service or similar business news service in the United
States.


 


(c)                                  The
Company shall commence the Offer to Purchase by sending, by first-class mail,
with a copy to the Trustee, to each Holder at such Holder’s address appearing
in the Security Register, a notice the terms of which shall govern the Offer to
Purchase stating:


 


(i)                                     that
the Offer to Purchase is being made pursuant to this Section 3.09 and
Section 4.12 or Section 4.18, as the case may be, and, in the case of
a Change of Control Offer, that a Change of Control has occurred, the
circumstances and relevant facts regarding the Change of Control and that a
Change of Control Offer is being made pursuant to Section 4.18;


 


(ii)                                  the
principal amount of Notes required to be purchased pursuant to
Section 4.12 or Section 4.18, as the case may be (the “Offer Amount”), the
purchase price set forth in Section 4.12 or Section 4.18, as
applicable, the Offer Period and the Purchase Date (each as defined below);


 


(iii)                               except
as provided in clause (ix), that all Notes timely tendered and not withdrawn
shall be accepted for payment;


 


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


 


40

















 


(v)                                           that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest after
the Purchase Date;


 


(vi)                                        that
Holders electing to have a Note purchased pursuant to an Offer to Purchase may
elect to have Notes purchased in integral multiples of $1,000 only;


 


(vii)                                     that
Holders electing to have a Note purchased pursuant to any Offer to Purchase
shall be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, the Depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice before the
close of business on the third Business Day before the Purchase Date;


 


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


 


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


 


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


 


(xi)                                          any
other procedures the Holders must follow in order to tender their Notes (or
portions thereof) for payment and the procedures that Holders must follow in
order to withdraw an election to tender Notes (or portions thereof) for
payment.


 


(d)                                 The
Offer to Purchase shall remain open for a period of at least 30 days but no
more than 60 days following its commencement, except to the extent that a
longer period is required by applicable law (the “Offer Period”).  No later than five (5) Business Days (and in any event no later
than the 60th day following the Change of Control) after the termination of the
Offer Period (the “Purchase Date”),
the Company shall purchase the Offer Amount or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Offer to
Purchase.  Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.  The Company shall publicly announce the
results of the Offer to Purchase on the Purchase Date.


 


(e)                                  On
or prior to the Purchase Date, the Company shall, to the extent lawful:


 


(i)                                               accept
for payment (on a pro rata basis to the extent necessary in connection with an
Asset Sale Offer), the Offer Amount of Notes or portions of Notes properly
tendered pursuant to the Offer to Purchase, or if less than the Offer Amount
has been tendered, all Notes tendered;


 


(ii)                                            deposit
with the Paying Agent funds in an amount equal to the purchase price as set
forth in Section 4.12 or Section 4.18, as applicable, in respect of
all Notes or portions of Notes properly tendered; and


 


(iii)                                         deliver
or cause to be delivered to the Trustee the Notes so accepted together with an
Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms
of this Section 3.09.


 


(f)                                    The
Depositary or the Paying Agent (or the Company, if acting as the Paying Agent),
as the case may be, shall promptly (but in the case of a Change of Control, not
later than 60 days from the date of the 


 


41

















 


Change of Control)
deliver to each tendering Holder the purchase price as set forth in
Section 4.12 or Section 4.18, as applicable.  In the event that any portion of the Notes
surrendered is not purchased by the Company, the Company shall promptly execute
and issue a new Note in a principal amount equal to such unpurchased portion of
the Note surrendered, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and
deliver (or cause to be transferred by book-entry) such new Note to such
Holder; provided,
however,
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof.


 


(g)                                 If
the Purchase Date is on or after a Regular Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Offer to Purchase.


 


(h)                                 The
Company shall comply, to the extent applicable, with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with the Offer to Purchase. 
To the extent that the provisions of any securities laws or regulations
conflict with Sections 4.12 or 4.18, as applicable, this Section 3.09 or
other provisions of this Indenture, the Company shall comply with applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under Sections 4.12 or 4.18, as applicable, this Section 3.09
or such other provision by virtue of such compliance.


 


(i)                                     Other
than as specifically provided in this Section 3.09, any purchase pursuant
to this Section 3.09 shall be made in accordance with the provisions of
Section 3.01 through 3.06 hereof.


 


ARTICLE 4.


 


COVENANTS


 


SECTION 4.01.                                     PAYMENT OF NOTES.


 


The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on, the Notes on the dates and in
the manner provided in this Indenture and the Notes.  Principal, premium, if any, and interest shall be considered paid
on the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.  Such Paying Agent shall return to the
Company promptly, and in any event, no later than five (5) Business Days following
the date of payment, any money (including accrued interest) that exceeds such
amount of principal, premium, if any, and interest paid on the Notes.  The Company shall pay Liquidated Damages, if
any, in the same manner, on the dates and in the amounts set forth in a
Registration Rights Agreement, the Notes and the Indenture.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace
periods), from time to time on demand at the same rate to the extent lawful.


 


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


 


SECTION 4.02.                                     MAINTENANCE OF OFFICE OR AGENCY.


 


(a)                                  The
Company shall maintain in the Borough of Manhattan, the city of New York, an
office or agency (which may be an office or drop facility of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
presented or surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall 


 


42

















 


give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency.  If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.


 


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


 


(c)                                  The
Company hereby designates the Corporate Trust Office of the Trustee, as one
such office, drop facility or agency of the Company in accordance with
Section 2.03 hereof.


 


SECTION 4.03.                                     REPORTS.


 


The Company will furnish
to the Holders of Notes


 


(a)                                  all
quarterly and annual financial and other information that would be required to
be contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company was required to file these Forms, including a “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” that describes
the financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, either on the face of
the financial statements or in the footnotes, the financial condition and
results of operations of the Company and its Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company) and, with respect to the annual information only,
a report thereon by the Company’s certified independent accountants and


 


(b)                                 all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file these reports, in each case within the
time periods specified in the Commission’s rules and regulations;


 


provided, however,  that
the first report to be furnished pursuant to this paragraph shall be the Annual
Report of the Company for the year ended December 31, 2003, which shall be
furnished as soon as is reasonably practicable following the end of the period
covered by that report but in no event later than March 31, 2004; provided, further,  that
the Company will not be required to furnish such information to the Trustee or
the registered holders of the Notes to the extent such information is
electronically filed with the Commission and is electronically available to the
public free of cost.  Notwithstanding
the foregoing, such requirements shall be deemed satisfied prior to the commencement
of the Exchange Offer or the effectiveness of the Shelf Registration Statement
by the filing with the Commission of the Exchange Offer Registration Statement
and/or Shelf Registration Statement, and any amendments thereto, with such
financial information that satisfies Regulation S-X of the Securities Act.


 


In addition, following the consummation of the
Exchange Offer, whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information and reports
with the Commission for public availability within the time periods specified
in the Commission’s rules and regulations (unless the Commission will not
accept the filing) and make such information available to securities analysts
and prospective investors upon request.


 


In addition, (i) at all times the Commission does not
accept the filings provided for in the preceding sentence or (ii) the filings
provided for in the preceding sentence do not contain the information required
to be delivered upon request pursuant to Rule 144A(d)(4) under the Securities
Act, then, in each case, the Company has agreed that, for so long as any Notes
remain outstanding, it will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


43

















 


SECTION 4.04.                                     COMPLIANCE CERTIFICATE.


 


(a)                                  The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate stating that a review of the activities
of the Company, the Subsidiary Guarantors and their respective Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company, the Subsidiary
Guarantors and their respective Subsidiaries have kept, observed, performed and
fulfilled their obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge the Company, the Subsidiary Guarantors and their respective
Subsidiaries have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and are not in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


(b)                                 The
Company shall otherwise comply with TIA §314(a)(2).


 


(c)                                  The
Company shall deliver to the Trustee, upon any Officer of the Company becoming
aware thereof, written notice in the form of an Officers’ Certificate of any
Default or Event of Default, its status and what action the Company is taking
or proposes to take with respect thereto.


 


SECTION 4.05.                                     TAXES.


 


The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments and
governmental levies, except such as are being contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not adverse
in any material respect to the Holders.


 


SECTION 4.06.                                     STAY, EXTENSION AND USURY LAWS.


 


The Company and the Subsidiary Guarantors covenant (to
the extent that they may lawfully do so) that they shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Company and the Subsidiary Guarantors (to the extent that
they may lawfully do so) hereby expressly waive all benefit or advantage of any
such law, and covenant that they shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
has been enacted.


 


SECTION 4.07.                                     CORPORATE EXISTENCE.


 


Subject to Article 5 hereof, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, partnership or other
existence of each Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Restricted Subsidiary, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes, or that such preservation is not necessary in connection
with any transaction not prohibited by this Indenture.


 


44

















 


SECTION 4.08.                                     PAYMENTS FOR CONSENT.


 


Neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless the consideration
is offered to be paid or is paid to all Holders of the Notes that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to the consent, waiver or agreement.


 


SECTION 4.09.                                     INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
DISQUALIFIED STOCK.


 


The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
Guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however,  that
the Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock and the Company’s Subsidiaries may incur Indebtedness or
issue shares of preferred stock if the Fixed Charge Coverage Ratio for the
Company’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which the
additional Indebtedness is incurred or the Disqualified Stock or preferred
stock is issued would have been at least 2.0 to 1, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock or preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period.


 


The provisions of the first paragraph of this
Section 4.09 will not apply to the incurrence of any of the following
items of Indebtedness (collectively, “Permitted Debt”):


 


(i)                                     the
incurrence by the Company or any Restricted Subsidiary of Indebtedness and
reimbursement obligations under letters of credit under the Credit Facilities
(including any Guarantee of the Indebtedness by any Restricted Subsidiary); provided that
the aggregate principal amount of all Indebtedness outstanding under all Credit
Facilities after giving effect to the incurrence does not exceed an amount
equal to $120.3 million (with letters of credit being deemed to have a
principal amount equal to the maximum face amount thereunder) plus (in the case
of any refinancing) the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses incurred in connection with the
refinancing, less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company or any Restricted Subsidiary to repay any term
Indebtedness under Credit Facilities pursuant to Section 4.12;


 


(ii)                                  the
incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness (including, but not limited to, Indebtedness outstanding under the
Equipment Financing Facility);


 


(iii)                               the incurrence by the
Company and the Subsidiary Guarantors of Indebtedness evidenced by the Initial
Notes and related Subsidiary Guarantees, and any Exchange Notes and related
Subsidiary Guarantees issued in respect of Notes outstanding under this
Indenture;


 


(iv)                              the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage or construction financings
or purchase money obligations or similar financings or refinancings thereof, in
each case incurred for the purpose of financing or refinancing all or any part
of the purchase price or cost of design, installation, construction, repair or
improvement of property (real or personal), plant or equipment used in the
business of the Company or any Restricted Subsidiary (whether through the
direct acquisition, construction, repair or improvement of such assets or the
acquisition of Equity Interests of any Person acquiring, constructing,
repairing, improving or otherwise owning such assets), in an aggregate
principal amount (which amount may, but need not, be incurred in whole or in
part under the Credit Facilities) not to exceed the greater of: (a) $30.0
million or (b) 10% of Total Tangible Assets (measured at the time of each
incurrence of any such Indebtedness), in either case outstanding at any time;


 


45

















 


(v)                                 the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used
to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)
that was permitted by this Indenture to be incurred under the first paragraph
hereof or clauses (ii), (iii), (v) and (xvi) of this paragraph;


 


(vi)                              the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided, however, that (i) if the Company is the
obligor on this Indebtedness, the Indebtedness is expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the Notes and
(ii)(A) any subsequent issuance or transfer of Equity Interests that results in
any Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary and (B) any sale or other transfer of any Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary shall be deemed, in
each case, to constitute an incurrence of Indebtedness by the Company or the
Restricted Subsidiary, as the case may be, that was not permitted by this
clause (vi);


 


(vii)                           the incurrence by the
Company or any of its Restricted Subsidiaries of Hedging Obligations (other
than for speculative purposes);


 


(viii)                        the incurrence by the Company
or any of its Restricted Subsidiaries of Indebtedness (in addition to
Indebtedness permitted by other clauses of this paragraph) in an aggregate
principal amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this clause (viii), not to
exceed $25.0 million;


 


(ix)                                the
incurrence by the Company’s Unrestricted Subsidiaries of Non-Recourse Debt, provided,
however,
that if any of this Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, that event shall be deemed to constitute an incurrence
of Indebtedness by a Restricted Subsidiary of the Company that was not
permitted by this clause (ix);


 


(x)                                   the
Guarantee by the Company or any Restricted Subsidiary of Indebtedness of the
Company or a Restricted Subsidiary, which Indebtedness was permitted to be
incurred by another provision of this Section 4.09; provided that in the case of
a Guarantee by any Restricted Subsidiary that is not a Subsidiary Guarantor,
such Restricted Subsidiary complies with Section 4.16;


 


(xi)                                Indebtedness
of the Company or a Restricted Subsidiary owed to (including obligations in
respect of letters of credit for the benefit of) any Person in connection with
worker’s compensation, health, disability or other employee benefits or
property, casualty or liability insurance provided by such Person to the
Company or the Restricted Subsidiary, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the
ordinary course of business and consistent with past practices;


 


(xii)                             the incurrence of
Permitted Bonding Obligations;


 


(xiii)                          [intentionally omitted]


 


(xiv)                         the incurrence of Indebtedness
arising from agreements of the Company or any Restricted Subsidiary providing
for indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the acquisition or
disposition of any business, assets or Capital Stock of a Restricted
Subsidiary; provided
that with respect to any such disposition, the maximum aggregate
liability of this Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and its Restricted Subsidiaries in connection
with any such disposition;


 


(xv)                            the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided, however,  that:


 


(a)                                  any
subsequent issuance or transfer of Equity Interests that results in any such
preferred stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and


 


46

















 


(b)                                 any
sale or other transfer of any such preferred stock to a Person that is not
either the Company or a Restricted Subsidiary of the Company;


 


will be deemed, in each
case, to constitute an issuance of such preferred stock by such Restricted
Subsidiary that was not permitted by this clause (xv);


 


(xvi)                         the incurrence by the Company
or any of its Restricted Subsidiaries of Indebtedness (in addition to
Indebtedness permitted by other clauses of this paragraph) to finance the
repurchase of the Designated Vessels, which are presently utilized by the
Company or a Restricted Subsidiary under operating leases, in each case on
terms not materially less favorable on the whole than those set forth in the
repurchase provisions contained in such operating leases as in effect as of the
date of this Indenture; and


 


(xvii)                      the Guarantee by the Company or a
Restricted Subsidiary of Indebtedness of Amboy Aggregates provided that the
maximum liability of the Company or a Restricted Subsidiary thereunder does not
exceed $5.0 million at any time.


 


For purposes of determining compliance with this
Section 4.09, in the event that an item of Indebtedness meets the criteria
of more than one of the categories of Permitted Debt described in clauses (i)
through (xvii) above or is entitled to be incurred pursuant to the first
paragraph of this Section 4.09, the Company shall, in its sole discretion,
classify (or later reclassify in whole or in part, in its sole discretion) that
item of Indebtedness in any manner that complies with this
Section 4.09.  Accrual of interest,
accretion or amortization of original issue discount, the payment of interest
on any Indebtedness in the form of additional Indebtedness with the same terms,
and the payment of dividends on Disqualified Stock in the form of additional
shares of the same class of Disqualified Stock will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of
this Section 4.09; provided, in each case, that the amount is
included in Fixed Charges of the Company as accrued.  Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Company or any Restricted
Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to
be exceeded solely as a result of fluctuations in exchange rates or currency
values.  The principal amount of any
Indebtedness supported by a letter of credit issued under a Credit Facility in
accordance with clause (1) above shall not be deemed a separate incurrence of
Indebtedness for purposes of this Section 4.09, but only to the extent of
the stated amount of such letter of credit.


 


The amount of any Indebtedness outstanding as of any
date will be:


 


(1)                                  the
accreted valued of the Indebtedness in the case of any Indebtedness issued with
original issue discount;


 


(2)                                  the
maximum fixed redemption liability with respect to any Disqualified Stock or
preferred stock of a Restricted Subsidiary;


 


(3)                                  the
principal amount of the Indebtedness, in the case of any other Indebtedness;
and


 


(4)                                  in
respect of Indebtedness of another Person secured by a Lien on the assets of
the specified Person, the lesser of:


 


(a)                  the
Fair Market Value of such asset at the date of determination, and


 


(b)                 the
amount of the Indebtedness of the other Person.


 


SECTION 4.10.                                     RESTRICTED PAYMENTS.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:


 


47

















 


(i)                                     declare
or pay any dividend or make any other payment or distribution on account of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct
or indirect holders of the Company’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than, in each case, dividends
or distributions payable in Equity Interests (other than Disqualified Stock) of
the Company or dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company);


 


(ii)                                  purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any
Equity Interests of the Company (other than Equity Interests owned by the
Company or any Restricted Subsidiary of the Company) or any direct or indirect
parent of the Company;


 


(iii)                               make any payment on or
with respect to, or purchase, redeem, defease or otherwise acquire or retire
for value any Indebtedness of the Company that is contractually subordinated to
the Notes or to the Subsidiary Guarantees (other than any subordinated
Indebtedness held by the Company or any Restricted Subsidiary), except a
payment of interest or principal at Stated Maturity; or


 


(iv)                              make
any Restricted Investment


 


(all these payments and
other actions set forth in clauses (i) through (iv) above being collectively
referred to as “Restricted Payments”),  unless:


 


(a)                                  at
the time of and after giving effect to the Restricted Payment, no Default or
Event of Default shall have occurred and is continuing or would occur as a
consequence of the Restricted Payment; and


 


(b)                                 the
Company would, at the time of the Restricted Payment and after giving it pro forma
effect as if the Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09; and


 


(c)                                  the
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the date of
this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii),
(iv), (vii), (viii), (xi), (xii), (xiii), (xv) and (xvi) of the next succeeding
paragraph), is less than the sum, without duplication, of


 


(i)             50% of the
Consolidated Net Income of the Company for the period (taken as one accounting
period) from October 1, 2003 to the end of the Company’s most recently
ended fiscal quarter for which internal financial statements are available at
the time of the Restricted Payment (or, if Consolidated Net Income for the
period is a deficit, less 100% of the deficit); provided, however,  that
if, after giving effect to the proposed Restricted Payment (and the financing thereof),
the Consolidated Leverage Ratio would be less than 3.0 to 1.0, then for
purposes of calculating the availability of amounts hereunder for such
Restricted Payment only, the reference to 50% in this clause (c)(i) shall be
deemed to be 75%, plus


 


(ii)          100% of the aggregate
fair market value of Qualified Proceeds received by the Company since the date
of this Indenture as a contribution to its equity capital or from the issue or
sale of Equity Interests of the Company (other than Disqualified Stock) or from
the issue or sale of Disqualified Stock or debt securities of the Company that
have been converted into Equity Interests (other than Equity Interests (or
Disqualified Stock or convertible debt securities) sold to a Subsidiary of the
Company), plus


 


48

















 


(iii)       to the extent that any
Restricted Investment that was made after the date of this Indenture is sold
for cash or otherwise liquidated or repaid for cash, the cash return of capital
received with respect to the Restricted Investment (less the cost of
disposition, if any), plus


 


(iv)      50% of any dividends
received by the Company or a Wholly Owned Restricted Subsidiary after the date
of this Indenture from an Unrestricted Subsidiary of the Company, to the extent
that the dividends were not otherwise included in Consolidated Net Income of
the Company for the period, plus


 


(v)         to the extent that any
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, or upon a
merger or consolidation of any Unrestricted Subsidiary into the Company or any
of its Restricted Subsidiaries, in each case after the date of this Indenture,
the lesser of (A) the fair market value of the Company’s Investment in the
Subsidiary as of the date of the redesignation or merger or consolidation and
(B) the fair market value as of the date on which the Subsidiary was originally
designated as an Unrestricted Subsidiary.


 


The
foregoing provisions will not prohibit:


 


(i)                                     the
payment of any dividend or other distribution within 60 days after the date of
declaration, if at said date of declaration payment would have complied with
the provisions of this Indenture;


 


(ii)                                  the
making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the sale within 30 days of the making of such Restricted Payment
(other than to a Subsidiary of the Company) of, other Equity Interests of the
Company (other than any Disqualified Stock) or the net cash proceeds of a
common equity capital contribution to the Company; provided that the amount of
any net cash proceeds that are utilized for any Restricted Payment pursuant to
this clause (ii) shall be excluded from clause (c)(ii) of the preceding
paragraph;


 


(iii)                               the defeasance,
redemption, repurchase or other acquisition of subordinated Indebtedness with
the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;


 


(iv)                              the
payment of any dividend or making of any distribution by a Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;


 


(v)                                 so
long as no Default or Event of Default shall have occurred and is continuing or
would occur as a result of the making of such Restricted Payment, the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any direct or indirect parent of the Company
held by any present, future or former member of the Company’s or any direct or
indirect parent of the Company’s (or any of their Subsidiaries’) Board of
Directors or any present, future or former officer, employee or director of the
Company, any of its Restricted Subsidiaries or any direct or indirect parent of
the Company pursuant to any equity subscription agreement, stockholder
agreement, stock option agreement, employment agreement or other similar agreements
or employee benefit plan; provided that


 


(A)                            the
aggregate price paid for all the repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $3.0 million in any calendar year (with
unused amounts in any calendar year being carried over to succeeding calendar
years subject to a maximum (without giving effect to clause (B)) of $6.0
million), plus


 


(B)                              in
the case of a repurchase, redemption or other acquisition or retirement of
Equity Interests of the Company or of any direct or indirect parent of the
Company, the aggregate cash proceeds received by the Company, or its direct or
indirect parent to the extent such cash proceeds are contributed to the common
equity capital of the Company, during that calendar year from any reissuance of
Equity Interests by the Company or any direct or indirect parent of the Company
to employees, officers and directors of the Company and its Restricted
Subsidiaries plus the cash proceeds of any “key man” life insurance policy
received by the Company, and any cash proceeds paid to the 


 


49

















 


Company in
connection with the issuance or exercise of, any management or employee Equity
Interests so acquired;


 


(vi)                              so
long as no Default or Event of Default has occurred and is continuing or would
occur as a result of the making of such Restricted Payment, the declaration and
payment of regularly scheduled dividends to holders of any class or series of
Disqualified Stock of the Company, or any class or series of Disqualified Stock
or preferred stock of any Restricted Subsidiary that was issued after the date
of this Indenture (other than to the Company or another Wholly Owned Restricted
Subsidiary of the Company) in compliance with Section 4.09;


 


(vii)                           repurchase of Equity
Interests deemed to occur upon exercise of stock options and warrants if those
Equity Interests represent a portion of the exercise price of the options or
warrants;


 


(viii)                        loans to employees of the
Company or any Restricted Subsidiary in the ordinary course of business not to
exceed $2.0 million at any one time outstanding;


 


(ix)                                so
long as no Default or Event of Default shall have occurred and is continuing or
would occur as a result of the making of such Restricted Payment, Restricted
Payments not to exceed $10.0 million since the date of this Indenture;


 


(x)                                   [intentionally
omitted]


 


(xi)                                any
payments made by the Company or a Restricted Subsidiary in connection with the
Transactions and described in this Offering Memorandum under the caption “Use of
Proceeds” (including any post-closing purchase price adjustments);


 


(xii)                             payments, advances, loans
or expense reimbursements made to any direct or indirect parent corporation of
the Company to permit the payment by such entity of reasonable general operating
expenses, accounting, legal, corporate reporting and administrative expenses
incurred in the ordinary course of its business in an amount not to exceed $1.0
million per annum (or $2.0 million per annum after the consummation of an
Initial Pubic Offering by the Company or any direct or indirect parent of the
Company);


 


(xiii)                          (a) for so long as the
Company is a member of a group filing a consolidated or combined tax return
with a parent corporation, payments to the parent in respect of an allocable
portion of the tax liabilities of such group that is attributable to the
Company and its Subsidiaries (“Tax Payments”); provided,  that
the Tax Payments shall not exceed the lesser of (A) the amount of the relevant
tax (including any penalties and interest) that the Company would owe if the
Company were filing (and had always filed) a separate tax return (or a separate
consolidated or combined return with its Subsidiaries that are members of the
consolidated or combined group), taking into account any carryovers and
carrybacks of tax attributes (such as net operating losses) of the Company and
such Subsidiaries from other taxable years and (B) the proportionate share of
the Company and its Subsidiaries of the net amount of the relevant tax that the
parent actually owes to the appropriate taxing authority or (b) in the event
that and for so long as the Company is organized as a limited liability company
or partnership, the payment of Permitted Tax Distributions;


 


(xiv)                         the repurchase, redemption or
other acquisition or retirement for value of Indebtedness that is subordinated
to the Notes with Excess Proceeds to the extent such Excess Proceeds are
permitted to be used for general corporate purposes under Section 4.12;


 


(xv)                            the
repurchase, redemption or other acquisition for value of Capital Stock of the
Company or any direct or indirect parent of the Company representing fractional
shares of such Capital Stock in connection with a merger, consolidation,
amalgamation or other combination involving the Company or any direct or
indirect parent of the Company;


 


(xvi)                         Investments that are made with
Excluded Contributions;


 


50

















 


(xvii)                      so long as no Default or Event of
Default shall have occurred and is continuing or would occur as the result of
making such Restricted Payment, upon the occurrence of a Change of Control and
within 60 days after completion of the offer to repurchase Notes pursuant to
Section 4.18 (including the purchase of all Notes tendered), any purchase
or redemption of Indebtedness of the Company subordinated to the Notes that is
required to be repurchased or redeemed pursuant to the terms thereof as a
result of such Change of Control, at a purchase price not greater than 101% of
the outstanding principal amount (or accreted amount, in the case of any debt
issued at a discount from its principal amount at maturity) thereof, plus
accrued and unpaid interest, if any; and


 


(xviii)                   so long as no Default or Event of
Default has occurred and is continuing or would occur as the result of the
making of such Restricted Payment, the declaration and payment of dividends to
holders of any class or series of preferred stock of the Company if the Company
would have been entitled to incur or assume Indebtedness under Section 4.09,
in an aggregate principal amount equal to the aggregate liquidation value of
the preferred stock at the time of issuance of such preferred stock (provided
that the cash proceeds from the issuance of such preferred stock shall be
excluded from clause (c)(ii) of the preceding paragraph).


 


The Board of Directors may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default.  For purposes of making this
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of the
designation and will reduce the amount available for Restricted Payments under the
first paragraph of this Section 4.10. 
All outstanding Investments will be deemed to constitute Investments in
an amount equal to the fair market value of the Investments at the time of the
designation.  Such designation will only
be permitted if a Restricted Payment in that amount would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.


 


For purposes of determining compliance with this
Section 4.10, in the event that a Restricted Payment meets the criteria of
more than one of the exceptions described in (i) through (xviii) above or is
entitled to be made pursuant to the first paragraph of this Section 4.10,
the Company shall, in its sole discretion, classify the Restricted Payment in
any manner that complies with this Section 4.10.  The amount of all Restricted Payments (other than cash) shall be
the fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or the
Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.  The fair market value of any
non-cash Restricted Payment or return of capital on any Restricted Subsidiary
shall be determined by the Board of Directors whose resolution regarding the
fair market value shall be delivered to the Trustee, the determination to be
based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the fair market value exceeds
$10.0 million.  Not later than the 30
days after the date of making any Restricted Payment, the Company shall deliver
to the Trustee an Officers’ Certificate stating that the Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
Section 4.10  were computed, together with a copy of any fairness opinion
or appraisal required by this Indenture.


 


SECTION 4.11.                                     LIENS.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien securing Indebtedness or trade payables on any asset
now owned or hereafter acquired, including any income or profits therefrom,
except (i) Permitted Liens, and (ii) in the case of Liens securing Indebtedness
that is expressly subordinate or junior in right of payment to the Notes, the
Notes are secured by a Lien on property, assets or proceeds that is senior in
priority to the Liens (with the same relative priority as the subordinate or
junior Indebtedness shall have with respect to the Notes and the Subsidiary
Guarantees) and (y) in all other cases, the Notes are secured by the Lien on an
equal and ratable basis.


 


SECTION 4.12.                                     ASSET SALES.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:


 


51

















 


(i)                                     the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed
of;


 


(ii)                                  in
the event of an Asset Sale involving assets or consideration in excess of $5.0
million, such fair market value is determined by the Company’s Chief Financial
Officer (or by its Board of Directors, as evidenced by a resolution of the
Board of Directors, if such fair market value exceeds $10.0 million) and
evidenced by an Officers’ Certificate delivered to the Trustee; and


 


(iii)                               at least 75% of the
consideration therefor received by the Company or the Restricted Subsidiary is
in the form of Qualified Proceeds.


 


For the purposes of this provision, each of the
following shall be deemed cash:


 


(a)                                  any
liabilities (as shown on the Company’s or the Restricted Subsidiary’s most
recent balance sheet), of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any Guarantee of the Notes) that are assumed by the transferee of
any assets pursuant to a customary novation agreement or by operation of law
that releases the Company or the Restricted Subsidiary from further liability;


 


(b)                                 any
securities, notes or other obligations received by the Company or the
Restricted Subsidiary from a transferee that are converted by the Company or
the Restricted Subsidiary into cash (to the extent of the cash received) within
180 days following the closing of the Asset Sale; and


 


(c)                                  any
Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate fair market
value (determined as provided in clause (ii) of the first paragraph above),
taken together with all other Designated Noncash Consideration received
pursuant to this clause (c) then outstanding, not to exceed the greater of (x)
$10 million and (y) 5% of Total Tangible Assets at the time of receipt of such
Designated Noncash Consideration with the fair market value of each item of
Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value.


 


Within 360 days after the receipt of any Net Proceeds
from an Asset Sale, the Company or any Restricted Subsidiary may apply the Net
Proceeds, at its option,


 


(a)                                  to
prepay, repay or purchase Senior Debt,


 


(b)                                 to
the acquisition of a majority of the assets of, or a majority of the Voting
Stock of, another Permitted Business, to making a capital expenditure for the
construction, repair, improvement or acquisition of assets that are used or
useful in a Permitted Business or (commitment to do any of the foregoing
provided that this commitment or its reasonable replacement is consummated
substantially in accordance with the terms) or


 


(c)                                  for
a combination of uses described in clauses (a) and (b).


 


Pending the final application of any Net Proceeds, the
Company and its Restricted Subsidiaries may temporarily reduce revolving credit
borrowings or otherwise invest the Net Proceeds in any manner that is not
prohibited by this Indenture.  Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
immediately preceding paragraph will be deemed to constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds
exceeds $10.0 million, the Company will be required to make an offer to all
Holders of Notes (an “Asset Sale Offer”) to purchase
the maximum principal amount of Notes and, if the Company is required to do so
under the terms of any other Indebtedness that is pari passu with the Notes,
such other Indebtedness on a pro rata basis with the Notes, that may be
purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount of the Notes plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of repurchase, in
accordance with the procedures set forth in this Indenture.  To the extent that any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use the
Excess Proceeds for 


 


52

















 


any general corporate purpose.  If the aggregate principal amount of Notes
and other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis.  Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.


 


SECTION 4.13.                                     DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to


 


(i)                                     (a)
pay dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries,


 


(ii)                                  make
loans or advances to the Company or any of its Restricted Subsidiaries, or


 


(iii)                               transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries.


 


However, the foregoing restrictions will not apply to
encumbrances or restrictions existing under or by reason of:


 


(a)                                  Existing
Indebtedness as in effect on the date of this Indenture,


 


(b)                                 the
New Credit Facility, the Equipment Financing Facility and Permitted Bonding
Obligations as in effect as of the date of this Indenture, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings, provided that any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are not materially more restrictive, taken as a
whole, with respect to dividend and other payment restrictions than those
contained in the New Credit Facility, the Equipment Financing Facility or in
agreements with respect to Permitted Bonding Obligations, as applicable, as in
effect on the date of this Indenture,


 


(c)                                  this
Indenture, the Notes (including the Exchange Notes) and the Subsidiary
Guarantees (including the Subsidiary Guarantees of the Exchange Notes),


 


(d)                                 applicable
law, rule, regulation or order,


 


(e)                                  any
instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of
acquisition (except to the extent the Indebtedness was incurred in connection
with or in contemplation of the acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired, provided that,
in the case of Indebtedness, the Indebtedness was permitted by the terms of
this Indenture to be incurred,


 


(f)                                    customary
non-assignment provisions in leases, licenses, charters or other similar
agreements entered into in the ordinary course of business;


 


(g)                                 purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired,


 


(h)                                 any
agreement for the sale of a Restricted Subsidiary that restricts distributions
by that Restricted Subsidiary pending its sale,


 


53

















 


(i)                                     Permitted
Refinancing Indebtedness, provided that the restrictions contained
in the agreements governing Permitted Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced,


 


(j)                                     secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
Section 4.09 and Section 4.11 that limits the right of the debtor to
dispose of the assets (including any insurance, leases and charters relating to
such assets, and any proceeds thereof) securing the Indebtedness,


 


(k)                                  provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary
course of business,


 


(1)                                  restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business,


 


(m)                               mortgage,
construction, purchase money or similar financings that impose restrictions on
the transfer of the property acquired, constructed repaired or improved,


 


(n)                                 encumbrances
or restrictions imposed by amendments to the contracts, agreements or
obligations referred to in the foregoing clauses (a), (c), (e), (f), (g), (h),
(j), (k) and (m), provided that the amendments are not materially more
restrictive than the agreement so amended,


 


(o)                                 any
other agreement, instrument or document relating to Senior Debt hereafter in
effect, provided,  that
the terms and conditions of such encumbrances or restrictions are not
materially more restrictive taken as a whole than those encumbrances or
restrictions imposed in connection with the New Credit Facility as in effect on
the date of this Indenture (which may result in encumbrances or restrictions
upon a Restricted Subsidiary so long as such encumbrances or restrictions are
not materially more restrictive taken as a whole than the comparable
restriction that is applicable to the Company), or


 


(p)                                 encumbrances
or restrictions contained in any Indebtedness incurred by a Foreign Restricted
Subsidiary that apply only to such Foreign Restricted Subsidiary.


 


SECTION 4.14.                                     TRANSACTIONS WITH AFFILIATES.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an “Affiliate Transaction”),  unless


 


(i)                                     the
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Company or Restricted Subsidiary with an
unrelated Person and


 


(ii)                                  the
Company delivers to the Trustee


 


(a)                                   with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $2.0 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that the Affiliate Transaction complies with clause (i)
above and that the Affiliate Transaction has been approved by a majority of the
members of the Board of Directors of the Company (and, if there are
disinterested directors, a majority thereof) and


 


(b)                                  with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of the
Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.


 


54

















 


Notwithstanding the foregoing, the following items
shall not be deemed to be Affiliate Transactions:


 


(i)                                     any
employment agreement, compensation, employee benefit arrangements and incentive
arrangements or indemnification agreement or arrangement with any officer,
director, member or employee entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business of the Company or
the Restricted Subsidiary;


 


(ii)                                  transactions
between or among the Company and/or its Restricted Subsidiaries;


 


(iii)                               payment of reasonable
directors fees and customary indemnification agreements with directors and
officers of the Company and its Restricted Subsidiaries or any direct or
indirect parent of the Company;


 


(iv)                              Restricted
Payments that are permitted by Section 4.10;


 


(v)                                 loans
and advances to officers, directors and employees of the Company or any
Restricted Subsidiary for travel, entertainment, moving and other relocation
expenses, in each case made in the ordinary course of business,


 


(vi)                              transactions
pursuant to the Merger Agreement, including the payment of all fees and
expenses described in the Offering Memorandum under “Certain Relationships and
Related Transactions,” in each case, as in effect on the date of this
Indenture;


 


(vii)                           transactions with a Person
(other than an Unrestricted Subsidiary of the Company) that is an Affiliate of
the Company solely because the Company owns, directly or through a Restricted
Subsidiary, an Equity Interest in, or controls, such Person;


 


(viii)                        the issuance of Equity
Interests (other than Disqualified Stock) of the Company to any direct or
indirect parent of the Company or any Principal;


 


(ix)                                transactions
with customers, clients, suppliers or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture that are on terms no less favorable
than those that would have been obtained in a comparable transaction with an
unrelated party or on terms that are approved by the Board of Directors of the
Company, including a majority of the disinterested directors, if any;


 


(x)                                   transactions
pursuant to any contract or agreement described in the Offering Memorandum
under the caption “Certain Relationships and Related Transactions,” as in
effect on the date of this Indenture, in each case as amended, modified or
replaced from time to time so long as the amended, modified or new agreements,
taken as a whole, are no less favorable to the Company and its Restricted
Subsidiaries than those in effect on the date of this Indenture;


 


(xi)                                so
long as no Default or Event of Default that has occurred and is continuing, the
payment of customary annual fees and related expenses to Madison Dearborn
Partners and its Affiliates; provided that such fees shall not, in the
aggregate, exceed $1.0 million (plus out-of-pocket expenses) in any
twelve-month period commencing after the date of this Indenture;


 


(xii)                             so long as no Default or
Event of Default has occurred and is continuing, the payment of customary
transaction, management, consulting and advisory fees and related expenses to
Madison Dearborn Partners and its Affiliates made pursuant to financial
advisory, financing, underwriting or replacement agreements or in respect of
other investment banking entities, including, without limitation, in connection
with acquisitions or divestitures, in each case, which payments are (a)
reasonably related to the services performed and (b) approved by a majority of
the members of the Board of Directors not affiliated with Madison Dearborn
Partners; and


 


55

















 


(xiii)                          any payments or other
transactions pursuant to any tax-sharing agreement between the Company and any
other Person with which the Company files a consolidated tax return or with
which the Company is part of a consolidated group for tax purposes.


 


Section 4.15.                                                 NO SENIOR SUBORDINATED DEBT.


 


The Company will not incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is subordinate
or junior in right of payment to any Indebtedness and senior in any respect in
right of payment to the Notes.  No
Subsidiary Guarantor will incur, create, issue, assume, guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Indebtedness of the Subsidiary Guarantor and senior in any
respect in right of payment to the Subsidiary Guarantee of the Subsidiary
Guarantor.  This does not apply to
distinctions between categories of Indebtedness that exist by reasons of any
Liens or Guarantees securing or in favor of some but not all of such Indebtedness
or securing such Indebtedness with greater or lesser priority or with different
collateral.


 


SECTION 4.16.                                     LIMITATION ON ISSUANCE OF GUARANTEES OF
INDEBTEDNESS.


 


Each Restricted Subsidiary may Guarantee the
Obligations under the New Credit Facility and any other Indebtedness of the
Company or a Subsidiary Guarantor, provided that, if the Restricted
Subsidiary is not a Subsidiary Guarantor, the Restricted Subsidiary will be
obligated to execute and deliver a supplemental indenture to this Indenture
providing for the Subsidiary Guarantee of the payment of the Notes by the
Restricted Subsidiary, which Subsidiary Guarantee shall be senior to or pari passu with
the Subsidiary’s Guarantee of the other Indebtedness, unless the other
Indebtedness is Senior Debt, in which case the Subsidiary Guarantee of the
Notes may be subordinated to the Guarantee of the Senior Debt to the same
extent as the Notes are subordinated to the Senior Debt.  Any such Subsidiary Guarantee shall provide
by its terms that it shall be automatically and unconditionally released and
discharged as described in Article 10.


 


SECTION 4.17.                                     DESIGNATION OF RESTRICTED AND UNRESTRICTED
SUBSIDIARIES.


 


The Company’s Board of Directors
may designate any of its Subsidiaries, including any newly formed Subsidiary or
any Person that will become a Subsidiary by way of acquisition, to be an
Unrestricted Subsidiary if that designation would not cause a Default. If any
of the Company’s Restricted Subsidiaries is designated as an Unrestricted
Subsidiary, the aggregate fair market value of all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the newly designated
Unrestricted Subsidiary shall be deemed to be an Investment made as of the time
of that designation and shall either reduce the amount available for Restricted
Payments under Section 4.10(iv)(c) or reduce the amount available for
future Investments under one or more clauses of the definition of “Permitted
Investments,” as the Company determines in its sole discretion. The designation
of such a Subsidiary or Person as an “Unrestricted Subsidiary” will be
permitted only if, in the case of a Restricted Subsidiary, the deemed
Investment would be permitted at the time the Restricted Subsidiary is
designated as an Unrestricted Subsidiary and, in any case, if that Subsidiary
or Person otherwise satisfies the requirements set forth in the definition of
“Unrestricted Subsidiary.”


 


Any designation by the Board of Directors of an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to the
designation and an Officers’ Certificate certifying that the designation
complied with the foregoing conditions and was permitted by Section 4.10.
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
the Company as of such date (and, if such Indebtedness is not permitted to be
incurred under Section 4.09, the Company shall be in default of
Section 4.09).  The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and the
designation shall only be permitted if (i) such Indebtedness is permitted under
Section 4.09, calculated on a pro forma basis as if the designation had
occurred at the beginning of the four-quarter reference period, and (ii) no
Default or Event of Default would be in existence following the designation.


 


56

















 


SECTION 4.18.                                     REPURCHASE AT THE OPTION OF HOLDERS UPON A
CHANGE OF CONTROL.


 


(a)                                  Upon
the occurrence of a Change of Control, the Company shall, within 30 days of a
Change of Control, make an offer (the “Change of Control Offer”) pursuant to the procedures set
forth in Section 3.09.  Each Holder
shall have the right to accept such offer and require the Company to repurchase
all or any portion (equal to $1,000 or an integral multiple of $1,000) of such
Holder’s Notes pursuant to the Change of Control Offer at a purchase price, in
cash (the “Change of Control
Payment”), equal to 101% of the aggregate principal amount of
Notes repurchased, plus accrued and unpaid interest and Liquidated Damages, if
any, on the Notes repurchased, to the Purchase Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date).


 


(b)                                 Prior
to complying with any of the provisions of this Section 4.18, but in any
event within 90 days following a Change of Control, the Company will either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of Notes required by this Section 4.18.


 


(c)                                  The
Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in
this Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under the Change of
Control Offer or (2) notice of redemption has been given pursuant to this
Indenture as described in Section 3.07, unless and until there has been a
default in payment of the applicable redemption price.  A Change of Control Offer may be made in
advance of a Change of Control or conditional upon a Change of Control if a
definitive agreement is in place for the Change of Control at the time of
making of the Change of Control Offer.


 


SECTION 4.19.                                     ADDITIONAL SUBSIDIARY GUARANTEES.


 


If the Company or any of its Restricted Subsidiaries
shall acquire or create another Domestic Subsidiary after the date of this
Indenture that at any time is or becomes a Material Subsidiary, then, unless
that Subsidiary is properly designated as an Unrestricted Subsidiary, the newly
acquired or created Subsidiary shall become a Subsidiary Guarantor and execute
a supplemental indenture and deliver an Opinion of Counsel, in accordance with
the terms of this Indenture within 20 business days of the first date after
which it was acquired or created and constitutes a Material Subsidiary.


 


SECTION 4.20.                                     BUSINESS ACTIVITIES.


 


The Company will not, and will not permit any
Restricted Subsidiary to, engage in any business other than Permitted
Businesses, except to the extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole.


 


ARTICLE 5.


 


SUCCESSORS


 


SECTION 5.01.                                     MERGER, CONSOLIDATION AND SALE OF ASSETS


 


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


 


(i)                                     the
Company is the surviving corporation or the entity or the Person formed by or
surviving the consolidation or merger (if other than the Company) or to which
the sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporation, limited liability company or partnership
organized or existing under the laws of the United States, any individual state
or the District of Columbia; provided, 


 


57

















 


however,  that
if such Person is a limited liability company or partnership, a corporate
Wholly-Owned Restricted Subsidiary of such Person becomes a co-issuer of the
Notes in connection therewith;


 


(ii)                                  the
entity or Person formed by or surviving any consolidation or merger (if other
than the Company) or the entity or Person to which the sale, assignment,
transfer, lease, conveyance or other disposition shall have been made assumes
all the then existing obligations of the Company under the Registration Rights
Agreement (as defined), the Notes and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee;


 


(iii)                               immediately after the
transaction no Default or Event of Default exists; and


 


(iv)                              except
in the case of a merger or consolidation of the Company with or into a Wholly
Owned Subsidiary of the Company, the Company or the Person formed by or
surviving the consolidation or merger (if other than the Company), or to which
the sale, assignment, transfer, lease, conveyance or other disposition shall
have been made will, at the time of the transaction and after giving pro forma
effect to it as if the transaction had occurred at the beginning of the
applicable four-quarter period, (a) be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 or (b) have a Fixed Charge
Coverage Ratio that is better than the Fixed Charge Coverage Ratio of the
Company without giving effect to the transaction.


 


The Company will not, directly or indirectly, lease
all or substantially all of its properties or assets to any Person.  This Section 5.01 will not apply to (i)
the Merger in connection with the Transactions or (ii) any sale, assignment,
transfer, conveyance or other disposition of assets (including by way of merger
or consolidation) between or among the Company and any of its Wholly-Owned
Restricted Subsidiaries that are Subsidiary Guarantors.


 


Upon any consolidation or merger, or any sale,
assignment, transfer, conveyance or other disposition by the Company (other
than by lease) of all or substantially all of the properties and assets of the
Company, in accordance with this Section 5.01, the successor Person formed
by such consolidation or into which the Company is merged or to which such
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture and the Notes.  In the event of any such transfer (other
than a transfer of less than all of the properties and assets of the Company),
the predecessor Company shall be released and discharged from all liabilities
and obligations in respect of the Notes and this Indenture, and the predecessor
Company may be dissolved, wound up or liquidated at any time thereafter.


 


SECTION 5.02.                                     SUCCESSOR CORPORATION SUBSTITUTED.


 


The Surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of the Company or a
Subsidiary Guarantor, as applicable, under this Indenture; provided, however,
that the predecessor entity shall not be released from any of the obligations
or covenants under this Indenture, including with respect to the payment of the
Notes and obligations under the Subsidiary Guarantee, as the case may be, in
the case of:


 


(a)                                  a
sale, transfer, assignment, conveyance or other disposition (unless such sale,
transfer, assignment, conveyance or other disposition is of all or
substantially all of the assets of the Company, taken as a whole or, in the
case of a Subsidiary Guarantor, such sale, transfer, assignment, conveyance or
other disposition is of all or substantially all of the assets of such
Subsidiary Guarantor to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary of the Company, or such portion of the
Capital Stock of such Subsidiary Guarantor ceases to be a Subsidiary of the
Company), or


 


(b)                                 a
lease.


 


58

















 


ARTICLE 6.


 


DEFAULTS AND
REMEDIES


 


SECTION 6.01.                                     EVENTS OF DEFAULT.


 


Each of the
following constitutes an “Event of Default” with respect
to the Notes:


 


(i)                                     default
for 30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes (whether or not permitted by Article 12 hereof);


 


(ii)                                  default
in payment when due of the principal of or premium, if any, on the Notes
(whether or not permitted by Article 12 hereof);


 


(iii)                               failure
by the Company or any of its Restricted Subsidiaries to comply with
Section 4.18;


 


(iv)                              failure
by the Company or any of its Restricted Subsidiaries for 60 days after notice
by the Trustee or by the Holders of at least 25% in principal amount of Notes
then outstanding to comply with any of its other agreements in this Indenture
or the Notes;


 


(v)                                 default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is Guaranteed by the Company or any of its Restricted Subsidiaries) whether the
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture, which default:


 


(A)                              is
caused by a failure to pay principal on such Indebtedness at final stated
maturity prior to the expiration of the grace period provided in the
Indebtedness on the date of the default (a “Payment Default”) or


 


(B)                                results
in the acceleration of the Indebtedness prior to its stated maturity


 


and, in each case, the principal amount of any
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated (after giving effect to any applicable grace period), aggregates
$10.0 million or more;


 


(vi)                              failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $10.0 million (net of any amount with respect to which
a reputable insurance company with assets over $100.0 million has acknowledged
liability in writing), which judgments are not paid, discharged or stayed for a
period of 60 days after their entry;


 


(vii)                           the
Company or any of its Significant Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:


 


(A)                              commences
a voluntary case or gives notice of intention to make a proposal under any
Bankruptcy Law;


 


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


 


(C)                                consents
to the appointment of a receiver, interim receiver, receiver and manager,
liquidator, trustee or custodian of it or for all or substantially all of its property;


 


59

















 


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


 


(E)                                 admits
in writing its inability to pay its debts as they become due or otherwise
admits its insolvency;


 


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


 


(A)                              is
for relief against the Company or any of its Significant Subsidiaries in an
involuntary case; or


 


(B)                                appoints
a receiver, interim receiver, receiver and manager, liquidator, trustee or
custodian of the Company or any of its Significant Subsidiaries or for all or
substantially all of the property of the Company or any of its Significant
Subsidiaries; or


 


(C)                                orders
the liquidation of the Company or any of its Significant Subsidiaries;


 


and such order or decree remains unstayed and in
effect for 60 consecutive days; and


 


(ix)                                except as permitted by
this Indenture, any Subsidiary Guarantee of any Significant Subsidiary (or
group of Subsidiary Guarantors that, collectively, would be a Significant
Subsidiary) shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Subsidiary Guarantor that is a Significant Subsidiary (or group of Subsidiary Guarantors
that, collectively, would be a Significant Subsidiary), or any Person acting on
behalf of any Subsidiary Guarantor (or group of Subsidiary Guarantors) that is
a Significant Subsidiary, shall deny or disaffirm its obligations under its
Subsidiary Guarantee.


 


SECTION 6.02.                                     ACCELERATION.


 


If
any Event of Default (other than those of the type described in
Section 6.01(vii) or (viii) occurs and is continuing, the Trustee may, and
the Trustee upon the request of Holders of 25% in principal amount of the
outstanding Notes shall, or the Holders of at least 25% in principal amount of
outstanding Notes may, declare the principal of all the Notes, together with
all accrued and unpaid interest, premium, if any, to be due and payable by
notice in writing to the Company and the Trustee specifying the respective
Event of Default and that such notice is a notice of acceleration (the “Acceleration Notice”),
and the same shall become immediately due and payable.


 


In the case of an Event of Default specified in Section (vii)
or (viii) of Section 6.01 hereof, all outstanding Notes shall become due
and payable immediately without any further declaration or other act on the
part of the Trustee or the Holders. 
Holders may not enforce this Indenture or the Notes except as provided
in this Indenture.


 


Upon a declaration of acceleration, such principal and
interest will become due and payable upon the earlier to occur of (x) the 5th
day after notice thereof has been given to holders of Designated Senior Debt
and (y) the date on which all of the Designated Senior Debt has been
accelerated.  In the event of a
declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing as a result of the acceleration of any Indebtedness
described in Section 6.01(v) (excluding any resulting payment default
under this Indenture or the Notes), the declaration of acceleration of the
Notes shall be automatically annulled if the holders of all Indebtedness
described in Section 6.01(v) have rescinded the declaration of
acceleration in respect of such Indebtedness within 20 days of the date of such
declaration, and if the annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a court of competent jurisdiction, and
all existing Events of Default, except non-payment of principal or interest on
the Notes that became due solely because of the acceleration of the Notes, have
been cured or waived.


 


60

















 


The Holders of a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee may waive
all past Defaults and rescind and annul a declaration of acceleration and its
consequences if:


 


(1)                                  all
existing Events of Default, other than the nonpayment of the principal of,
premium, or Liquidated Damages if any, and interest on, the Notes that have
become due solely by the declaration of acceleration, have been cured or
waived, and


 


(2)                                  the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.


 


SECTION 6.03.                                     OTHER REMEDIES.


 


If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.


 


The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default.  All remedies shall be
cumulative to the extent permitted by law.


 


SECTION 6.04.                                     WAIVER OF DEFAULTS.


 


(a)                                  The Holders of at least a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes, waive any existing Default or Event
of Default, and its consequences, except a continuing Default or Event of
Default (i) in the payment of the principal of, premium, if any, or interest,
on the Notes and (ii) in respect of a covenant or provision which under this
Indenture cannot be modified or amended without the consent of the Holder of
each Note affected by such modification or amendment.  Upon any waiver of a Default or Event of Default, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed cured for every purpose of this Indenture but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.


 


SECTION 6.05.                                     CONTROL BY MAJORITY.


 


Subject to Section 7.01, Section 7.02(f)
(including the Trustee’s receipt of the security or indemnification described
therein) and Section 7.07 hereof, in case an Event of Default shall occur
and be continuing, the Holders of a majority in aggregate principal amount of
the Notes then outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Notes.


 


SECTION 6.06.                                     LIMITATION ON SUITS.


 


A Holder may not institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Notes, or for the appointment
of a receiver or trustee, or for any other remedy under this Indenture or the
Notes, unless:


 


(1)                                  the
Holder has previously given to the Trustee written notice of a continuing Event
of Default;


 


(2)                                  Holders
of at least 25% in aggregate principal amount of outstanding Notes have made
written request to the Trustee to institute proceedings in respect of the Event
of Default in its own name as Trustee under this Indenture;


 


61

















 


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


 


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


 


(5)                                  during
such 60-day period, the Holders of a majority in aggregate principal amount of
the outstanding Notes have not given the Trustee a direction that is
inconsistent with such written request.


 


The preceding limitations shall not apply to a suit
instituted by a Holder for enforcement of payment of principal of, and premium,
if any, or interest on, a Note on or after the respective due dates for such
payments set forth in such Note.


 


A Holder may not use this Indenture to affect, disturb
or prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.


 


SECTION 6.07.                                     RIGHTS OF HOLDERS TO RECEIVE PAYMENT.


 


Notwithstanding any other provision of this Indenture
(including Section 6.06), the right of any Holder to receive payment of
principal, premium, if any, and interest on the Notes held by such Holder, on
or after the respective due dates expressed in the Notes (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


 


SECTION 6.08.                                     COLLECTION SUIT BY TRUSTEE.


 


If an Event of Default specified in Section 6.01
(i) or (ii) occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal of, premium, if any, and interest then due
and owing (together with interest on overdue principal and, to the extent
lawful, interest) and 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.


 


SECTION 6.09.                                     TRUSTEE MAY FILE PROOFS OF CLAIM.


 


The Trustee shall be authorized to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof. 
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, moneys, securities and any other properties that the Holders may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to 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 Notes
or the rights of any Holder, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.


 


62

















 


SECTION 6.10.                                     PRIORITIES.


 


If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


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


 


Third:  to the Company or to such party as a court
of competent jurisdiction shall direct.


 


The Trustee may fix a record date and payment date for
any payment to Holders pursuant to this Section 6.10.


 


SECTION 6.11.             UNDERTAKING FOR COSTS.


 


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


 


ARTICLE 7.


 


TRUSTEE


 


SECTION 7.01.                                     DUTIES OF TRUSTEE.


 


(a)                                  If
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, as a prudent Person would exercise or
use under the circumstances in the conduct of such Person’s own affairs.


 


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


 


(1)                                  the
duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


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


 


63

















 


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


 


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


 


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


 


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


 


(d)                                 Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section 7.01.


 


(e)                                  No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability.  The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Indenture at the request of any Holders, unless such Holder shall
have offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.


 


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


 


SECTION 7.02.                                     RIGHTS OF TRUSTEE.


 


Subject
to TIA Section 315:


 


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


 


(b)                                 Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel.  The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.


 


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


 


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


 


(e)                                  Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


 


(f)                                    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 unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.


 


64

















 


(g)                                 The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
reasonable discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall reasonably
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company during normal
business hours and upon reasonable notice, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.


 


(h)                                 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 willful misconduct or gross negligence on the
part of any agent or attorney appointed with due care by it under this
Indenture.


 


(i)                                     The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default or Event of
Default is received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee from the Company or the Holders of 25% in aggregate
principal amount of the outstanding Notes, and such notice references the
specific Default or Event of Default, the Notes and this Indenture.


 


(j)                                     The
Trustee shall not be required to give any bond or surety in respect of the
performance of its power and duties hereunder.


 


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


 


SECTION 7.03.                                     INDIVIDUAL RIGHTS OF TRUSTEE.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee.  However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign.  Any Agent may do the same with like rights
and duties.  The Trustee shall also be
subject to Sections 7.10 and 7.11 hereof.


 


SECTION 7.04.                                     TRUSTEE’S DISCLAIMER.


 


The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company’s use
of the proceeds from the Notes or any money paid to the Company or upon the
Company’s direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
or recital herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.


 


SECTION 7.05.                                     NOTICE OF DEFAULTS.


 


If a Default or Event of
Default occurs and is continuing and if it is actually known to the Trustee,
the Trustee shall mail to the Holders a notice of the Default or Event of
Default within 90 days after it occurs. 
Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of the
Holders.


 


65

















 


SECTION 7.06.                                     REPORTS BY TRUSTEE TO HOLDERS.


 


Within 60 days after each
May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail
to the Holders a brief report dated as of such reporting date that complies
with TIA §313(a) (but if no event described in TIA §313(a) has occurred within
the twelve months preceding the reporting date, no report need be
transmitted).  The Trustee also shall comply with TIA §313(b)(2).  The Trustee shall also transmit by mail all
reports as required by TIA §313(c).


 


A copy of each report at
the time of its mailing to the Holders shall be mailed to the Company and filed
with the Commission and each stock exchange on which the Notes are listed in
accordance with TIA §313(d).  The Company shall promptly notify the
Trustee when the Notes are listed on any stock exchange and any delisting
thereof.


 


SECTION 7.07.                                     COMPENSATION AND INDEMNITY.


 


The Company shall pay to
the Trustee from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder as the Company and the Trustee shall from
time to time agree in writing.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


The Company shall
indemnify the Trustee (in its capacity as Trustee) or any predecessor Trustee
(in its capacity as Trustee) against any and all losses, claims, damages,
penalties, fines, liabilities or expenses, including incidental and
out-of-pocket expenses and reasonable attorneys fees (for purposes of this
Article 7, “losses”)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent such
losses are determined to have been caused by its own gross negligence, willful
misconduct or bad faith.  The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations under this Indenture.  The Company shall defend the claim, and the
Trustee shall cooperate in the defense. 
The Trustee may have separate counsel if the Trustee has been reasonably
advised by counsel that there may be one or more legal defenses available to it
that are different from or additional to those available to the Company and in
the reasonable judgment of such counsel it is advisable for the Trustee to
engage separate counsel.  The Company
shall pay the reasonable fees and expenses of such counsel.  The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.  The
Company need not reimburse any expense or indemnify against any loss incurred
by the Trustee that has been determined to have been caused by the Trustee’s
own gross negligence, willful misconduct or bad faith.


 


The obligations of the
Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture, the resignation or removal of the Trustee and
payment in full of the Notes through the expiration of the applicable statute
of limitations.


 


To secure the Company’s
payment obligations in this Section, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal, premium, if any, and interest on particular
Notes.  Such Lien shall survive the
satisfaction and discharge of this Indenture.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in
Section 6.01(vii) or (viii) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any Bankruptcy
Law.


 


The Trustee shall comply
with the provisions of TIA §313(b)(2) to the extent applicable.


 


66

















 


SECTION 7.08.                                     REPLACEMENT OF TRUSTEE.


 


A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.08.


 


The Trustee may resign in
writing at any time upon 30 days’ prior notice to the Company and be discharged
from the trust hereby created by so notifying the Company.  The Holders of a majority in aggregate
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing.  The Company may remove the Trustee if:


 


(a)                                  the
Trustee fails to comply with Section 7.10 hereof;


 


(b)                                 the
Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;


 


(c)                                  a
custodian or public officer takes charge of the Trustee or its property; or


 


(d)                                 the
Trustee becomes incapable of acting.


 


If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.


 


If a successor Trustee
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.


 


If the Trustee, after
written request by any Holder who has been a Holder for at least six months,
fails to comply with Section 7.10 hereof, such Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company.  Thereupon, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of
its succession to Holders.  Subject to the Lien provided for in
Section 7.07 hereof, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided, however,
that all sums owing to the Trustee hereunder shall have been paid.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under
Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.


 


In the case of an
appointment hereunder of a separate or successor Trustee with respect to the
Notes, the Company, the Subsidiary Guarantors, any retiring Trustee and each
successor or separate Trustee with respect to the Notes shall execute and
deliver an Indenture supplemental hereto (1) which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of any retiring Trustee with respect to the
Notes as to which any such retiring Trustee is not retiring shall continue to
be vested in such retiring Trustee and (2) that shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any such other Trustee.


 


67

















 


SECTION 7.09.                                     SUCCESSOR TRUSTEE BY MERGER, ETC.


 


If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation or banking association,
the successor corporation or banking association without any further act shall,
if such successor corporation or banking association is otherwise eligible
hereunder, be the successor Trustee.


 


SECTION 7.10.                                     ELIGIBILITY; DISQUALIFICATION.


 


There shall at all times
be a Trustee hereunder that is a Person organized and doing business under the
laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $50.0 million (or a wholly-owned
subsidiary of a bank or trust company, or of a bank holding company, the principal
subsidiary of which is a bank or trust company having a combined capital and
surplus of at least $50.0 million) as set forth in its most recent published
annual report of condition.


 


This Indenture shall
always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and
(5).  The Trustee is subject to TIA
§310(b).


 


SECTION 7.11.                                     PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.


 


The Trustee is subject to
TIA §311(a), excluding any creditor relationship listed in TIA §311(b).  A Trustee who has resigned or been removed
shall be subject to TIA § 311(a) to the extent indicated therein.


 


ARTICLE 8.



LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


SECTION 8.01.                                     OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.


 


The Company may, at its
option and at any time, elect to have either Section 8.02 or 8.03 hereof
be applied to all outstanding Notes upon compliance with the conditions set
forth in this Article 8.


 


SECTION 8.02.                                     LEGAL DEFEASANCE AND DISCHARGE.


 


Upon the Company’s
exercise under Section 8.01 of the option applicable to this
Section 8.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be deemed to have been discharged
from its obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”) and each
Subsidiary Guarantor shall be released from all of its obligations under its
Subsidiary Guarantee.  For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Debt represented by the outstanding Notes, which shall
thereafter be deemed to be “outstanding” only for the purposes of
Section 8.05 and the other Sections of this Indenture referred to in (a)
and (b) below, and to have satisfied all its other obligations under the Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, or interest on such
Notes when such payments are due, (b) the Company’s obligations with
respect to such Notes under Article 2 and Sections 4.01 and 4.02,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company’s obligations in connection therewith and (d) this
Article 8.  If the Company
exercises under Section 8.01 the option applicable to this
Section 8.02, subject to the satisfaction of the conditions set forth in
Section 8.04, payment of the Notes may not be accelerated because of an
Event of Default.  Subject to compliance
with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03.


 


68

















 


SECTION 8.03.                                     COVENANT DEFEASANCE.


 


Upon the Company’s
exercise under Section 8.01 of the option applicable to this
Section 8.03, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be released from its obligations
under the covenants contained in Sections 4.08 through 4.20 hereof, and the
operation of Section 5.01, with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 are satisfied (hereinafter,
“Covenant
Defeasance”) and each Subsidiary Guarantor shall be
released from all of its obligations under its Subsidiary Guarantee with
respect to such covenants in connection with such outstanding Notes and the
Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes).  For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.  If the Company
exercises under Section 8.01 the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in
Section 8.04, payment of the Notes may not be accelerated because of an
Event of Default specified in clauses (iii), (iv) (with respect to the covenants
contained in Sections 4.08 through 4.17, 4.19 and 4.20 hereof), (v), (vi),
(vii) and (viii) of Section 6.01 (but in the case of (vii) and (viii) of
Section 6.01, with respect to Significant Subsidiaries only) or because of
the Company’s failure to comply with Section 5.01.


 


SECTION 8.04.                                     CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.


 


The following shall be
the conditions to the application of either Section 8.02 or 8.03 to the
outstanding Notes.


 


The Legal Defeasance or
Covenant Defeasance may be exercised only if:


 


(a)                                  the
Company irrevocably deposits with the Trustee, in trust (the “defeasance trust”),
for the benefit of the Holders, cash in U.S. dollars, non-callable U.S.
Government Securities, or a combination of cash in U.S. dollars and
non-callable U.S. Government Securities, in an amount sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to
pay the principal, premium, if any, and interest on the outstanding Notes on
the Stated Maturity or on the next redemption date, as the case may be, and the
Company shall specify whether the Notes are being defeased to maturity or to
such particular redemption date;


 


(b)                                 in
the case of Legal Defeasance, the Company shall deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (i) the
Company has received from the Internal Revenue Service a ruling directed to it
or (ii) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;


 


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


 


(d)                                 no
Event of Default under Section 6.01(vii) or (viii) shall have occurred at
any time in the period ending on the 91st day after the cash and/or
non-callable U.S. Government Securities have been deposited in the defeasance
trust;


 


69

















 


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


 


(f)                                    the
Company shall deliver to the Trustee an Opinion of Counsel, subject to
customary exceptions, to the effect that on the 123rd day following the
deposit, the defeasance trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws generally
affecting creditors’ rights;


 


(g)                                 the
Company shall deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
over other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding such other creditors; and


 


(h)                                 the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.


 


SECTION 8.05.                                     DEPOSITED CASH AND U.S. GOVERNMENT
SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.


 


Subject to
Section 8.06, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to
Section 8.04 in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of all sums due and to become due thereon in respect of principal,
premium, if any, and interest but such cash and securities need not be
segregated from other funds except to the extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable U.S. Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.


 


Anything in this
Article 8 to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any cash
or non-callable U.S. Government Securities held by it as provided in
Section 8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the certification delivered
under Section 8.04(a)), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.


 


SECTION 8.06.                                     REPAYMENT TO COMPANY.


 


The Trustee shall
promptly, and in any event, no later than five (5) Business Days, pay to the
Company after request therefor, any excess money held with respect to the Notes
at such time in excess of amounts required to pay any of the Company’s
Obligations then owing with respect to the Notes.


 


Any cash or non-callable
U.S. Government Securities deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal, premium,
if any, or interest on any Note and remaining unclaimed for one year after such
principal, premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such cash and securities, 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), notice that such cash and securities remains 


 


70

















 


unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.


 


SECTION 8.07.                                     REINSTATEMENT.


 


If the Trustee or Paying
Agent is unable to apply any cash or non-callable U.S. Government Securities in
accordance with Section 8.02 or 8.03, as the case may be, 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 Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 until such time as
the Trustee or Paying Agent is permitted to apply all such cash and securities
in accordance with Section 8.02 or 8.03, as the case may be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders to
receive such payment from the cash and securities held by the Trustee or Paying
Agent.


 


ARTICLE 9.



AMENDMENT, SUPPLEMENT AND WAIVER


 


SECTION 9.01.                                     WITHOUT CONSENT OF HOLDERS OF NOTES.


 


Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder to:


 


(1)                                  to
cure any ambiguity, defect or inconsistency,


 


(2)                                  to
provide for uncertificated notes in addition to or in place of certificated
notes,


 


(3)                                  to
provide for the assumption of the Company’s or a Subsidiary Guarantor’s
obligations to Holders of Notes in the case of a merger or consolidation or
sale of all or substantially all of the Company’s assets,


 


(4)                                  to
provide for the issuance of Additional Notes in accordance with the provisions
set forth in this Indenture on the date of this Indenture,


 


(5)                                  to
make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under this
Indenture of any Holder,


 


(6)                                  to
comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act,


 


(7)                                  to
allow any Subsidiary Guarantor to guarantee the Notes, or


 


(8)                                  to
conform any provision of this Indenture to the “Description of Notes” contained
in the Offering Memorandum.


 


SECTION 9.02.                                     WITH CONSENT OF HOLDERS OF NOTES.


 


Except as provided below
in this Section 9.02, the Company and the Trustee may amend or supplement
this Indenture and the Notes with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of or tender offer or exchange offer for
the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or
Event of Default (except a continuing Default or Event of Default in (i) the
payment of principal, premium, if any, or interest on the Notes and (ii) in
respect of a covenant or provision 


 


71

















 


which under this
Indenture cannot be modified or amended without the consent of the Holder of
each Note affected by such modification or amendment) or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of at least a majority in aggregate principal amount of the Notes,
including Additional Notes, if any, then outstanding voting as a single class
(including consents obtained in connection with a purchase of or tender offer
or exchange offer for the Notes).


 


Without the consent of
each Holder, an amendment or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder):


 


(i)                                     reduce
the principal amount of Notes whose holders must consent to an amendment,
supplement or waiver,


 


(ii)                                  reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption or repurchase of the Notes (other
than provisions relating to Sections 4.12 and 4.18),


 


(iii)                               reduce
the rate of or change the time for payment of interest on any Note,


 


(iv)                              waive
a Default or Event of Default in the payment of principal of or premium or
Liquidated Damages, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from the acceleration),


 


(v)                                 make
any Note payable in money other than that stated in the Notes,


 


(vi)                              make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of holders of Notes to receive payments of principal of
or premium, if any, or interest on the Notes,


 


(vii)                           waive a
redemption or repurchase payment with respect to any Note (other than a payment
required by Section 4.12 or 4.18),


 


(viii)                        release
any Subsidiary Guarantor from any of its obligations under its Subsidiary
Guarantee or this Indenture, except in accordance with the terms of this
Indenture, or


 


(ix)                                make
any change in the foregoing amendment and waiver provisions.


 


The Company may, but
shall not be obligated to, fix a record date for the purpose of determining the
Persons entitled to consent to any supplemental indenture.  If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided that unless such
consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 120 days after such record
date, any such consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.


 


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


 


After an amendment,
supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holder of each Note affected thereby to such Holder’s
address appearing in the Security Register a notice briefly describing the
amendment, supplement or waiver.  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 amended or supplemental
indenture or waiver.


 


72

















 


SECTION 9.03.                                     COMPLIANCE WITH TRUST INDENTURE ACT.


 


Every amendment or
supplement to this Indenture or the Notes shall be set forth in an amended or
supplemental indenture that complies with the TIA as then in effect.


 


SECTION 9.04.                                     REVOCATION AND EFFECT OF CONSENTS.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion thereof that evidences the same debt as the consenting Holder’s
Note, even if notation of the consent is not made on any Note.  However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion thereof if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective.  An
amendment, supplement or waiver shall become effective in accordance with its
terms and thereafter shall bind every Holder.


 


SECTION 9.05.                                     NOTATION ON OR EXCHANGE OF NOTES.


 


The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated.  The Company in exchange for all Notes may issue
and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate new Notes that reflect
the amendment, supplement or waiver.


 


Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.


 


SECTION 9.06.                                     TRUSTEE TO SIGN AMENDMENTS, ETC.


 


The Trustee shall sign
any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.  None of the
Company nor any Subsidiary Guarantor may sign an amendment or supplemental
indenture until its board of directors (or committee serving a similar
function) approves it.  In executing any
amended or supplemental indenture, the Trustee shall be provided with and
(subject to Section 7.01 hereof) shall be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that the execution
of such amended or supplemental indenture is authorized or permitted by this
Indenture and that such amended or supplemental indenture is the legal, valid
and binding obligations of the Company enforceable against it in accordance
with its terms, subject to customary exceptions and that such amended or
supplemental indenture complies with the provisions hereof (including
Section 9.03).


 


ARTICLE 10.



GUARANTEES


 


SECTION 10.01.                              SUBSIDIARY GUARANTEE.


 


Subject to this
Article 10, the Subsidiary Guarantors hereby unconditionally guarantee to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns: 
(a) the due and punctual payment of the principal of, premium, if any,
and interest on the Notes, subject to any applicable grace period, whether at
Stated Maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on the overdue principal of and premium, if any, and, to
the extent permitted by law, interest, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee under this
Indenture, the Registration Rights Agreement or any other agreement with or for
the benefit of the Holders or the Trustee, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration pursuant to
Section 6.02, redemption or otherwise. 
Failing payment when due of any amount so guaranteed or any 


 


73

















 


performance so guaranteed
for whatever reason, the Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately. 
Each Subsidiary Guarantor agrees that this is a guarantee of payment and
not a guarantee of collection.


 


Each Subsidiary Guarantor
hereby agrees that its obligations with regard to its Subsidiary Guarantee
shall be joint and several, unconditional, irrespective of the validity or
enforceability of the Notes or the obligations of the Company under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the Obligations of the Company under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other
than complete performance) which might otherwise constitute a legal or
equitable discharge or defense of a Subsidiary Guarantor.  Each Subsidiary Guarantor further, to the
extent permitted by law, waives and relinquishes all claims, rights and
remedies accorded by applicable law to guarantors and agrees not to assert or
take advantage of any such claims, rights or remedies, including but not
limited to:  (a) any right to require
any of the Trustee, the Holders or the Company (each a “Benefited Party”), as a condition of payment
or performance by such Subsidiary Guarantor, to (1) proceed against the
Company, any other guarantor (including any other Subsidiary Guarantor) of the
Obligations under the Subsidiary Guarantees or any other Person, (2) proceed
against or exhaust any security held from the Company, any such other guarantor
or any other Person, (3) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in favor of the
Company or any other Person, or (4) pursue any other remedy in the power of any
Benefited Party whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of the Company
including any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Subsidiary Guarantees or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Company from any cause other than payment in full of the
Obligations under the Subsidiary Guarantees; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Benefited Party’s errors or omissions
in the administration of the Obligations under the Subsidiary Guarantees,
except behavior which amounts to bad faith; (e)(1) any principles or provisions
of law, statutory or otherwise, which are or might be in conflict with the
terms of the Subsidiary Guarantees and any legal or equitable discharge of such
Subsidiary Guarantor’s obligations hereunder, (2) the benefit of any statute of
limitations affecting such Subsidiary Guarantor’s liability hereunder or the
enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims
and (4) promptness, diligence and any requirement that any Benefited Party
protect, secure, perfect or insure any security interest or lien or any
property subject thereto; (f) notices, demands, presentations, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance of the Subsidiary Guarantees, notices of Default under the
Notes or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Obligations under the Subsidiary Guarantees or
any agreement related thereto, and notices of any extension of credit to the
Company and any right to consent to any thereof; (g) to the extent permitted
under applicable law, the benefits of any “One Action” rule and (h) any
defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict
with the terms of the Subsidiary Guarantees. 
Except to the extent expressly provided herein, including Sections 8.02,
8.03 and 10.05, each Subsidiary Guarantor hereby covenants that its Subsidiary
Guarantee shall not be discharged except by complete performance of the
obligations contained in its Subsidiary Guarantee and this Indenture.


 


If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Subsidiary Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Subsidiary Guarantors,
any amount paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


Each Subsidiary Guarantor
agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. 
Each Subsidiary Guarantor further agrees that, as between the Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Section 6.02 hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby and (y) in the
event of any declaration of acceleration of such obligations as provided in
Section 6.02 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Subsidiary Guarantors for the
purpose of this Subsidiary Guarantee. 
The Subsidiary Guarantors shall have the right to seek contribution 


 


74

















 


from any non-paying
Subsidiary Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Subsidiary Guarantee.


 


SECTION 10.02.                              LIMITATION ON SUBSIDIARY GUARANTOR
LIABILITY.


 


(a)                                  Each
Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the guarantee of
such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any guarantee.  To
effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary
Guarantors hereby irrevocably agree that each Subsidiary Guarantor’s liability
shall be that amount from time to time equal to the aggregate liability of such
Subsidiary Guarantor under the guarantee, but shall be limited to the lesser of
(a) the aggregate amount of the Company’s obligations under the Notes and
this Indenture or (b) the amount, if any, which would not have
(1) rendered the Subsidiary Guarantor “insolvent” (as such term is defined
in the Federal Bankruptcy Code and in the Debtor and Creditor Law of the State
of New York) or (2) left it with unreasonably small capital at the time
its guarantee with respect to the Notes was entered into, after giving effect
to the incurrence of existing Debt immediately before such time; provided, however,
it shall be a presumption in any lawsuit or proceeding in which a Subsidiary
Guarantor is a party that the amount guaranteed pursuant to the guarantee with
respect to the Notes is the amount described in clause (a) above
unless any creditor, or representative of creditors of the Subsidiary
Guarantor, or debtor in possession or Trustee in bankruptcy of the Subsidiary
Guarantor, otherwise proves in a lawsuit that the aggregate liability of the
Subsidiary Guarantor is limited to the amount described in clause (b).


 


(b)                                 In
making any determination as to the solvency or sufficiency of capital of a
Subsidiary Guarantor in accordance with the proviso of Section 10.2(a),
the right of each Subsidiary Guarantor to contribution from other Subsidiary
Guarantors and any other rights such Subsidiary Guarantor may have, contractual
or otherwise, shall be taken into account.


 


SECTION 10.03.                              EXECUTION AND DELIVERY OF SUBSIDIARY
GUARANTEE.


 


To evidence its
Subsidiary Guarantee set forth in Section 10.01, each Subsidiary Guarantor
hereby agrees that a notation of such Subsidiary Guarantee in substantially the
form included in  Exhibit E attached hereto shall be endorsed by an Officer of
such Subsidiary Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such Subsidiary
Guarantor by its President or one of its Vice Presidents.


 


Each Subsidiary Guarantor
hereby agrees that its Subsidiary Guarantee set forth in Section 10.01
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Subsidiary Guarantee.


 


If an Officer whose
signature is on this Indenture or on the Subsidiary Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.


 


The delivery of any Note
by the Trustee, after the authentication thereof hereunder, shall constitute
due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf
of the Subsidiary Guarantors.


 


The Company hereby agrees
that it shall cause each Person that becomes obligated to provide a Subsidiary
Guarantee pursuant to Section 4.19 to execute a supplemental indenture in
form and substance reasonably satisfactory to the Trustee, pursuant to which
such Person provides the guarantee set forth in this Article 10 and
otherwise assumes the obligations and accepts the rights of a Subsidiary
Guarantor under this Indenture, in each case with the same effect and to the
same extent as if such Person had been named herein as a Subsidiary
Guarantor.  The Company also hereby
agrees to cause each such new Subsidiary Guarantor to evidence its guarantee by
endorsing a notation of such guarantee on each Note as provided in this Section 10.03.


 


75

















 


SECTION 10.04.                              SUBSIDIARY GUARANTORS MAY CONSOLIDATE,
ETC., ON CERTAIN TERMS.


 


Except as otherwise
provided in Section 10.05, no Subsidiary Guarantor may consolidate with or
merge with or into (whether or not such Subsidiary Guarantor is the Surviving
Person) another Person whether or not affiliated with such Subsidiary Guarantor
unless:


 


(a)                                  subject
to Section 10.05, the Person formed by or surviving any such consolidation
or merger (if other than a Subsidiary Guarantor or the Company) unconditionally
assumes all the obligations of such Subsidiary Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under this Indenture, the Subsidiary Guarantee and any Registration
Rights Agreements on the terms set forth herein or therein; and


 


(b)                                 the
Subsidiary Guarantor complies with the requirements of Article 5 hereof.


 


In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor Person shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor.  Such successor
Person thereupon may cause to be signed any or all of the Subsidiary Guarantees
to be endorsed upon all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee.  All the Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Subsidiary Guarantees
had been issued at the date of the execution hereof.


 


Except as set forth in
Articles 4 and 5, and notwithstanding clauses (a) and (b) above, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or
another Subsidiary Guarantor, or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Guarantor.


 


SECTION 10.05.                              RELEASES FOLLOWING MERGER, CONSOLIDATION OR
SALE OF ASSETS, ETC.


 


In the event of a sale or
other disposition of all or substantially all of the assets of any Subsidiary
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Capital Stock of any Subsidiary Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transactions) a Subsidiary of the Company, then such Subsidiary Guarantor (in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or other disposition
of all or substantially all of the assets of such Subsidiary Guarantor) shall
be released and relieved of any obligations under its Subsidiary Guarantee; provided
that the net proceeds of such sale or other disposition shall be applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.12.  If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary in accordance
with the provisions of Section 4.17, such Subsidiary shall be released and
relieved of any obligations under its Subsidiary Guarantee.  Upon delivery by the Company to the Trustee
of an Officers’ Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.12, the
Trustee shall execute any documents reasonably required in order to evidence
the release of any Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee.


 


Any Subsidiary Guarantor
not released from its obligations under its Subsidiary Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for
the other obligations of any Subsidiary Guarantor under this Indenture as
provided in this Article 10.


 


76

















 


SECTION 10.06.                              SUBORDINATION OF SUBSIDIARY GUARANTEE.


 


The Obligations of each
Subsidiary Guarantor under its Subsidiary Guarantee pursuant to this
Article 10 will be junior and subordinated to the Senior Debt of such
Subsidiary Guarantor on the same basis as the Notes are junior and subordinated
to Senior Debt of the Company.  For the
purposes of the foregoing sentence, the Trustee and the Holders will have the
right to receive and/or retain payments by any of the Subsidiary Guarantors
only at such times as they may receive and/or retain payments in respect of the
Notes pursuant to this Indenture, including Article 12 hereof.


 


ARTICLE 11.



SATISFACTION AND DISCHARGE


 


SECTION 11.01.                              SATISFACTION AND DISCHARGE.


 


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 the Notes, as to all Notes
issued hereunder, when:


 


(a)                                  either:


 


(i)                                               all
Notes that have been previously authenticated and delivered (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for whose
payment money has previously been deposited in trust or segregated and held in
trust by the Company and is thereafter repaid to the Company or discharged from
the trust) have been delivered to the Trustee for cancellation; or


 


(ii)                                            (i)
all Notes that have not been previously delivered to the Trustee for
cancellation, have become due and payable by their terms or have been called
for redemption, and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or
a combination thereof, in such amounts as shall be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
Debt on the Notes not previously delivered to the Trustee for cancellation or
redemption for principal, premium, if any, and interest on the Notes to the
date of deposit, in the case of Notes that have become due and payable, or to
the Stated Maturity or redemption date, as the case may be; (ii) the Company
has paid all other sums payable by the Company with respect to the Notes under
this Indenture; and (iii) the Company has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes at
Stated Maturity or on the redemption date, as the case may be.


 


in the case of either clause (i) or (ii):


 


(x)                                   no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which the Company is
bound; and


 


(y)                                 the
Company shall have delivered to the Trustee an Officers’ Certificate and
Opinion of Counsel stating that all conditions precedent relating to the
satisfaction and discharge of this Indenture have been satisfied.


 


SECTION 11.02.                              DEPOSITED CASH AND U.S. GOVERNMENT
SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.


 


Subject to
Section 11.03, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 11.02, the “Trustee”)
pursuant to Section 11.01 hereof in respect of the outstanding Notes shall
be held in trust and 


 


77

















 


applied by the Trustee,
in accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest but such cash and securities need not be
segregated from other funds except to the extent required by law.


 


SECTION 11.03.                              REPAYMENT TO COMPANY.


 


Any cash or non-callable
U.S. Government Securities 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 Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter,
as an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, 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), notice that such cash and securities remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash
and securities then remaining shall be repaid to the Company.


 


ARTICLE 12.



SUBORDINATION


 


SECTION 12.01.                              AGREEMENT TO SUBORDINATE


 


The Company agrees, and
each Holder by accepting a Note agrees, that the payment of principal of,
premium and Liquidated Damages, if any, and interest on, and all other amounts
payable in respect of, the Notes is subordinated in right of payment, to the extent
and in the manner provided in this Article 12 and subject to the
provisions of Article 8 hereof, to the prior payment in full of all Senior
Debt and that the subordination is for the benefit of and enforceable by the
holders of such Senior Debt. The Notes shall in all respects rank pari passu
with any future senior subordinated Indebtedness and senior to all existing and
future subordinated Indebtedness of the Company, and only Senior Debt shall
rank senior to the Notes in accordance with the provisions set forth
herein.  All provisions of this
Article 12 shall be subject to Section 12.12.  All references to “Senior Debt” in this
Article 12 are to Senior Debt of the Company.


 


SECTION 12.02.                              LIQUIDATION, DISSOLUTION, BANKRUPTCY


 


(a)                                  Upon
any distribution to creditors of the Company in a liquidation or dissolution of
the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, an assignment for
the benefit of creditors or any marshalling of the Company’s assets and
liabilities, the holders of Senior Debt will be entitled to receive payment in
full in cash of all Obligations due in respect of the Senior Debt (including
interest after the commencement of any of these proceedings at the rate
specified in the applicable Senior Debt whether or not allowed in the relevant
proceeding) before the Holders of Notes will be entitled to receive any payment
with respect to the Notes, and until all Obligations with respect to the Senior
Debt are paid in full in cash, any distribution to which the Holders of Notes
would be entitled shall be made to the holders of Senior Debt (except that
Holders of Notes may receive and retain Permitted Junior Securities and
payments made from the trust described under Article 8).


 


(b)                                 Until
the Senior Debt is paid in full in cash, any distribution to which Holders of
the Notes would be entitled but for this Article 12 will be made to
holders of the Senior Debt as their interests may appear (except that Holders
of Notes may receive and retain payments made in Permitted Junior Securities
and payments and other distributions made from the trust described in
Article 8 hereof; provided that (i) no Holder of the Notes
shall have the right to receive and retain any such Permitted Junior Securities
if the existence of such right would have the effect of causing the Notes to be
treated in the same class of claims as the Senior Debt of the Company or 


 


78

















 


any class of claims which
is pari
passu with such Senior Debt and (ii) holders of Senior Debt shall be
entitled to receive any cash payments made to any Holder of Notes on the
account of Permitted Junior Securities until all Obligations in respect of
Senior Debt have been paid in full in cash).


 


SECTION 12.03.                              DEFAULT ON SENIOR DEBT


 


The Company may not make
any payment upon or in respect of the Notes (except in Permitted Junior
Securities or from the trust described under Article 8) (“pay the
Notes”) if (i) a default in the payment of the principal
of, premium, if any, or interest on Designated Senior Debt occurs and is
continuing beyond any applicable period of grace; or (ii) any other default
occurs and is continuing with respect to Designated Senior Debt that permits
holders of such Designated Senior Debt to accelerate its maturity and the
trustee receives a Payment Blockage Notice from the Company or the
Representatives of the holders of such Designated Senior Debt.


 


During the continuance of
any default (other than a default described in clause (i) or (ii) of the
preceding paragraph) with respect to any Designated Senior Debt pursuant to
which the maturity thereof may be accelerated immediately without further
notice (except any notice required to effect the acceleration) or the
expiration of any applicable grace period, the Company may not pay the Notes
for a period (a “Payment Blockage
Period”) commencing upon the receipt by the Company and the
Trustee of written notice of such default from the Representative of the
holders of such Designated Senior Debt or, if there is no Representative, from
the holders of such Designated Senior Debt, specifying an election to effect a
Payment Blockage Period (a “Payment Blockage Notice”) and ending 179 days thereafter
(unless such Payment Blockage Period is earlier terminated (a) by written
notice to the Trustee and the Company from the Representative of the holders of
such Designated Senior Debt or, if there is no Representative, from the holders
of such Designated Senior Debt that gave such Payment Blockage Notice, (b)
because such default is no longer continuing or (c) because such Designated
Senior Debt has been repaid in full in cash). No new Payment Blockage Period
may be commenced unless and until (i) 360 days have elapsed since the effectiveness
of the immediately prior Payment Blockage Notice and (ii) all scheduled
payments of principal, premium, if any, interest and Liquidated Damages, if
any, on the Notes that have come due during the Payment Blockage Period have
been paid in full in cash.  No
non-payment default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice unless the default shall have been waived
for a period of not less than 90 days. 
Following the expiration of any period during which the Company is
prohibited from making payments on the Notes pursuant to a Payment Blockage
Notice, the Company shall (unless otherwise prohibited as described in the
first two sentences of this paragraph) resume making any and all required
payments in respect of the Notes, including, without limitation, any missed
payments, unless the maturity of any Designated Senior Debt has been
accelerated, and such acceleration remains in full force and effect.


 


The Company shall give
prompt written notice to the Trustee of any default in the payment of any
Senior Debt or any acceleration under any Senior Debt or under any agreement
pursuant to which Senior Debt may have been issued.  Failure to give such notice shall not effect the subordination of
the Notes to the Senior Debt or the application of the other provisions
provided in this Article 12.


 


SECTION 12.04.                              ACCELERATION OF PAYMENT OF NOTES.


 


If payment of the Notes
is accelerated when Designated Senior Debt is outstanding, the Company may not
pay the Notes until five days after the Representative of the holders of such
Designated Senior Debt or, if there is no Representative, the holders of such
Designated Senior Debt receive notice of such acceleration and, thereafter, may
pay the Notes only if this Indenture otherwise permits payment at that time.


 


SECTION 12.05.                              WHEN DISTRIBUTION MUST BE PAID OVER.


 


If a payment or
distribution is made to Holders that because of this Article 12 should not
have been made to them, the Trustee or the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt (pro rata as to each of such
holders of Senior Debt on the basis of the respective amounts of Senior Debt
paid to them) and pay it over to them or their Representative as their
interests may appear.


 


79

















 


SECTION 12.06.                              SUBROGATION


 


After all Senior Debt is
paid in full and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Debt that is pari passu with the Notes)
to the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders
have been applied to the payment of Senior Debt.  A distribution made under this Article 12 to holders of
Senior Debt that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on such Senior Debt.


 


SECTION 12.07.                              RELATIVE RIGHTS


 


This Article 12
defines the relative rights of Holders and holders of Senior Debt.  Nothing in this Indenture shall:


 


(a)                                  impair,
as between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium, if any, and interest
on, the Notes in accordance with their terms;


 


(b)                                 affect
the relative rights of Holders and creditors of the Company other then their
rights in relation to holders of Senior Debt; or


 


(c)                                  prevent
the Trustee or any Holder from exercising its available remedies upon a Default
or an Event of Default, subject to the rights of holders of Senior Debt to
receive distributions otherwise payable to Holders.


 


SECTION 12.08.                              SUBORDINATION MAY NOT BE IMPAIRED BY
COMPANY


 


No right of any holder of
Senior Debt to enforce the subordination of the Debt evidenced by the Notes
shall be impaired by any act or failure to act by the Company or by its failure
to comply with this Indenture.


 


SECTION 12.09.                              RIGHTS OF TRUSTEE AND PAYING AGENT


 


Notwithstanding
Section 12.03, the Trustee or Paying Agent may continue to make payments
on the Notes and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Responsible Officer receives
notice satisfactory to it that payments may not be made under this
Article 12.  The Company, the
Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Senior Debt may give the notice; provided, however, that, if an issue of Senior
Debt has a Representative, only the Representative may give the notice.


 


The Trustee in its
individual or any other capacity may hold Senior Debt with the same rights it
would have if it were not Trustee.  The
Registrar and co-registrar and the Paying Agent may do the same with like
rights.  The Trustee shall be entitled
to all the rights set forth in this Article 12 with respect to any Senior
Debt that may at any time be held by it, to the same extent as any other holder
of such Senior Debt; and nothing in Article 7 shall deprive the Trustee of
any of its rights as such holder. 
Nothing in this Article 12 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.07.


 


SECTION 12.10.                              DISTRIBUTION OR NOTICE TO REPRESENTATIVE


 


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


 


80

















 


SECTION 12.11.                              ARTICLE 12 NOT TO PREVENT EVENTS OF
DEFAULT OR LIMIT RIGHT TO ACCELERATE


 


Nothing in this
Article 12 shall prevent an Event of Default in accordance with
Article 6 or have any effect on the right of the Holders or the Trustee to
accelerate the maturity of the Notes or to exercise the rights and remedies in
Article 6.


 


SECTION 12.12.                              TRUST MONEYS NOT SUBORDINATED


 


Notwithstanding anything
contained herein to the contrary, payments from cash or the proceeds of
non-callable U.S. Government Securities held in trust under Article 8 by
the Trustee for the payment of principal of and interest on the Notes shall not
be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article 12, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Debt or any other creditor of the Company.


 


SECTION 12.13.                              TRUSTEE ENTITLED TO RELY


 


Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Holders
shall be entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (b) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Holders or (c) upon a certificate of the Representative of
the holders of Senior Debt or, if there is no Representative, the holders of
Senior Debt for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other Debt of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article 12.  In the event that the
Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article 12, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment. 
The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this
Article 12.


 


SECTION 12.14.                              TRUSTEE TO EFFECTUATE SUBORDINATION


 


Each Holder by accepting
a Note authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Debt as provided in this
Article 12 and appoints the Trustee as attorney-in-fact for any and all
such purposes.


 


SECTION 12.15.                              TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
DEBT


 


The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall mistakenly pay over or distribute to
Holders or the Company or any other Person, money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article 12 or
otherwise, except if such mistake was the result of the Trustee’s gross negligence
or willful misconduct.


 


SECTION 12.16.                              RELIANCE BY HOLDERS OF SENIOR DEBT ON
SUBORDINATION PROVISIONS


 


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


 


81

















 


ARTICLE 13.


 


MISCELLANEOUS


 


SECTION 13.01.                              TRUST INDENTURE ACT CONTROLS.


 


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


 


SECTION 13.02.                              NOTICES.


 


Any notice or
communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first class mail (registered or
certified, return receipt requested), facsimile transmission or overnight air
courier guaranteeing next-day delivery, to the other’s address:


 


If to
the Company:


 


Great
Lakes Dredge & Dock Corporation


2122
York Road


Oak
Brook, Illinois 60523


Attention:  President and Chief Financial Officer


Telecopier
No.:  (610) 574-3007


 


With a
copy to:


 


Kirkland
& Ellis LLP


200
East Randolph Drive


Chicago,
Illinois 60601


Attention:  Dennis M. Myers, P.C.


Telecopier
No.  (312) 660-0478


 


If to
the Trustee:


 


BNY
Midwest Trust Company


2 N.
LaSalle Street – Suite 1020


Chicago,
Illinois 60602


Attention:  Mary Callahan


Telecopier
No.:  (312) 827-8542


 


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


 


All notices and
communications (other than those sent to the Trustee or Holders) shall be
deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile
transmission; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next-day delivery.  All notices and communications to the
Trustee or Holders shall be deemed duly given and effective only upon receipt.


 


Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next-day
delivery to its address shown on the Security Register.  Any notice or
communication shall also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.


 


82

















 


If a notice or
communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.


 


If the Company mails a
notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.


 


SECTION 13.03.                              COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES.


 


Holders may communicate
pursuant to TIA §312(b) with other Holders with respect to their rights under
this Indenture or the Notes.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA §312(c).


 


SECTION 13.04.                              CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.


 


Upon any request or
application by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee:


 


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


 


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


 


SECTION 13.05.                              STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION.


 


Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than a certificate provided pursuant to TIA §314(a)(4))
shall comply with the provisions of TIA §314(e) and shall include:


 


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


 


(b)                                 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;


 


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


 


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


 


With respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate,
certificates of public officials or reports or opinions of experts.


 


SECTION 13.06.                              RULES BY TRUSTEE AND AGENTS.


 


The Trustee may make
reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.


 


83

















 


SECTION 13.07.                              NO PERSONAL LIABILITY OF DIRECTORS,
OFFICERS, EMPLOYEES AND STOCKHOLDERS.


 


No past, present or
future director, officer, employee, incorporator or stockholder of the Company
or any Subsidiary Guarantor, as such, shall have any liability for any
obligations of the Company or of the Subsidiary Guarantors under the Notes,
this Indenture, the Subsidiary Guarantees or for any claim based on, in respect
of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.   The waiver and release may not
be effective to waive or release liabilities under the federal securities laws.


 


SECTION 13.08.                              GOVERNING LAW.


 


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


 


SECTION 13.09.                              NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS.


 


This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or
its Subsidiaries or of any other Person.  Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.


 


SECTION 13.10.                              SUCCESSORS.


 


All covenants and
agreements of the Company in this Indenture and the Notes shall bind its
successors.  All covenants and agreements of the Trustee in this Indenture
shall bind its successors.


 


SECTION 13.11.                              SEVERABILITY.


 


In case any provision in
this Indenture or in the Notes 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 13.12.                              COUNTERPART ORIGINALS.


 


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


 


SECTION 13.13.                              TABLE OF CONTENTS, HEADINGS, ETC.


 


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


 


SECTION 13.14.                              QUALIFICATION OF THIS INDENTURE.


 


The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of any
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys’ fees and expenses for the Company, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this
Indenture and the Notes.  The Trustee
shall be entitled to receive from the Company any such Officers’ Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.


 


[Signatures on following page]


 


84

















 


SIGNATURES


 


Dated as of December 22, 2003


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  GLDD MERGER SUB, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Deborah
  A. Wensel

  	
   

  
	
   

  	
   

  	
  Name: Deborah A. Wensel

  
	
   

  	
   

  	
  Title: Senior Vice President, Chief 

  
	
   

  	
   

  	
           
  Financial Officer and Treasurer

  



 

















 


	
   

  	
  TRUSTEE:

  
	
   

  	
   

  
	
   

  	
  BNY MIDWEST TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mary
  Callahan

  	
   

  
	
   

  	
   

  	
  Name: Mary Callahan

  
	
   

  	
   

  	
  Title: Assistant Vice President

  



 

















 


EXHIBIT
A


 


(Face of Note)


 


73/4%
Senior Subordinated Notes due 2013


 


	
   

  	
   

  	
  CUSIP 
              

  
	
  No.

  	
   

  	
  $               

  



 


 


[GLDD
MERGER SUB, INC.]


 


[GREAT
LAKES DREDGE & DOCK CORPORATION]


 


promises to pay to CEDE & CO., INC. or registered
assigns, the principal sum of
                         
Dollars
($                        )
on December 15, 2013.


 


Interest Payment Dates:  June 15 and December 15, commencing June 15, 2004.


 


Record Dates:  June 1 and December 1.


 


Dated: 
                         ,
20[    ].


 


A-1

















 


IN WITNESS WHEREOF, the
Company has caused this Note to be signed manually or by facsimile by its duly
authorized officer.


 


	
   

  	
  [GLDD MERGER SUB, INC.]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GREAT LAKES DREDGE & DOCK CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the
[Global]


Notes referred to in the


within-mentioned
Indenture:


 


BNY MIDWEST TRUST
COMPANY,


as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


	
  Dated

  	
   

  	
  , 20

  	
   

  	
   

  



 


A-2

















 


(Back of Note)


 


73⁄4% Senior
Subordinated Notes due 2013


 


[Insert the Global Note Legend, if
applicable pursuant to the terms of the Indenture]


 


[Insert the Private Placement
Legend, if applicable pursuant to the terms of the Indenture]


 


Capitalized terms used
herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.


 


1.                                       Interest.  [GLDD Merger Sub, Inc.] [Great Lakes Dredge &
Dock Corporation], a Delaware corporation (“the Company”), promises to pay interest on
the principal amount of this Note at 73⁄4% per annum until maturity and shall pay
Liquidated Damages, if any, as provided in Section 5 of the Registration
Rights Agreement.  The Company shall pay interest semi-annually on
June 15 and December 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest Payment Date”).  Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 22, 2003; provided, however, that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment
Date shall be the first of June 15 or December 15 to occur after the
date of issuance, unless such June 15 or December 15 occurs within
one calendar month of such date of issuance, in which case the first Interest
Payment Date shall be the second of June 15 and December 15 to occur
after the date of issuance.  The Company
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time to time
at a rate that is 1% per annum in excess of the interest rate then in effect
under the Indenture and this Note; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any (without regard to any
applicable grace periods), from time to time at the same rate to the extent
lawful.  Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.


 


2.                                       Method of Payment. 
The Company shall pay interest on the Notes (except defaulted interest) to the
Persons in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the June 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are cancelled after
such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted
interest.  The Notes shall be payable as to principal, premium, if any,
and interest and Liquidated Damages, if any, at the office or agency of the
Company maintained for such purpose, or, at the option of the Company, payment
of interest may be made by check mailed to the Holders at their addresses set
forth in the Security Register; provided, however, that payment by
wire transfer of immediately available funds shall be required with respect to
principal of and interest and Liquidated Damages, if any, and premium, if any,
on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent.  Such payment shall be 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.


 


3.                                       Paying Agent and Registrar.  Initially,
BNY Midwest Trust Company, the Trustee under the Indenture, shall act as Paying
Agent and Registrar.  The Company may change any Paying Agent or Registrar
without notice to any Holder.  The Company or any of its Subsidiaries may
act in any such capacity.


 


4.                                       Indenture.  The Company issued the Notes under an
Indenture, dated as of December 22, 2003 (“Indenture”), among [the Company,] [as
successor to GLDD Merger Sub, Inc.,] the Guarantors from time to time party
thereto and the Trustee.  The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). 
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms.  To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.  The Notes are obligations of the Company
unlimited in aggregate principal amount.


 


A-3

















 


5.                                       Optional Redemption.


 


(a)                                  Except
as set forth in clause (b) of this Paragraph 5, the Notes will not be
redeemable at the option of the Company prior to December 15, 2008.  Starting on that date, the Company may
redeem all or any portion of the Notes, at once or over time, after giving the
required notice under the Indenture. The Notes may be redeemed at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Liquidated Damages, if any, to the
applicable redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date), if redeemed during the twelve-month period commencing on
December 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2008

  	
   

  	
  103.875

  	
  %

  
	
  2009

  	
   

  	
  102.583

  	
  %

  
	
  2010

  	
   

  	
  101.292

  	
  %

  
	
  2011 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 At
any time prior to December 15, 2006, the Company may (but will not have
the obligation to) on any one or more occasions redeem up to 35% of the
aggregate principal amount of the Notes issued under the Indenture at a
redemption price (expressed as a percentage of principal amount) equal to
107.750% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date), with the net cash proceeds
of one or more Equity Offerings, provided that at least 65% of the
aggregate principal amount of the Notes initially issued under the Indenture
remain outstanding immediately after the occurrence of the redemption
(excluding Notes held by the Company and its Subsidiaries); provided,
further,
that the redemption shall occur within 180 days of the date of the closing of
the Equity Offering.


 


(c)                                  Any
prepayment pursuant to this paragraph shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.


 


6.                                       Mandatory Redemption.  Except as set forth in Sections 4.12 and
4.18 of the Indenture, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


7.                                       Repurchase at Option of Holder.


 


(a)   Upon the occurrence of a Change of Control,
each Holder shall have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple of $1,000) of such Holder’s
Notes (a “Change of Control
Offer”) at a purchase price in cash equal to 101% of the
aggregate principal amount of the Notes repurchased, plus accrued and unpaid
interest and Liquidated Damages, if any, on the Notes repurchased, to the
Purchase Date (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant Interest Payment Date).


 


(b)   If the Company or one of its Restricted Subsidiaries
consummates any Asset Sales, they shall not
be required to apply any Excess Proceeds in accordance with the Indenture until
the aggregate Excess Proceeds from all Asset Sales following the date the Notes
are first issued exceeds $10.0 million.
Thereafter, the Company shall, after application of the additional aggregate $10.0
million of Excess Proceeds as provided in
the fourth paragraph of Section 4.12 of the Indenture, commence an offer
for Notes pursuant to the Indenture by applying the Excess Proceeds (an
“Asset Sale Offer”)
pursuant to Section 3.09 of the Indenture to purchase the maximum
principal amount of Notes (including any Additional Notes) and, if the Company
is required to do so under the terms of any Indebtedness that is pari passu
with the Notes, such other Indebtedness on a pro rata basis with the
Notes, that may be purchased out of the Excess Proceeds, at an offer price in
cash equal to 100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, to the date fixed for the closing of
such offer in accordance with the procedures set forth in the Indenture.  To the extent that the aggregate amount of
Notes (including Additional Notes) and other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use such deficiency for any purpose
not 


 


A-4

















 


prohibited by the
Indenture.  If the aggregate principal
amount of Notes and other pari passu Indebtedness tendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and such other pari passu Indebtedness to be purchased on
a pro
rata basis.  Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Notes.


 


8.                                       Notice of Redemption. 
Notice of redemption shall be mailed at least 30 days but not more than 60 days
before the redemption date to each Holder whose Notes are to be redeemed at its
registered address.  Notes in denominations larger than $1,000 may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by
a Holder are to be redeemed.  On and after the redemption date interest
ceases to accrue on Notes or portions thereof called for redemption.


 


9.                                       Denominations, Transfer, Exchange. 
The Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000.  [This Note shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed hereon and the
aggregate principal amount of Notes represented hereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and
redemptions.]  The transfer of Notes may
be registered and Notes may be exchanged as provided in the Indenture. 
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture.  The Company need not exchange or register the transfer of any
Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part.  Also, the Company need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.


 


10.                                 Persons Deemed Owners. 
The registered Holder of a Note may be treated as its owner for all purposes.


 


11.                                 Amendment, Supplement and Waiver. 
Subject to certain exceptions, the Company and the Trustee may amend or
supplement the Indenture or the Notes with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, including
Additional Notes, if any, voting as a single class (including consents obtained
in connection with a purchase of or tender offer or exchange offer for the
Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing
Default or Event of Default (except a continuing Default or Event of Default in
the payment of principal, premium, if any, interest or Liquidated Damages, if
any, on the Notes) or compliance with any provision of the Indenture or the
Notes (except for certain covenants and provisions of the Indenture which
cannot be amended without the consent of each Holder) may be waived with the
consent of the Holders of a majority in principal amount of the then
outstanding Notes, including Additional Notes, if any, then outstanding voting
as a single class (including consents obtained in connection with a purchase of
or tender offer or exchange offer for the Notes).  Without the consent of any Holder, the Company and the Trustee
may amend or supplement the Indenture or the Notes to cure any ambiguity,
defect or inconsistency, to provide for uncertificated notes in addition to or
in place of certificated notes, to provide for the assumption of the Company’s
or a Subsidiary Guarantor’s obligations to Holders of Notes in the case of a
merger or consolidation or sale of all or substantially all of the Company’s
assets, to provide for the issuance of Additional Notes in accordance with the
provisions set forth in this Indenture on the date of this Indenture, to make
any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under the Indenture
of any Holder, to comply with requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act,
to allow any Subsidiary Guarantor to guarantee the Notes, or to conform any
provision of the Indenture to the “Description of Notes” contained in the
Offering Memorandum.


 


12.                                 Defaults and Remedies. 
Each of the following is an Event of Default under the Indenture: (i) default
for 30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes (whether or not permitted by Article 12 of the
Indenture); (ii) default in payment when due of the principal of or premium, if
any, on the Notes (whether or not permitted by Article 12 of the
Indenture); (iii) failure by the Company or any of its Restricted Subsidiaries
to comply with Section 4.18 of the Indenture; (iv) failure by the Company
or any of its Restricted Subsidiaries for 60 days after notice by the Trustee
or by the Holders of at least 25% in principal amount of Notes then outstanding
to comply with any of its other agreements in the Indenture or the Notes; 


 


A-5

















 


(v) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Restricted Subsidiaries) whether the Indebtedness
or guarantee now exists, or is created after the date of the Indenture, which
default: (A) is caused by a failure to pay principal on such Indebtedness at
final stated maturity prior to the expiration of the grace period provided in
the Indebtedness on the date of the default (a “Payment Default”) or (B) results in the
acceleration of the Indebtedness prior to its stated maturity and, in each
case, the principal amount of any Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated (after giving effect
to any applicable grace period), aggregates $10.0 million or more; (vi) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $10.0 million (net of any amount with respect to which
a reputable insurance company with assets over $100.0 million has acknowledged
liability in writing), which judgments are not paid, discharged or stayed for a
period of 60 days after their entry; (vii)
certain events of bankruptcy, insolvency or reorganization affecting the
Company or any of its Significant Subsidiaries; and (viii) except as
permitted by the Indenture, any Subsidiary Guarantee of any Significant
Subsidiary (or group of Subsidiary Guarantors that, collectively, would be a
Significant Subsidiary) shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Subsidiary Guarantor that is a Significant Subsidiary (or group
of Subsidiary Guarantors that, collectively, would be a Significant
Subsidiary), or any Person acting on behalf of any Subsidiary Guarantor (or
group of Subsidiary Guarantors) that is a Significant Subsidiary, shall deny or
disaffirm its obligations under its Subsidiary Guarantee.


 


If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable.  Upon a declaration of
acceleration, such principal and interest will become due and payable upon the
earlier to occur of (x) the 5th day after notice thereof has been
given to holders of Designated Senior Debt and (y) the date on which all of the
Designated Senior Debt has been accelerated. 
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency described in the
Indenture, all outstanding Notes shall become due and payable without further
action or notice.  Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest or
Liquidated Damages) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or Liquidated Damages on, or the principal
of, the Notes.  The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


 


13.                                 Trustee Dealings with Company.  Subject to certain limitations, the Trustee
in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Company or any Affiliate of the Company with
the same rights it would have if it were not Trustee.


 


14.                                 No Recourse Against Others. 
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or of any Subsidiary Guarantor, as such, shall have
any liability for any obligations of the Company or of the Subsidiary
Guarantors under the Indenture, the Notes, the Subsidiary Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder by accepting a Note waives and releases all such
liability.


 


15.                                 Authentication. 
This Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.


 


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


 


A-6

















 


17.                                 Additional Rights of Holders of
Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes that are Initial Notes shall have all the rights
set forth in the Registration Rights Agreement, dated as of December 22,
2003, among the Company, the Guarantors from time to time
party thereto and the initial purchasers named therein or, in the case of
Additional Notes, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have the rights set forth in one or more Registration Rights
Agreements, if any, among the Company and the other parties thereto, relating to
rights given by the Company to the purchasers of any Additional Notes.


 


18.                                 Subordination.  Payment of principal, interest and premium
and Liquidated Damages, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in the Indenture.


 


19.                                 CUSIP Numbers.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


20.                                 Governing Law.  The internal law of the State of New York
shall govern and be used to construe this Note 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.


 


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


 


[GLDD Merger Sub,
Inc.]


[Great Lakes
Dredge & Dock Corporation]


2122 York Road


Oak Brook,
Illinois 60523


Attention: [Chief
Financial Officer]


 


A-7

















 


Option of Holder to Elect Purchase


 


If you want to elect to
have this Note purchased by the Company pursuant to Section 4.12 or 4.18
of the Indenture, check the box below:


 


o                                    Section 4.12


 


o                                    Section 4.18


 


If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.12 or Section 4.18 of
the Indenture, state the amount you elect to have purchased:  $                                      


 


	
  Date:

  	
  Your Signature:

  
	
   

  	
  (Sign exactly as your name appears on the Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIGNATURE GUARANTEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

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

  



 


A-8

















 


Assignment
Form


 


To assign this Note, fill in the form below:


 


(I) or (we) assign and transfer this Note to


 


 


 


(Insert assignee’s social
security or other tax I.D. no.)


 


 


 


 


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


 


and irrevocably appoint


as agent to transfer this
Note on the books of the Company.  The agent may substitute another to act
for him.


 


	
  Date:

  	
   

  	
   

  



 


	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the face of
  this Note)

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
					



 


A-9

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE


 


The following exchanges of a part of this Global Note
for an interest in another Global Note or for a Definitive Note, or exchanges
of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount o

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount 

  of this Global Note

  	
   

  	
  Principal Amount 

  of this Global Note

  following such 

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10

















 


EXHIBIT
B


 


FORM
OF CERTIFICATE OF TRANSFER


 


Great Lakes Dredge &
Dock Corporation


2122 York Road


Oak Brook, IL 60523


Attention: Chief
Financial Officer


Telecopier No.: (610)
574-3007


 


BNY Midwest Trust Company


2 N. LaSalle Street –
Suite 1020


Chicago, IL 60602


Attention: Corporate
Trust Department


Telecopier No.: (312)
827-8542


 


Re:                               73/4%
Senior Subordinated Notes due 2013


 


Reference is hereby made
to the Indenture, dated as of December 22, 2003 (the “Indenture”), among Great
Lakes Dredge & Dock Corporation, as successor to GLDD Merger Sub, Inc., as
issuer (the “Company”), the Guarantors from time to time party there to
and BNY Midwest Trust Company, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                             ,
(the “Transferor”)
owns and proposes to transfer the Note[s] or interest in such Note[s] specified
in Annex A hereto, in the principal amount of $                  
in such Note[s] or interests (the “Transfer”), to
                                            
(the “Transferee”),
as further specified in Annex A hereto. 
In connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.


 


2.  o  Check if Transferee will take delivery of a beneficial
interest in the Regulation S Global Note or a Definitive Note pursuant to
Regulation S.  The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(a) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser).  Upon
consummation of the proposed transfer in accordance with the 


 


B-1

















 


terms of the Indenture,
the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.


 


3.  o  Check and complete if Transferee will take delivery of
a beneficial interest in the IAI Global Note or a Definitive Note pursuant to
any provision of the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


(a)                                  o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)                                 o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)                                  o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)                                 o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of
a principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Definitive Notes and in the Indenture and the Securities Act.


 


4.  o  Check if Transferee will take delivery of a beneficial
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.


 


(a)  o  Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(b)  o  Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United 


 


B-2

















 


States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(c)  o  Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant
to and in compliance with an exemption from the registration requirements of
the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 


B-3

















 


ANNEX A TO
CERTIFICATE OF TRANSFER


 


1.                                       The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)                                  o   a beneficial interest in the:


 


(i)                           o   144A Global Note (CUSIP                 ),
or


 


(ii)                        o   Regulation S Global Note (CUSIP
                ),
or


 


(iii)                     o   IAI Global Note (CUSIP
                );
or


 


(b)                                 o   a Restricted Definitive Note.


 


2.                                       After
the Transfer the Transferee will hold:


 


[CHECK ONE OF (a), (b) OR (c)]


 


(a)                                  o   a beneficial interest in the:


 


(i)                           o   144A Global Note (CUSIP
                ),
or


 


(ii)                        o   Regulation S Global Note (CUSIP
                ),
or


 


(iii)                     o   IAI Global Note (CUSIP
                );
or


 


(iv)                    o   Unrestricted Global Note (CUSIP
                );
or


 


(b)                                 o   a Restricted Definitive Note; or


 


(c)                                  o   an Unrestricted Definitive Note,


 


in
accordance with the terms of the Indenture.


 


B-4

















 


EXHIBIT
C


 


FORM
OF CERTIFICATE OF EXCHANGE


 


Great Lakes Dredge &
Dock Corporation


2122 York Road


Oak Brook, IL 60523


Attention: Chief
Financial Officer


Telecopier No.: (610)
574-3007


 


BNY Midwest Trust Company


2 N. LaSalle Street –
Suite 1020


Chicago, IL 60602


Attention: Corporate
Trust Department


Telecopier No.: (312)
827-8542


 


Re:                               73/4%
Senior Subordinated Notes due 2013


 


Reference is hereby made
to the Indenture, dated as of December 22, 2003 (the “Indenture”), among Great
Lakes Dredge & Dock Corporation, as successor to GLDD Merger Sub, Inc., as issuer
(the “Company”),
the Guarantors from time to time party thereto and BNY Midwest Trust Company,
as trustee.  Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.


 


                                               ,
(the “Owner”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of
$                  
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner hereby certifies that:


 


1.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


(a)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Note and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the “Securities Act”), (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


(b)  o  Check if Exchange is from beneficial
interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(c)  o  Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


(d)  o  Check if Exchange is from Restricted Definitive Note
to Unrestricted Definitive Note. 
In connection with the Owner’s Exchange of a Restricted Definitive Note
for an Unrestricted Definitive Note, the


 


C-1

















 


Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


2.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a)  o  Check if Exchange is from beneficial interest
in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)  o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CIRCLE
ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Definitive Note and pursuant to and
in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.


 


C-2

















 


This certificate and the
statements contained herein are made for your benefit and the benefit of the
Company.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 


C-3

















 


EXHIBIT
D


 


FORM
OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Great Lakes Dredge &
Dock Corporation


2122 York Road


Oak Brook, IL 60523


Attention: Chief
Financial Officer


Telecopier No.: (610)
574-3007


 


BNY Midwest Trust Company


2 N. LaSalle Street –
Suite 1020


Chicago, IL 60602


Attention: Corporate
Trust Department


Telecopier No.: (312)
827-8542


 


Re:                               73/4  %
Senior Subordinated Notes due 2013


 


Reference is hereby made
to the Indenture, dated as of December 22, 2003 (the “Indenture”), among Great
Lakes Dredge & Dock Corporation, as successor to GLDD Merger Sub, Inc., as
issuer (the “Company”), the Guarantors from time to time party thereto
and BNY Midwest Trust Company, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


In connection with our
proposed purchase of
$                   
aggregate principal amount of:


 


(a)  o  a beneficial interest in a Global Note, or


 


(b)  o  a Definitive Note,


 


we
confirm that:


 


1.                                       We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities Act”).


 


2.                                       We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A under
the Securities Act to a “qualified institutional buyer” (as defined therein),
(C) to an institutional “accredited investor” (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and, if such transfer is in respect of a principal amount
of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any Person purchasing the Definitive
Note or beneficial interest in a Global Note from us in a transaction meeting
the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.


 


3.                                       We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions.  We further understand
that the Notes purchased by us will bear a legend to the foregoing effect.


 


4.                                       We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any accounts
for 


 


D-1

















 


which we are acting are
each able to bear the economic risk of our or its investment.  We have had access to such financial and
other information and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary in connection with our decision to purchase the Notes.


 


5.                                       We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion and are not acquiring the Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act of the
securities laws of any state of the United States or any other applicable
jurisdiction.


 


You and the Company are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.  This letter shall be governed
by, and construed in accordance with, the laws of the State of New York.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Insert Name of
  Transferor]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


D-2

















 


EXHIBIT
E


 


FORM
OF NOTATION OF GUARANTEE


 


For value received, each
Guarantor (which term includes any successor Person under the Indenture),
jointly and severally, unconditionally guarantees, to the extent set forth in
the Indenture and subject to the provisions in the Indenture, dated as of
December 22, 2003 (the “Indenture”), among [Great Lakes Dredge
& Dock Corporation, as successor to] GLDD Merger Sub, Inc., as issuer (the
“Company”),
the Guarantors from time to time party thereto and BNY Midwest Trust Company,
as trustee (the “Trustee”), (a) the due and punctual payment of the principal
of, premium, if any, and interest and Liquidated Damages, if any, on the Notes,
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, if any, and, to
the extent permitted by law, interest and Liquidated Damages, if any, 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 stated maturity, 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 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee.  This Guarantee is subject to release as and to the extent set
forth in Sections 8.02, 8.03 and 10.05 of the Indenture.  Each Holder of a Note, by accepting the same
agrees to and shall be bound by such provisions.  Capitalized terms used herein and not defined are used herein as
so defined in the Indenture.


 


	
   

  	
  [NAME
  OF GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-1

















 


	
  ARTICLE 1.

  	
  DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
   

  
	
  Section 1.01.

  	
   

  	
  Definitions

  	
   

  
	
  Section 1.02.

  	
   

  	
  Other Definitions

  	
   

  
	
  Section 1.03.

  	
   

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
  Section 1.04.

  	
   

  	
  Rules of Construction

  	
   

  
	
  ARTICLE 2.

  	
  THE NOTES

  	
   

  
	
  Section 2.01.

  	
   

  	
  Form and Dating

  	
   

  
	
  Section 2.02.

  	
   

  	
  Execution and Authentication

  	
   

  
	
  Section 2.03.

  	
   

  	
  Registrar and Paying Agent

  	
   

  
	
  Section 2.04.

  	
   

  	
  Paying Agent to Hold Money in Trust

  	
   

  
	
  Section 2.05.

  	
   

  	
  Holder Lists

  	
   

  
	
  Section 2.06.

  	
   

  	
  Transfer and Exchange

  	
   

  
	
  Section 2.07.

  	
   

  	
  Replacement Notes

  	
   

  
	
  Section 2.08.

  	
   

  	
  Outstanding Notes

  	
   

  
	
  Section 2.09.

  	
   

  	
  Treasury Notes

  	
   

  
	
  Section 2.10.

  	
   

  	
  Temporary Notes

  	
   

  
	
  Section 2.11.

  	
   

  	
  Cancellation

  	
   

  
	
  Section 2.12.

  	
   

  	
  Payment of Interest; Defaulted
  Interest.

  	
   

  
	
  Section 2.13.

  	
   

  	
  CUSIP or ISIN Numbers

  	
   

  
	
  Section 2.14.

  	
   

  	
  Liquidated Damages

  	
   

  
	
  Section 2.15.

  	
   

  	
  Issuance of Additional Notes

  	
   

  
	
  Section 2.16.

  	
   

  	
  Record Date

  	
   

  
	
  ARTICLE 3.

  	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
  Section 3.01.

  	
   

  	
  Notices to Trustee

  	
   

  
	
  Section 3.02.

  	
   

  	
  Selection of Notes to Be Redeemed

  	
   

  
	
  Section 3.03.

  	
   

  	
  Notice of Redemption

  	
   

  
	
  Section 3.04.

  	
   

  	
  Effect of Notice of Redemption

  	
   

  
	
  Section 3.05.

  	
   

  	
  Deposit of Redemption Price

  	
   

  
	
  Section 3.06.

  	
   

  	
  Notes Redeemed in Part

  	
   

  
	
  Section 3.07.

  	
   

  	
  Optional Redemption

  	
   

  
	
  Section 3.08.

  	
   

  	
  Mandatory Redemption

  	
   

  
	
  Section 3.09.

  	
   

  	
  Offer To Purchase.

  	
   

  
	
  ARTICLE 4.

  	
  COVENANTS

  	
   

  
	
  Section 4.01.

  	
   

  	
  Payment of Notes

  	
   

  
	
  Section 4.02.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  
	
  Section 4.04.

  	
   

  	
  Compliance Certificate

  	
   

  



 


i

















 


	
  Section 4.05.

  	
   

  	
  Taxes

  	
   

  
	
  Section 4.06.

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  
	
  Section 4.07.

  	
   

  	
  Corporate Existence

  	
   

  
	
  Section 4.08.

  	
   

  	
  Payments for Consent

  	
   

  
	
  Section 4.09.

  	
   

  	
  Incurrence of Indebtedness and
  Issuance of Disqualified Stock.

  	
   

  
	
  Section 4.10.

  	
   

  	
  Restricted Payments

  	
   

  
	
  Section 4.11.

  	
   

  	
  Liens

  	
   

  
	
  Section 4.12.

  	
   

  	
  Asset Sales

  	
   

  
	
  Section 4.13.

  	
   

  	
  Dividend and Other Payment
  Restrictions Affecting Subsidiaries

  	
   

  
	
  Section 4.14.

  	
   

  	
  Transactions with Affiliates

  	
   

  
	
  Section 4.15.

  	
   

  	
  No Senior Subordinated Debt

  	
   

  
	
  Section 4.16.

  	
   

  	
  Limitation on Issuance of Guarantees
  of Indebtedness.

  	
   

  
	
  Section 4.17.

  	
   

  	
  Designation of Restricted and
  Unrestricted Subsidiaries

  	
   

  
	
  Section 4.18.

  	
   

  	
  Repurchase at the Option of Holders
  Upon a Change of Control

  	
   

  
	
  Section 4.19.

  	
   

  	
  Additional Subsidiary Guarantees.

  	
   

  
	
  Section 4.20.

  	
   

  	
  Business Activities

  	
   

  
	
  ARTICLE 5.

  	
  SUCCESSORS

  	
   

  
	
  Section 5.01.

  	
   

  	
  Merger, Consolidation and Sale of
  Assets

  	
   

  
	
  Section 5.02.

  	
   

  	
  Successor Corporation Substituted

  	
   

  
	
  ARTICLE 6.

  	
  DEFAULTS AND REMEDIES

  	
   

  
	
  Section 6.01.

  	
   

  	
  Events of Default

  	
   

  
	
  Section 6.02.

  	
   

  	
  Acceleration

  	
   

  
	
  Section 6.03.

  	
   

  	
  Other Remedies

  	
   

  
	
  Section 6.04.

  	
   

  	
  Waiver of Defaults

  	
   

  
	
  Section 6.05.

  	
   

  	
  Control by Majority

  	
   

  
	
  Section 6.06.

  	
   

  	
  Limitation on Suits

  	
   

  
	
  Section 6.07.

  	
   

  	
  Rights of Holders to Receive Payment

  	
   

  
	
  Section 6.08.

  	
   

  	
  Collection Suit by Trustee

  	
   

  
	
  Section 6.09.

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  
	
  Section 6.10.

  	
   

  	
  Priorities

  	
   

  
	
  Section 6.11.

  	
   

  	
  Undertaking for Costs

  	
   

  
	
  ARTICLE 7.

  	
  TRUSTEE

  	
   

  
	
  Section 7.01.

  	
   

  	
  Duties of Trustee

  	
   

  
	
  Section 7.02.

  	
   

  	
  Rights of Trustee

  	
   

  
	
  Section 7.03.

  	
   

  	
  Individual Rights of Trustee

  	
   

  
	
  Section 7.04.

  	
   

  	
  Trustee’s Disclaimer

  	
   

  



 


ii

















 


	
  Section 7.05.

  	
   

  	
  Notice of Defaults

  	
   

  
	
  Section 7.06.

  	
   

  	
  Reports by Trustee to Holders

  	
   

  
	
  Section 7.07.

  	
   

  	
  Compensation and Indemnity

  	
   

  
	
  Section 7.08.

  	
   

  	
  Replacement of Trustee

  	
   

  
	
  Section 7.09.

  	
   

  	
  Successor Trustee by Merger, etc.

  	
   

  
	
  Section 7.10.

  	
   

  	
  Eligibility; Disqualification

  	
   

  
	
  Section 7.11.

  	
   

  	
  Preferential Collection of Claims
  Against Company

  	
   

  
	
  ARTICLE 8.

  	
  LEGAL DEFEASANCE AND COVENANT
  DEFEASANCE

  	
   

  
	
  Section 8.01.

  	
   

  	
  Option to Effect Legal Defeasance or
  Covenant Defeasance

  	
   

  
	
  Section 8.02.

  	
   

  	
  Legal Defeasance and Discharge

  	
   

  
	
  Section 8.03.

  	
   

  	
  Covenant Defeasance

  	
   

  
	
  Section 8.04.

  	
   

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  
	
  Section 8.05.

  	
   

  	
  Deposited Cash and U.S. Government
  Securities to be Held in Trust; Other Miscellaneous Provisions

  	
   

  
	
  Section 8.06.

  	
   

  	
  Repayment to Company

  	
   

  
	
  Section 8.07.

  	
   

  	
  Reinstatement

  	
   

  
	
  ARTICLE 9.

  	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
  Section 9.01.

  	
   

  	
  Without Consent of Holders of Notes

  	
   

  
	
  Section 9.02.

  	
   

  	
  With Consent of Holders of Notes

  	
   

  
	
  Section 9.03.

  	
   

  	
  Compliance with Trust Indenture Act

  	
   

  
	
  Section 9.04.

  	
   

  	
  Revocation and Effect of Consents

  	
   

  
	
  Section 9.05.

  	
   

  	
  Notation on or Exchange of Notes

  	
   

  
	
  Section 9.06.

  	
   

  	
  Trustee to Sign Amendments, etc.

  	
   

  
	
  ARTICLE 10.

  	
  GUARANTEES

  	
   

  
	
  Section 10.01.

  	
   

  	
  Subsidiary Guarantee

  	
   

  
	
  Section 10.02.

  	
   

  	
  Limitation on Subsidiary Guarantor
  Liability

  	
   

  
	
  Section 10.03.

  	
   

  	
  Execution and Delivery of Subsidiary
  Guarantee

  	
   

  
	
  Section 10.04.

  	
   

  	
  Subsidiary Guarantors
  May Consolidate, etc., on Certain Terms

  	
   

  
	
  Section 10.05.

  	
   

  	
  Releases Following Merger,
  Consolidation or Sale of Assets, Etc.

  	
   

  
	
  Section 10.06.

  	
   

  	
  Subordination of Subsidiary
  Guarantee.

  	
   

  
	
  ARTICLE 11.

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
  Section 11.01.

  	
   

  	
  Satisfaction and Discharge

  	
   

  
	
  Section 11.02.

  	
   

  	
  Deposited Cash and U.S. Government
  Securities to be Held in Trust; Other Miscellaneous Provisions

  	
   

  
	
  Section 11.03.

  	
   

  	
  Repayment to Company

  	
   

  
	
  ARTICLE 12.

  	
  SUBORDINATION

  	
   

  
	
  Section 12.01.

  	
   

  	
  Agreement to Subordinate

  	
   

  



 


iii

















 


	
  Section 12.02.

  	
   

  	
  Liquidation, Dissolution, Bankruptcy

  	
   

  
	
  Section 12.03.

  	
   

  	
  Default on Senior Debt

  	
   

  
	
  Section 12.04.

  	
   

  	
  Acceleration of Payment of Notes.

  	
   

  
	
  Section 12.05.

  	
   

  	
  When Distribution Must Be Paid Over.

  	
   

  
	
  Section 12.06.

  	
   

  	
  Subrogation

  	
   

  
	
  Section 12.07.

  	
   

  	
  Relative Rights

  	
   

  
	
  Section 12.08.

  	
   

  	
  Subordination May Not Be
  Impaired by Company

  	
   

  
	
  Section 12.09.

  	
   

  	
  Rights of Trustee and Paying Agent

  	
   

  
	
  Section 12.10.

  	
   

  	
  Distribution or Notice to
  Representative

  	
   

  
	
  Section 12.11.

  	
   

  	
  Article 12 Not to Prevent
  Events of Default or Limit Right to Accelerate

  	
   

  
	
  Section 12.12.

  	
   

  	
  Trust Moneys Not Subordinated

  	
   

  
	
  Section 12.13.

  	
   

  	
  Trustee Entitled to Rely

  	
   

  
	
  Section 12.14.

  	
   

  	
  Trustee to Effectuate Subordination

  	
   

  
	
  Section 12.15.

  	
   

  	
  Trustee Not Fiduciary for Holders of
  Senior Debt

  	
   

  
	
  Section 12.16.

  	
   

  	
  Reliance by Holders of Senior Debt
  on Subordination Provisions

  	
   

  
	
  ARTICLE 13.

  	
  MISCELLANEOUS

  	
   

  
	
  Section 13.01.

  	
   

  	
  Trust Indenture Act Controls

  	
   

  
	
  Section 13.02.

  	
   

  	
  Notices

  	
   

  
	
  Section 13.03.

  	
   

  	
  Communication by Holders of Notes
  with Other Holders of Notes

  	
   

  
	
  Section 13.04.

  	
   

  	
  Certificate and Opinion as to
  Conditions Precedent

  	
   

  
	
  Section 13.05.

  	
   

  	
  Statements Required in Certificate
  or Opinion

  	
   

  
	
  Section 13.06.

  	
   

  	
  Rules by Trustee and Agents

  	
   

  
	
  Section 13.07.

  	
   

  	
  No Personal Liability of Directors,
  Officers, Employees and Stockholders

  	
   

  
	
  Section 13.08.

  	
   

  	
  Governing Law

  	
   

  
	
  Section 13.09.

  	
   

  	
  No Adverse Interpretation of Other
  Agreements

  	
   

  
	
  Section 13.10.

  	
   

  	
  Successors

  	
   

  
	
  Section 13.11.

  	
   

  	
  Severability

  	
   

  
	
  Section 13.12.

  	
   

  	
  Counterpart Originals

  	
   

  
	
  Section 13.13.

  	
   

  	
  Table of Contents, Headings, etc.

  	
   

  
	
  Section 13.14.

  	
   

  	
  Qualification of this Indenture.

  	
   

  



 


iv

















 


CROSS-REFERENCE TABLE


 


	
  TIA Section Reference

  	
   

  	
  Indenture 

  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.08, 7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06, 7.07

  
	
  (c)

  	
   

  	
  7.06, 11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03, 4.04,
  11.02

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.04

  
	
  (c)(2)

  	
   

  	
  12.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  12.05

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05, 11.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  11.01

  



 


N.A. means Not
Applicable.


 


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