Exhibit 4.1




 





 


KEY ENERGY SERVICES, INC.


 


AND


 


THE GUARANTORS NAMED HEREIN


 


8 3¤8% SENIOR NOTES DUE 2014


 


INDENTURE


 


DATED AS OF November 29, 2007


 


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


 


AS TRUSTEE




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.2

  	
   

  	
  Other Definitions

  	
   

  	
  29

  
	
  Section 1.3

  	
   

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  29

  
	
  Section 1.4

  	
   

  	
  Rules of Construction

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II THE SECURITIES

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1

  	
   

  	
  Form and Dating

  	
   

  	
  30

  
	
  Section 2.2

  	
   

  	
  Execution and Authentication

  	
   

  	
  31

  
	
  Section 2.3

  	
   

  	
  Registrar and Paying Agent

  	
   

  	
  32

  
	
  Section 2.4

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  33

  
	
  Section 2.5

  	
   

  	
  Holder Lists

  	
   

  	
  33

  
	
  Section 2.6

  	
   

  	
  Transfer and Exchange

  	
   

  	
  33

  
	
  Section 2.7

  	
   

  	
  Replacement Securities

  	
   

  	
  47

  
	
  Section 2.8

  	
   

  	
  Outstanding Securities

  	
   

  	
  47

  
	
  Section 2.9

  	
   

  	
  Temporary Securities

  	
   

  	
  47

  
	
  Section 2.10

  	
   

  	
  Cancellation

  	
   

  	
  48

  
	
  Section 2.11

  	
   

  	
  Defaulted Interest

  	
   

  	
  48

  
	
  Section 2.12

  	
   

  	
  CUSIP Numbers

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III REDEMPTION

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  Notices to Trustee

  	
   

  	
  49

  
	
  Section 3.2

  	
   

  	
  Selection of Securities to Be Redeemed

  	
   

  	
  49

  
	
  Section 3.3

  	
   

  	
  Notice of Redemption

  	
   

  	
  49

  
	
  Section 3.4

  	
   

  	
  Effect of Notice of Redemption

  	
   

  	
  50

  
	
  Section 3.5

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  51

  
	
  Section 3.6

  	
   

  	
  Securities Redeemed in Part

  	
   

  	
  51

  
	
  Section 3.7

  	
   

  	
  Optional Redemption

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Payment of Securities

  	
   

  	
  52

  
	
  Section 4.2

  	
   

  	
  Reports

  	
   

  	
  53

  
	
  Section 4.3

  	
   

  	
  Incurrence of Indebtedness and Issuance of Disqualified Stock

  	
   

  	
  54

  
	
  Section 4.4

  	
   

  	
  Restricted Payments

  	
   

  	
  57

  
	
  Section 4.5

  	
   

  	
  Liens

  	
   

  	
  61

  
	
  Section 4.6

  	
   

  	
  Dividend and Other Payment Restrictions Affecting Subsidiaries

  	
   

  	
  62

  
	
  Section 4.7

  	
   

  	
  Asset Sales

  	
   

  	
  64

  
	
  Section 4.8

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  67

  
	
  Section 4.9

  	
   

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
   

  	
  69

  
	
  Section 4.10

  	
   

  	
  Additional Subsidiary Guarantees

  	
   

  	
  69

  



 


i

















 


	
  Section 4.11

  	
   

  	
  [Intentionally Omitted.]

  	
   

  	
  70

  
	
  Section 4.12

  	
   

  	
  Change of Control

  	
   

  	
  70

  
	
  Section 4.13

  	
   

  	
  Maintenance of Office or Agency for Registration of Transfer,
  Exchange and Payment of Securities

  	
   

  	
  71

  
	
  Section 4.14

  	
   

  	
  [Intentionally Omitted.]

  	
   

  	
  72

  
	
  Section 4.15

  	
   

  	
  Provision as to Paying Agent

  	
   

  	
  72

  
	
  Section 4.16

  	
   

  	
  Maintenance of Corporate Existence

  	
   

  	
  73

  
	
  Section 4.17

  	
   

  	
  Compliance Certificate

  	
   

  	
  73

  
	
  Section 4.18

  	
   

  	
  Taxes

  	
   

  	
  73

  
	
  Section 4.19

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  	
  73

  
	
  Section 4.20

  	
   

  	
  Termination of Certain Covenants

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V SUCCESSOR COMPANY

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  Merger, Consolidation or Sale of Assets

  	
   

  	
  74

  
	
  Section 5.2

  	
   

  	
  Successor Substituted

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI DEFAULTS AND REMEDIES

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1

  	
   

  	
  Events of Default

  	
   

  	
  75

  
	
  Section 6.2

  	
   

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  77

  
	
  Section 6.3

  	
   

  	
  Other Remedies

  	
   

  	
  78

  
	
  Section 6.4

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  78

  
	
  Section 6.5

  	
   

  	
  Control by Majority

  	
   

  	
  78

  
	
  Section 6.6

  	
   

  	
  Limitation on Suits

  	
   

  	
  79

  
	
  Section 6.7

  	
   

  	
  Rights of Holders to Receive Payment

  	
   

  	
  79

  
	
  Section 6.8

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  79

  
	
  Section 6.9

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  80

  
	
  Section 6.10

  	
   

  	
  Priorities

  	
   

  	
  80

  
	
  Section 6.11

  	
   

  	
  Undertaking for Costs

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII TRUSTEE

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Duties of Trustee

  	
   

  	
  81

  
	
  Section 7.2

  	
   

  	
  Rights of Trustee

  	
   

  	
  82

  
	
  Section 7.3

  	
   

  	
  Individual Rights of Trustee

  	
   

  	
  82

  
	
  Section 7.4

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  83

  
	
  Section 7.5

  	
   

  	
  Notice of Defaults

  	
   

  	
  83

  
	
  Section 7.6

  	
   

  	
  Reports by Trustee to Holders

  	
   

  	
  83

  
	
  Section 7.7

  	
   

  	
  Compensation and Indemnity

  	
   

  	
  83

  
	
  Section 7.8

  	
   

  	
  Replacement of Trustee

  	
   

  	
  84

  
	
  Section 7.9

  	
   

  	
  Successor Trustee by Merger

  	
   

  	
  85

  
	
  Section 7.10

  	
   

  	
  Eligibility; Disqualification

  	
   

  	
  85

  
	
  Section 7.11

  	
   

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  86

  



 


ii

















 


	
  ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Discharge of Liability on Securities; Defeasance

  	
   

  	
  86

  
	
  Section 8.2

  	
   

  	
  Conditions to Defeasance

  	
   

  	
  87

  
	
  Section 8.3

  	
   

  	
  Delivery and Application of Trust Money

  	
   

  	
  89

  
	
  Section 8.4

  	
   

  	
  Repayment to Company

  	
   

  	
  89

  
	
  Section 8.5

  	
   

  	
  Indemnity for Government Securities

  	
   

  	
  89

  
	
  Section 8.6

  	
   

  	
  Reinstatement

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX AMENDMENTS

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1

  	
   

  	
  Without Consent of Holders

  	
   

  	
  90

  
	
  Section 9.2

  	
   

  	
  With Consent of Holders

  	
   

  	
  90

  
	
  Section 9.3

  	
   

  	
  Compliance with Trust Indenture Act

  	
   

  	
  92

  
	
  Section 9.4

  	
   

  	
  Revocation and Effect of Consents and Waivers

  	
   

  	
  92

  
	
  Section 9.5

  	
   

  	
  Notation on or Exchange of Securities

  	
   

  	
  92

  
	
  Section 9.6

  	
   

  	
  Trustee to Sign Amendments

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X SUBSIDIARY GUARANTEES

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1

  	
   

  	
  Subsidiary Guarantees

  	
   

  	
  93

  
	
  Section 10.2

  	
   

  	
  Limitation on Liability

  	
   

  	
  94

  
	
  Section 10.3

  	
   

  	
  Execution and Delivery of Subsidiary Guarantee

  	
   

  	
  95

  
	
  Section 10.4

  	
   

  	
  Successors and Assigns

  	
   

  	
  95

  
	
  Section 10.5

  	
   

  	
  No Waiver

  	
   

  	
  95

  
	
  Section 10.6

  	
   

  	
  Right of Contribution

  	
   

  	
  95

  
	
  Section 10.7

  	
   

  	
  No Subrogation

  	
   

  	
  96

  
	
  Section 10.8

  	
   

  	
  Modification

  	
   

  	
  96

  
	
  Section 10.9

  	
   

  	
  Merger, Consolidation or Sale of Assets of a Guarantor; Release of a
  Guarantor

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI MISCELLANEOUS

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.1

  	
   

  	
  Trust Indenture Act Controls

  	
   

  	
  98

  
	
  Section 11.2

  	
   

  	
  Notices

  	
   

  	
  98

  
	
  Section 11.3

  	
   

  	
  Communication by Holders with Other Holders

  	
   

  	
  99

  
	
  Section 11.4

  	
   

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  99

  
	
  Section 11.5

  	
   

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  99

  
	
  Section 11.6

  	
   

  	
  When Securities Disregarded

  	
   

  	
  100

  
	
  Section 11.7

  	
   

  	
  Legal Holidays

  	
   

  	
  100

  
	
  Section 11.8

  	
   

  	
  Governing Law

  	
   

  	
  100

  
	
  Section 11.9

  	
   

  	
  No Personal Liability of Directors, Officers, Employees and Others

  	
   

  	
  100

  
	
  Section 11.10

  	
   

  	
  Successors

  	
   

  	
  100

  
	
  Section 11.11

  	
   

  	
  Multiple Originals; Counterparts

  	
   

  	
  100

  
	
  Section 11.12

  	
   

  	
  Severability

  	
   

  	
  101

  
	
  Section 11.13

  	
   

  	
  Table of Contents; Headings

  	
   

  	
  101

  
	
  Section 11.14

  	
   

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  101

  



 


iii

















 


EXHIBITS


 


Exhibit A – Form of
Security


Exhibit B – Form of
Certificate of Transfer


Exhibit C – Form of
Certificate of Exchange


Exhibit D – Form of
Notation of Subsidiary Guarantee


Exhibit E – Form of
Supplemental Indenture to be Delivered by Future Guarantors


 


iv

















 


CROSS-REFERENCE TABLE


 


	
  Trust
  Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
  310

  	
  (a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.8;
  7.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
   

  	
  2.5

  
	
   

  	
  (b)

  	
   

  	
   

  	
  11.3

  
	
   

  	
  (c)

  	
   

  	
   

  	
  11.3

  
	
  313

  	
  (a)

  	
   

  	
   

  	
  7.6

  
	
   

  	
  (b)(1)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
   

  	
  7.6

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.6, 11.2

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.6

  
	
  314

  	
  (a)

  	
   

  	
   

  	
  4.2; 4.17; 11.2

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  11.4

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  11.4

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
   

  	
  11.5

  
	
   

  	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
   

  	
  7.1

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.5; 11.2

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.1

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.1

  
	
   

  	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316

  	
  (a)(last sentence)

  	
   

  	
   

  	
  11.6

  
	
   

  	
  (a)(1)(A)

  	
   

  	
   

  	
  6.5

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  6.4

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  6.7

  
	
  317

  	
  (a)(1)

  	
   

  	
   

  	
  6.8

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  6.9

  
	
   

  	
  (b)

  	
   

  	
   

  	
  4.15

  
	
  318

  	
  (a)

  	
   

  	
   

  	
  11.1

  



 


“N.A.” means not applicable.


 


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


 


v

















 


THIS INDENTURE, dated as of November 29, 2007, is among Key Energy
Services, Inc., a Maryland corporation (the “Company”), each of the Guarantors
(as defined herein) and The Bank of New York Trust Company, N.A., a national
banking association, as trustee (the “Trustee”).


 


Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company’s 8 3¤8%
Senior Notes due 2014 issued on the date hereof (the “Initial Securities”), the
Holders of any Additional Securities (as defined herein) issued hereafter and,
if and when issued in exchange for the Initial Securities or any Additional
Securities as provided in a Registration Rights Agreement (as hereinafter
defined), the Company’s Exchange Securities (as hereinafter defined):


 


ARTICLE I


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1                                      Definitions


 


“144A Global Security”
means a Global Security substantially in the form of Exhibit A hereto
bearing the Global Security Legend and the Private Placement Legend, that has
the “Schedule of Exchanges of Interests in the Global Security” attached
thereto, and that is deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Securities initially sold in reliance on
Rule 144A.


 


“Acquired Debt” means,
with respect to any specified Person:


 


(1)                                 Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person; and


 


(2)                                 Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person, but
excluding, in any event, Indebtedness that is extinguished, retired or repaid
in connection with such Person merging with or becoming a Restricted Subsidiary
of such specified Person.


 


“Additional Interest”
means, with respect to any Securities, the additional interest thereon, if any,
required by the Registration Rights Agreement applicable to such Securities.


 


“Additional Securities” means
any Securities (other than the Initial Securities or the Exchange Securities)
issued under this Indenture in accordance with Sections 2.2 and 4.3
hereof, as part of the same series as the Initial Securities to the extent
outstanding and any Exchange Securities then outstanding.


 

















 


“Adjusted Treasury Rate”
means, with respect to any Redemption Date, (i) the yield, under the heading
which represents the average for the immediately preceding week, appearing in
the most recently published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of Governors of
the Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities” for the maturity corresponding to the
Comparable Treasury Issue with respect to the Securities called for redemption
(if no maturity is within three months before or after December 1, 2011, yields
for the two published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per year equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
Redemption Date, in each case calculated on the third business day immediately
preceding the Redemption Date, plus, in the case of each of clause (i) and
(ii), 0.50%.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such 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, for purposes of Section 4.8 and the use of the term “Affiliates”
thereunder, beneficial ownership of 10% or more of the voting securities of a
specified Person shall be deemed to be control by the owner thereof.


 


“Applicable Premium”
means, at any Redemption Date, the excess of (A) the present value at such
Redemption Date of (1) the Redemption Price of the Securities on December 1,
2011 (such redemption price being set forth in Section 3.7(a)) plus (2)
all required remaining scheduled interest payments due on the Securities
through December 1, 2011 (excluding accrued and unpaid interest), computed
using a discount rate equal to the Adjusted Treasury Rate, over (B) the
principal amount of the Securities on such Redemption Date.


 


“Agent” means any
Registrar or Paying Agent.


 


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


 


“Asset Sale” means:


 


(1)                                 the
sale, lease, conveyance or other disposition of any assets or rights
(including, without limitation, by way of a Sale/Leaseback Transaction) other
than in the ordinary course of business, or any damage or loss of property
resulting in the


 


2

















 


payment of property insurance or condemnation proceeds to the Company
or any Restricted Subsidiary (provided
that the sale, lease, conveyance or other disposition of all or substantially
all of the properties or assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by Sections 4.12 and 5.1
and not by the provisions of Section 4.7; and


 


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


 


in the case of either clause (1) or (2), whether in a single
transaction or a series of related transactions, (a) that have a Fair Market
Value in excess of $10 million or (b) for Net Proceeds in excess of $10
million; provided that the
following will not be deemed to be Asset Sales:


 


(1)                                 (x)
any sale, exchange, transfer or other disposition of inventory in the ordinary
course of business or (y) any sale, exchange, transfer or other disposition of
accounts receivable in connection with any Credit Facility permitted to be
incurred hereunder;


 


(2)                                 any
disposition of assets in trade or exchange for assets of comparable Fair Market
Value used or usable in any Permitted Business (including, without limitation,
the trade or exchange for a controlling interest in another business or all or
substantially all of the assets or operating line of a business, in each case,
engaged in a Permitted Business or for other non-current assets to be used in a
Permitted Business, including, without limitation, assets or Investments of the
nature or type described in clause (13) of the definition of “Permitted
Investments”); provided that (x)
if the Fair Market Value of the assets so disposed of, in a single transaction
or in a series of related transactions, is in excess of $35 million, the
Company shall obtain an opinion or report from an Independent Financial Advisor
confirming that the assets received by the Company and the Restricted
Subsidiaries in such trade or exchange have a Fair Market Value of at least the
Fair Market Value of the assets so disposed and (y) any cash or Cash
Equivalents received by the Company or a Restricted Subsidiary in connection
with such trade or exchange (net of any transaction costs of the type deducted
under the definition of “Net Proceeds”) shall be treated as Net Proceeds of an
Asset Sale and shall be applied in the manner set forth in Section 4.7;


 


(3)                                 a
transfer of assets by the Company to a Restricted Subsidiary of the Company or
by a Restricted Subsidiary of the Company to the Company or to a Restricted
Subsidiary of the Company;


 


(4)                                 an
issuance or sale of Equity Interests by a Restricted Subsidiary of the Company
to the Company or to another Restricted Subsidiary of the Company;


 


(5)                                 (A)
a Permitted Investment or (B) a Restricted Payment that is permitted by Section 4.4;


 


3

















 


(6)                                 the
trade, sale or exchange of Cash Equivalents;


 


(7)                                 the
sale, exchange or other disposition of obsolete assets not integral to any
Permitted Business;


 


(8)                                 the
abandonment or relinquishment of assets in the ordinary course of business,
including without limitation taking rigs out of service;


 


(9)                                 any
lease of assets entered into in the ordinary course of business and with
respect to which the Company or any Restricted Subsidiary of the Company is the
lessor and the lessee has no option to purchase, such assets for less than fair
market value at any time the right to acquire such asset occurs;


 


(10)                            the disposition of assets
received in settlement of debts accrued in the ordinary course of business;


 


(11)                           the
creation or perfection of a Lien on any assets (or any income or profit
therefrom) of the Company or any of its Restricted Subsidiaries that is not
prohibited by any covenant of this Indenture;


 


(12)                           the
surrender or waiver in the ordinary course of business of contract rights or
the settlement, release or surrender of contractual, non-contractual or other
claims of any kind; and


 


(13)                           the
grant in the ordinary course of business of any non-exclusive license of
patents, trademarks, registrations therefor and other similar intellectual
property.


 


“Attributable  Amount” means, with respect to any
Sale/Leaseback Transaction, as at the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments (other than amounts
required to be paid on account of property taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
that do not constitute payments for property rights) during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any period
for which such lease has been extended); provided,
however, that the Attributable
Amount of each of the following Sale/Leaseback Transactions shall, in each
case, be zero:


 


(1)                                 a
Sale/Leaseback Transaction in which the lease is for a period, including
renewal rights, not in excess of three years;


 


(2)                                 a
Sale/Leaseback Transaction with respect to any asset that occurs within 270
days of the acquisition or construction of, or the completion of a material
improvement to, such asset;


 


(3)                                 a
Sale/Leaseback Transaction in which the lease secures or relates to industrial
revenue or pollution control bonds;


 


4

















 


(4)                                  a Sale/Leaseback
Transaction in which the transaction is between or among the Company and one or
more Restricted Subsidiaries or between or among Restricted Subsidiaries; or


 


(5)                                  a Sale/Leaseback
Transaction pursuant to which the Company, within 270 days after the completion
of the Sale/Leaseback Transaction, applies toward the retirement of its
Indebtedness or the Indebtedness of a Restricted Subsidiary, or to the purchase
of other property, the greater of the net proceeds from the Sale/Leaseback
Transaction or the Fair Market Value of the assets sold in such Transaction; provided, however,
that the amount that must be applied to the retirement of Indebtedness shall be
reduced by:


 


(a)                                  the principal amount
of any debentures, notes or debt securities (including the Securities) of the
Company or a Restricted Subsidiary surrendered to the applicable trustee or
agent for retirement and cancellation within 270 days of the completion of the
Sale/Leaseback Transaction;


 


(b)                                 the principal amount
of any Indebtedness not included in clause (5)(a) of this definition to the
extent such amount of Indebtedness is voluntarily retired by the Company or a
Restricted Subsidiary within 270 days of the completion of the Sale/Leaseback
Transaction; and


 


(c)                                  all fees and expenses
associated with the Sale/Leaseback Transaction.


 


“Bankruptcy Law” means
Title 11, United States Code, or any similar U.S. federal or state law for the
relief of debtors.


 


“Board of Directors”
means the Board of Directors of the Company or any committee thereof duly
authorized to act on behalf of such Board.


 


“Business Day” means any
day other than a Saturday, Sunday or other day on which commercial banks in New
York, New York or Houston, Texas, are authorized or required by law to close.


 


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


 


“Capital Stock” means (1)
in the case of a corporation, corporate stock; (2) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock; (3) in the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and (4) 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.


 


5

















 


“Cash Equivalents” means:


 


(1)                                  United States
dollars;


 


(2)                                  securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof having maturities of not more than one year
from the date of acquisition;


 


(3)                                  certificates of
deposit and Eurodollar time deposits with maturities of not more than one year
from the date of acquisition, bankers’ acceptances with maturities of not more
than one year from the date of acquisition and overnight bank deposits, in each
case, with any domestic commercial bank having capital and surplus in excess of
$500 million and a Thompson BankWatch Rating of “B” or better;


 


(4)                                  repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;


 


(5)                                  commercial paper
having the highest rating obtainable from Moody’s or S&P with maturities of
not more than one year from the date of acquisition; and


 


(6)                                  money market funds 95%
of the assets of which constitute Cash Equivalent of the types described in
clauses (1) – (5) above.


 


“Change of Control” means
the occurrence of one or more of the following events:


 


(1)                                  any sale, lease,
transfer, conveyance or other disposition (in one transaction or a series of
related transactions) of all or substantially all of the properties or assets
of the Company and its Restricted Subsidiaries taken as a whole to any Person
or group of related Persons for purposes of Section 13(d) of the Exchange Act
(a “Group”) together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture) unless immediately following
such sale, lease, transfer, conveyance or other disposition in compliance with
this Indenture such properties or assets are owned, directly or indirectly, by
(A) the Company or a Subsidiary of the Company or (B) a Person controlled by
the Company or a Subsidiary of the Company;


 


(2)                                  the approval by the
holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company;


 


(3)                                  the acquisition, in
one or more transactions, of beneficial ownership (within the meaning of Rule
13d 3 under the Exchange Act) of Voting Securities of the Company by any Person
or Group that, as a result of such acquisition, either (A) beneficially owns
(within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, at least 50% of the Company’s then outstanding Voting


 


6

















 


Securities or (B) otherwise has the ability to elect, directly or
indirectly, a majority of the members of the Board of Directors, including,
without limitation, by the acquisition of revocable proxies for the election of
directors; or


 


(4)                                 during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (together with any new directors
whose election by such Board of Directors or whose nomination for election by
the shareholders (or members, as applicable) of the Company was approved by a
vote of a majority of the directors of the Company then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office.


 


Notwithstanding the foregoing, a Change of Control shall not be deemed
to occur upon the consummation of any actions undertaken by the Company or any
of its Restricted Subsidiaries solely for the purpose of changing the legal
structure of the Company or such Restricted Subsidiary.


 


“Clearstream” means
Clearstream Banking, société anonyme, or any successor securities clearance
agency.


 


“Code” means the U.S.
Internal Revenue Code of 1986 and any successor statute thereto, in each case
as amended from time to time.


 


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


 


“Commodity Hedging Agreements”
means agreements or arrangements designed to protect such Person against
fluctuations in the price of (1) crude oil, natural gas or other hydrocarbons
or (2) any other commodity, in each case, in connection with the conduct of its
business and not for speculative purposes.


 


“Commodity Hedging Obligations”
means, with respect to any Person, the net payment Obligations of such Person
under Commodity Hedging Agreements.


 


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


 


“Comparable Treasury Issue”
means the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the remaining term from the Redemption Date to
December 1, 2011, that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of a maturity most nearly equal to December 1, 2011.


 


7

















 


“Comparable Treasury Price”
means, with respect to any Redemption Date, if clause (ii) of the Adjusted
Treasury Rate is applicable, the average of three, or such lesser number as is
obtained by the Trustee, Reference Treasury Dealer Quotations for the
Redemption Date.


 


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


 


(1)                                  an amount equal to
any extraordinary, unusual or nonrecurring expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of
Consolidated Net Income for such period, losses on sales of assets outside of
the ordinary course of business) plus any net loss realized in connection with
an Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus


 


(2)                                  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 included in
computing such Consolidated Net Income, plus


 


(3)                                  consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued and whether or not capitalized (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 Hedging Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income, plus


 


(4)                                  unrealized non-cash
losses resulting from foreign currency balance sheet adjustments required by
GAAP to the extent such losses were deducted in computing such Consolidated Net
Income, plus


 


(5)                                  depreciation and 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 charges of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation and amortization and other non-cash
charges were deducted in computing such Consolidated Net Income, minus


 


(6)                                  non-cash items
increasing such Consolidated Net Income for such period,


 


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


 


Notwithstanding the preceding, the provision for taxes on the income or
profits of, and the depreciation and amortization and other non-cash charges
of, a Restricted Subsidiary of the specified Person shall be added to Consolidated
Net Income to compute Consolidated Cash Flow


 


8

















 


only to the extent (and in same
proportion) that the Net Income of such Restricted Subsidiary was included in
calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to such Person by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or indirect
restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.


 


“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


 


(1)                                 the
Net Income (but not loss) 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 a Restricted Subsidiary;


 


(2)                                 the
Net Income of any Restricted Subsidiary that is not a Guarantor 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 judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders;


 


(3)                                 the
cumulative effect of a change in accounting principles shall be excluded;


 


(4)                                 any
writedown of non-current assets shall be excluded, as if such writedown had not
occurred;


 


(5)                                 to
the extent deducted in the calculation of Net Income, any charges associated
with any premium or penalty paid, write-offs of deferred financing costs or
other financial recapitalization charges in connection with redeeming or
retiring any Indebtedness prior to its Stated Maturity will be added back to
arrive at Consolidated Net Income; and


 


(6)                                 any
unrealized non-cash gains or losses in respect of hedges and other derivatives
(including those under FAS 133) shall be excluded.


 


“Consolidated Net Tangible Assets”
means, as of any date of determination, the consolidated total assets of the
Company and its Restricted Subsidiaries determined in accordance with GAAP as
of the end of the Company’s most recent fiscal quarter for which internal
financial statements are available, less the sum of (1) all current liabilities
and current liability items, and (2) all goodwill, trade names, trademarks,
patents, organization expense, unamortized debt discount and expense and other
similar intangibles properly classified as intangibles in accordance with GAAP.


 


9

















 


“Consolidated Net Worth”
means, as of any date of determination, the total of the amounts shown on a
Person’s consolidated balance sheet determined in accordance with GAAP, as of
the end of such Person’s most recent fiscal quarter for which internal
financial statements are available prior to the taking of any action for the
purpose of which the determination is being made, as the sum of (1) the par or
stated value of all of such Person’s outstanding Capital Stock, (2) paid-in
capital or capital surplus relating to such Capital Stock and (3) any retained
earnings or earned surplus less (A) any accumulated deficit and (B) any amounts
attributable to Disqualified Stock.


 


“Corporate Trust Office of the
Trustee” means the office of the Trustee at which at any time its
corporate trust business in relation to this Indenture and the Securities shall
be administered, which office at the date hereof is located at 601 Travis
Street, 18th Floor, Houston, Texas 
77002.


 


“Credit Facilities”
means, with respect to the Company or any of its Restricted Subsidiaries, one
or more debt facilities (including, without limitation, the Identified Senior
Credit Facilities), commercial paper facilities or Debt Issuances with banks,
investment banks, insurance companies, mutual funds, hedge funds, other
institutional lenders, institutional investors or any of the foregoing
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders, other financiers or
to special purpose entities formed to borrow from (or sell such receivables to)
such lenders or other financiers against such receivables), letters of credit,
bankers’ acceptances, other borrowings or Debt Issuances, in each case, as
amended, restated, modified, renewed, extended, refunded, replaced or
refinanced (in each case, without limitation as to amount), in whole or in
part, from time to time (including through one or more Debt Issuances) and any
agreements and related documents governing Indebtedness or Obligations incurred
to refinance amounts then outstanding or permitted to be outstanding, whether
or not with the original administrative agent, lenders, investment banks,
insurance companies, mutual funds, other institutional lenders, institutional
investors or any of the foregoing and whether provided under the original
agreement, indenture or other documentation relating thereto.


 


“Currency Hedging Agreements”
means, at any time as to any Person, any foreign currency exchange agreement,
option or futures contract or other similar agreement or arrangement entered
into in the ordinary course of business and designed to protect against or
manage such Person’s exposure to fluctuations in foreign currency exchange
rates.


 


“Currency Hedging Obligations”
means, with respect to any Person, the net payment Obligations of such Person
under Currency Hedging Agreements.


 


“Custodian” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.


 


“Debt Issuances” means,
with respect to the Company or any Restricted Subsidiary, one or more issuances
after the Issue Date of Indebtedness evidenced by notes, debentures, bonds or
other similar securities or instruments.


 


10

















 


“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 Security”
means a certificated Security registered in the name of the Holder thereof and
issued in accordance with Section 2.6 hereof, substantially in the form
of Exhibit A hereto except that such Security shall not bear the Global
Security Legend and shall not have the “Schedule of Exchanges of Interests in
the Global Security” attached thereto.


 


“De Minimis Amount” means
a principal amount of Indebtedness that does not exceed $5 million.


 


“Depositary” means The
Depository Trust Company, until a successor shall have been appointed and
become such Depositary pursuant to this Indenture and thereafter shall mean its
successor.


 


“Designated Proceeds”
means the amount of net cash proceeds received by the Company from each
issuance or sale since the Issue Date of mandatorily convertible preferred
stock of the Company (other than Disqualified Stock), that at the time of such
issuance was designated by the Company as Designated Proceeds pursuant to an
officers’ certificate delivered to the trustee; provided, however,
that if the mandatorily convertible preferred stock providing such Designated
Proceeds is thereafter converted into common stock of the Company, that portion
of the Designated Proceeds that has not been paid as dividends pursuant to
clause (10) of Section 4.4(b) will no longer be considered to be
Designated Proceeds.


 


“Disqualified Stock”
means, with respect to any Person, any Capital Stock to the extent that by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) or upon the happening of any event, it matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which the Securities
mature, except such Capital Stock that is solely redeemable with, or solely
exchangeable for, any Capital Stock of such Person that is not Disqualified
Stock.


 


Notwithstanding the preceding paragraph, any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company or any of its Restricted Subsidiaries to repurchase
Capital Stock upon the occurrence of a change of control or an asset sale shall
not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company or such Restricted Subsidiary may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.4.


 


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


 


“Equity Interests” mean
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.


 


11

















 


“Equity Offering” means
any public or private sale of Capital Stock of the Company or options, warrants
or rights with respect to its Capital Stock (other than sales made to any
Restricted Subsidiary of the Company and sales of Disqualified Stock) made for
cash after the Issue Date.


 


“Euroclear” means
Euroclear Bank S.A./N.V., or any successor securities clearance agency.


 


“Exchange Act” means the
Securities Exchange Act of 1934 and any successor statute thereto, in each case
as amended from time to time.


 


“Exchange Offer Registration Statement”
means the registration statement of the Company relating to any offer to
exchange Exchange Securities for either Initial Securities or Additional
Securities pursuant to a Registration Rights Agreement.


 


“Exchange Securities”
means Securities issued in an exchange offer for Initial Securities or
Additional Securities in accordance with a Registration Rights Agreement.


 


“Exchanging Dealer” means
a broker-dealer that exchanges Securities in a Registered Exchange Offer that
it has acquired for its own account as a result of market making activities or
other trading activities.


 


“Existing Indebtedness”
means the aggregate Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the Issue Date.


 


“Fair Market Value”
means, with respect to consideration received or to be received, or given or to
be given, pursuant to any transaction by the Company or any Restricted Subsidiary,
the fair market value of such consideration as determined (unless otherwise
specified in this Indenture) in good faith by the Board of Directors of the
Company, whose determination shall be conclusive and evidenced by a resolution
of such Board of Directors set forth in an Officers’ Certificate delivered to
the Trustee.


 


“Financial Hedging Agreements”
means (1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (2) other agreements or arrangements designed
to protect such Person against fluctuations in interest rates or currency
exchange rates in connection with the conduct of its business and not for
speculative purposes.


 


“Financial Hedging Obligations”
means, with respect to any Person, the net payment Obligations of such Person
under Financial Hedging Agreements.


 


“Fixed Charge Coverage Ratio”
means, with respect to any Person for any period, the ratio of the Consolidated
Cash Flow of such Person for such period to the Fixed Charges of such Person
for such period. If such Person or any of its Restricted Subsidiaries incurs,
assumes, guarantees, redeems or repays any Indebtedness (other than revolving
credit borrowings under any Credit Facility) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but


 


12

















 


on or 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
calculated giving pro forma effect to such incurrence, assumption, guarantee,
redemption or repayment of Indebtedness, or such issuance, repurchase 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:


 


(1)                                  acquisitions that
have been made by the specified Person or any of its Restricted Subsidiaries,
including through mergers 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 deemed to
have occurred on the first day of the four-quarter reference period and
Consolidated Cash Flow for such reference period shall be calculated giving pro
forma effect to any expense, cost reductions and operating improvements that
have occurred or, in the reasonable judgment of the chief financial officer or
other senior financial person of such Person as set forth in an Officers’
Certificate, are reasonably expected to occur (regardless of whether those
operating improvements or cost savings could then be reflected in pro forma
financial statements prepared in accordance with Regulation S-X promulgated by
the Commission or any regulation or policy related thereto);


 


(2)                                  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; and


 


(3)                                  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, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date.


 


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


 


(1)                                  the consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued (including, without limitation or duplication,
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 Hedging Obligations);


 


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


 


13

















 


(3)                                  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 such guarantee or Lien is
called upon); and


 


(4)                                  all dividend
payments, whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividend payments on
Equity Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock).


 


“Foreign Subsidiary”
means any Restricted Subsidiary of the Company that is not (a) a Domestic
Subsidiary or (b) a guarantor of Indebtedness under a Credit Facility of the
Company or a Domestic Subsidiary.


 


“GAAP” means generally
accepted accounting principles in the United States, which are applicable at
the date of determination.


 


“Global Securities”
means, individually and collectively, each of the Restricted Global Securities
and the Unrestricted Global Securities.


 


“Global Security Legend”
means the legend set forth in Section 2.6(g)(2), which is required to be
placed on all Global Securities issued under this Indenture.


 


“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of
America for the payment of which guarantees or obligations the full faith and
credit of the United States is pledged.


 


“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, letters of credit and reimbursement agreements
in respect thereof or pledging assets to secure), of all or any part of any
Indebtedness.


 


“Guarantors” means:


 


(1)                                  each of the Company’s
Domestic Subsidiaries as of the Issue Date except for any of such Subsidiaries
that is not required by the Identified Senior Credit Facilities to act as
guarantors thereunder;


 


(2)                                  each of the Company’s
Domestic Subsidiaries that becomes a guarantor of the Securities pursuant to Section 4.10;
and


 


(3)                                  each of the Company’s
other Restricted Subsidiaries executing a supplemental indenture in which such
Restricted Subsidiary agrees to guarantee the obligations of the Company under,
or to be bound by the terms of, this Indenture;


 


14

















 


provided that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor when its Subsidiary Guarantee is released in accordance with the
terms of this Indenture.


 


“Hedging Obligations”
means, with respect to any Person, collectively, the Commodity Hedging
Obligations of such Person, the Currency Hedging Obligations of such Person and
the Financial Hedging Obligations of such Person.


 


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


 


“Identified Senior Credit Facilities”
means (i) that certain Credit Agreement, dated as of June 29, 2005, as amended,
among the Company, as borrower, the several lenders from time to time party
thereto, Lehman Brothers Inc., as sole lead arranger and sole book runner,
Lehman Commercial Paper Inc., as syndication agent, administrative agent and as
collateral agent, and Wells Fargo Foothill, Inc., as revolving administrative
agent, providing for (a) a revolving credit facility of up to an aggregate
principal amount of $65.0 million, including a $25.0 million sub-facility for
letters of credit, (b) a senior term loan facility in the original aggregate
principal amount of $400.0 million and (c) a prefunded letter of credit
facility in the aggregate amount of $82.3 million and (ii) the Credit Facility
providing for revolving loans of up to $400.0 million to be entered into on or
about the Issue Date in order to replace, refund or renew the Credit Agreement
referred to in clause (i) of this definition.


 


“Indebtedness” means,
with respect to any Person, without duplication,


 


(1)                                  the principal of and
premium, if any, with respect to indebtedness of such Person for borrowed money
or evidenced by bonds, notes, debentures or similar instruments;


 


(2)                                  reimbursement
obligations of such Person for letters of credit or banker’s acceptances;


 


(3)                                  Capital Lease Obligations
of such Person;


 


(4)                                  obligations of such
Person for the payment of the balance deferred and unpaid of the purchase price
of any property except any such balance that constitutes an accrued expense or
trade payable;


 


(5)                                  Hedging Obligations
(the amount of which at any time of determination shall be equal to the
termination value of the agreement or arrangement giving rise to such Hedging
Obligation that would be payable at such time); or


 


(6)                                  preferred stock of a
Restricted Subsidiary that is not a Subsidiary Guarantor (but excluding, in
each case, any accrued dividends);


 


in the case of the foregoing clauses (1) through (5) if and to the
extent any of the foregoing obligations or indebtedness (other than letters of
credit, banker’s acceptances and Hedging


 


15

















 


Obligations), but excluding amounts recorded in accordance with
Statement of Financial Accounting Standard No. 133, would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP. In the
case of clause (6), the amount of Indebtedness attributable to such preferred
stock shall be the repurchase price calculated in accordance with the terms of
such preferred stock as if the preferred stock were repurchased on the date on
which Indebtedness is required to be determined pursuant to this Indenture; provided that if the preferred stock is
not then permitted to be repurchased, the amount of Indebtedness shall be the
greater of the liquidation preference and the book value of the preferred
stock.


 


In addition, the term “Indebtedness” includes, without duplication:


 


(A)                              obligations or
indebtedness of others of the type referred to in the foregoing clauses (1)
through (6) that are secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person), but in an amount not to
exceed the lesser of the amount of such other Person’s obligation or
indebtedness or the Fair Market Value of such asset; and


 


(B)                                to the extent not
otherwise included, the guarantee by such Person of any obligations or
indebtedness of others of the type referred to in the foregoing clauses (1)
through (6), whether or not such guarantee is contingent, and whether or not
such guarantee appears on the balance sheet of such Person.


 


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


 


“Independent Financial Advisor”
means a nationally recognized accounting, appraisal or investment banking firm
that is, in the reasonable judgment of the Board of Directors, qualified to
perform the task for which such firm has been engaged hereunder and
disinterested and independent with respect to the Company and its Affiliates; provided, that providing accounting,
appraisal or investment banking services to the Company or any of its
Affiliates or having an employee, officer or other representative serving as a
member of the Board of Directors of the Company or any of its Affiliates will
not disqualify any firm from being an Independent Financial Advisor.


 


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


 


“Initial Purchasers”
means, with respect to the Initial Securities, Lehman Brothers Inc., Banc of
America Securities, LLC, Morgan Stanley & Co. Incorporated, Wells Fargo
Securities, LLC, Capital One Southcoast, Inc., Fortis Securities LLC and
Natixis Bleichroeder Inc.


 


“Interest Payment Date,”
when used with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.


 


“Investment Grade Rating”
means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or
BBB- (or the equivalent) by S&P.


 


16

















 


“Investment Grade Rating Event”
means the first day on which the Securities are assigned an Investment Grade
Rating by a Rating Agency and no Default or Event of Default has occurred and
is continuing.


 


“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 (other than advances
to customers in the ordinary course of business which are recorded as accounts
receivable on the balance sheet of the lender and commissions, moving, travel
and similar advances to employees and officers made in the ordinary course of
business) or capital contributions, purchases or other acquisitions for
consideration 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. If the Company or any of its Restricted
Subsidiaries sells or otherwise disposes of any Equity Interests of any direct
or indirect Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a direct or indirect
Restricted Subsidiary of the Company, the Company, or such Restricted
Subsidiary, as the case may be, 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 such Restricted Subsidiary not sold or disposed of in an
amount determined as provided in Section 4.9(b).


 


“Issue Date” means the
first date on which the Securities are issued, authenticated and delivered
under this Indenture.


 


“Lien” means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, 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 thereof, any
option or other agreement to sell or give a security interest in any asset and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).


 


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


 


“Net Income” means, with
respect to any Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however, (1) any gain (but not loss), together with any
related provision for taxes on such gain (but not loss), realized in connection
with (a) any Asset Sale (including, without limitation, dispositions pursuant
to any Sale/Leaseback Transaction); or (b) 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 (2) any
extraordinary, unusual or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but not
loss).


 


“Net Proceeds” means the
aggregate cash proceeds or Cash Equivalents 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


 


17

















 


received in any Asset Sale),
net of (i) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting, investment banking and brokers’ fees, sales and
underwriting commissions and other reasonable costs incurred in preparing such
asset for sale), any relocation expenses incurred as a result thereof and any
related severance and associated costs, expenses and charges of personnel
related to the sold assets and related operations, (ii) taxes paid or reserved
as payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), (iii) distributions
and payments required to be made to minority interest holders in Restricted
Subsidiaries as a result of such Asset Sale, (iv) amounts paid in order to
satisfy any Lien attaching to an asset in connection with such Asset Sale and
(v) any reserve for adjustment (whether or not placed in escrow) in respect of
the sale price of such asset or assets established in accordance with GAAP.


 


“Non-Recourse Indebtedness”
means Indebtedness:


 


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


 


(2)                                  the incurrence of
which will not result in any recourse against any of the assets of the Company
or its Restricted Subsidiaries; and


 


(3)                                  no default with
respect to which would permit (upon notice, lapse of time or both) any holder
of any other Indebtedness of the Company or any of its Restricted Subsidiaries
to declare pursuant to the express terms governing such Indebtedness a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity.


 


“Obligations” means any
principal, premium (if any), interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company or its Restricted Subsidiaries (whether or not a claim for post-filing
interest is allowed in such proceeding)), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees (including the
Subsidiary Guarantees) and other liabilities or amounts payable under the
documentation governing any Indebtedness or in respect thereof.


 


“Officer” means, with
respect to any Person, the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer, any Vice President, the Treasurer,
the Controller or the Secretary of such Person.


 


“Officers’ Certificate”
means a certificate signed on behalf of the Company by two of its Officers or
by an Officer and either an Assistant Treasurer or an Assistant Secretary of
the Company and that complies with Sections 11.4 and 11.5 of this
Indenture and is delivered to the Trustee.


 


“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the
Trustee and that complies with Sections 11.4 and 11.5 of this
Indenture and is


 


18

















 


delivered to the Trustee. The
counsel may be an employee of or counsel to the Company or the Trustee.


 


“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 The Depository Trust Company, shall include Euroclear and
Clearstream).


 


“Permitted Acquisition Indebtedness”
means Indebtedness or Disqualified Stock of the Company or any of its
Restricted Subsidiaries to the extent such Indebtedness or Disqualified Stock
was Indebtedness or Disqualified Stock of (i) a Subsidiary prior to the date on
which such Subsidiary became a Restricted Subsidiary or (ii) a Person that
merged or consolidated with or into the Company or a Restricted Subsidiary; provided that on the date such Subsidiary
became a Restricted Subsidiary or the date such Person was merged or
consolidated with or into the Company or a Restricted Subsidiary, as
applicable, after giving pro forma effect thereto, (a) the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test in Section 4.3(a), (b) the Fixed
Charge Coverage Ratio for the Company would be greater than the Fixed Charge
Coverage Ratio for the Company immediately prior to such transaction, or (c)
the Consolidated Net Worth of the Company would be greater than the
Consolidated Net Worth of the Company immediately prior to such transaction; provided that such Indebtedness was not
incurred in contemplation of, or in connection with, such transaction.


 


“Permitted Business”
means, with respect to the Company and its Restricted Subsidiaries:


 


(1)                                  any business engaged
in by the Company or any of its Restricted Subsidiaries on the Issue Date; and


 


(2)                                  any business that is
a reasonable extension, development or expansion of, or reasonably related to,
any of the businesses referred to in clause (1) or to the oil and gas industry.


 


“Permitted Investments”
means:


 


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


 


(2)                                  any Investment in
Cash Equivalents or deposit accounts maintained in the ordinary course of
business consistent with past practices;


 


(3)                                  any Investment by the
Company or any Restricted Subsidiary of the Company in a Person, if as a result
of such Investment:


 


(a)                                  such Person becomes a
Restricted Subsidiary of the Company; or


 


(b)                                 such Person is merged
or consolidated with or into, or transfers or otherwise disposes of all or
substantially all of its properties or assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company;


 


19
















 


(4)                                  any security or other
Investment received or Investment made as a result of the receipt of non-cash
consideration from:


 


(a)                                  an Asset Sale that
was made pursuant to and in compliance with Section 4.7; or


 


(b)                                 a disposition of
assets that does not constitute an Asset Sale;


 


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


 


(6)                                  any Investment
received in settlement of debts, claims or disputes owed to the Company or any Restricted
Subsidiary of the Company that arose out of transactions in the ordinary course
of business;


 


(7)                                  any Investment
received in connection with or as a result of a bankruptcy, workout or
reorganization of any Person;


 


(8)                                  advances and
extensions of credit in the nature of accounts receivable arising from the sale
or lease of goods or services or the licensing of property in the ordinary
course of business;


 


(9)                                  advances and loans to
employees, officers and directors (including, without limitation, loans and
advances the net cash proceeds of which are used solely to purchase Equity
Interests of the Company in connection with restricted stock or employee stock
purchase plans, or to exercise stock received pursuant thereto or other
incentive plans in a principal amount not to exceed the aggregate exercise or
purchase price), or loans to refinance principal and accrued interest on any
such loans, provided that the aggregate principal amount of such loans,
advances and allowances shall not exceed at any time $20 million;


 


(10)                            other Investments by the
Company or any Restricted Subsidiary of the Company in any Person having an
aggregate Fair Market Value (measured as of the date each such Investment is
made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (10) (net of
returns of capital, dividends and interest paid on Investments and sales,
liquidations and redemptions of Investments), not to exceed the greater of (i)
$25 million and (ii) 2.5% of Consolidated Tangible Net Assets;


 


(11)                            Investments in the form of
intercompany Indebtedness or guarantees of Indebtedness of a Restricted
Subsidiary of the Company permitted under clauses (5) and (10) of Section 4.3(b);


 


(12)                            Investments arising in
connection with Hedging Obligations that are incurred in the ordinary course of
business for the purpose of fixing or hedging


 


20

















 


commodity, currency or interest rate risk in connection with the
conduct of the business of the Company and its Subsidiaries and not for
speculative purposes;


 


(13)                            Investments in the form of,
or pursuant to, joint ventures, partnership agreements, and Investments and
expenditures in connection therewith or pursuant thereto, in each case, made or
entered into the ordinary course of the business described in clauses (1) and
(2) of the definition of “Permitted Business,” excluding, however, investments
in publicly traded Persons;


 


(14)                            any Investments in prepaid
expenses, negotiable instruments held for collection and lease, utility, worker’s
compensation, performance and other similar deposits and prepaid expenses made
in the ordinary course of business; and


 


(15)                            Investments pursuant to
agreements and obligations of the Company and any Restricted Subsidiary in
effect on the Issue Date and any renewals or replacements thereof on terms and
conditions not materially less favorable to the Company or such Restricted
Subsidiary, as the case may be, than the terms of the Investment being renewed
or replaced.


 


“Permitted Liens” means:


 


(1)                                  Liens securing
Indebtedness incurred under the Credit Facilities pursuant to Section 4.3;


 


(2)                                  Liens other than
Liens permitted by clause (1) of this definition of “Permitted Liens” granted
in favor of the Company or the Guarantors;


 


(3)                                  Liens to secure
Indebtedness (including Capital Lease Obligations) permitted by clause (6) of Section 4.3(b)
covering only the assets acquired, constructed, improved or developed with, or
secured by, such Indebtedness;


 


(4)                                  Liens existing on the
Issue Date;


 


(5)                                  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 diligently
pursued, provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;


 


(6)                                  Liens existing upon
the occurrence of an Investment Grade Rating Event;


 


(7)                                  carriers’,
warehousemen’s, mechanics’, materialmen’s, repairman’s or other like Liens
arising in the ordinary course of business;


 


(8)                                  pledges or deposits
in connection with workers’ compensation, unemployment insurance and other
social security legislation;


 


21

















 


(9)                                  deposits to secure
the performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;


 


(10)                            any interest or title of a
lessor under any Capital Lease entered into by the Company or any of its
Subsidiaries in the ordinary course of its business and covering only the
property or assets so leased;


 


(11)                            Liens in favor of
collecting or payor banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of the Company or any of its
Subsidiaries on deposit with or in possession of such bank;


 


(12)                            Liens to secure Hedging
Obligations of the Company and its Restricted Subsidiaries, in each case
incurred in the ordinary course of business and not for speculative purposes;


 


(13)                            Liens on property or assets
of a Person existing at the time (a) such Person is merged with or into or
consolidated with the Company or any Restricted Subsidiary, (b) such Person
becomes a Restricted Subsidiary or (c) such property is otherwise acquired by
the Company or a Restricted Subsidiary; provided,
that such Liens were in existence prior to the contemplation of such merger,
consolidation or other acquisition and do not extend to any property or assets
other than those of the Person merged into or consolidated with the Company or
the Restricted Subsidiary in the case of a merger or consolidation pursuant to
clause (a) or such property or assets in the case of such other acquisition in
the case of clause (b) or (c);


 


(14)                            Liens to secure any
Permitted Refinancing Indebtedness permitted to be incurred under this
Indenture; provided that (a) the
new Lien shall be limited to all or part of the same property or assets that
secured or, under the written agreements pursuant to which the original Lien
arose, could secure the original Lien (plus improvements and accessions to,
such property or assets  or proceeds or
distributions thereof) and (b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (x) the outstanding principal
amount, or, if greater, committed amount, of the Permitted Refinancing
Indebtedness and (y) an amount necessary to pay any fees and expenses, including
premiums, related to such renewal, refunding, refinancing, replacement,
defeasance or discharge;


 


(15)                            Liens upon specific items
of inventory, accounts receivables or other goods and proceeds of the Company
or any Restricted Subsidiary securing such Person’s obligations in respect of
banker’s acceptances or receivables securitizations issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory, accounts receivables or other goods and proceeds and, if incurred
prior to an Investment Grade Rating Event, permitted by Section 4.3;


 


22

















 


(16)                            any Lien resulting from the
deposit of money or other Cash Equivalents or other evidence of indebtedness in
trust for the purpose of defeasing Indebtedness of the Company or any
Restricted Subsidiary;


 


(17)                            any Liens securing
industrial development, pollution control or similar bonds; and


 


(18)                            Liens incurred in the
ordinary course of business of the Company or any Restricted Subsidiary of the
Company with respect to Indebtedness that does not exceed in principal amount
(or accreted value, as applicable) the greater of (a) $20 million at any one
time outstanding and (b) 2% of Consolidated Net Tangible Assets determined as
of the date of the incurrence of such Indebtedness after giving pro forma
effect to such incurrence and the application of proceeds therefrom.


 


“Permitted Refinancing Indebtedness”
means any Indebtedness of the Company or any of its Restricted Subsidiaries, or
portion of such Indebtedness, issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Restricted Subsidiaries (other than
intercompany Indebtedness), including Indebtedness that extends, refinances,
renews, replaces, defeases or refunds Permitted Refinancing Indebtedness, provided that:


 


(1)                                  the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount of (or accreted value, if applicable), plus
accrued and unpaid interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus fees and expenses incurred in
connection therewith, including any premium or defeasance cost);


 


(2)                                  such Permitted
Refinancing Indebtedness has a final maturity date equal to or 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;


 


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


 


(4)                                  such Indebtedness is
not incurred by a Restricted Subsidiary of the Company if the Company is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.


 


Notwithstanding the preceding, any Indebtedness incurred under Credit
Facilities pursuant to Section 4.3 shall be subject to the refinancing
provisions of the definition of “Credit


 


23

















 


Facilities” and not pursuant to
the requirements set forth in this definition of Permitted Refinancing
Indebtedness.


 


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


 


“Private Placement Legend”
means the legend set forth in Section 2.6(g)(1) to be placed on all
Securities issued under this Indenture except where otherwise permitted by the
provisions of this Indenture.


 


“QIB” means any “qualified
institutional buyer” (as defined in Rule 144).


 


“Quotation Agent” means
the Reference Treasury Dealer selected by the Trustee after consultation with
the Company.


 


“Rating Agency” means
each of S&P and Moody’s, or if S&P or Moody’s or both shall not make a
rating on the Securities publicly available (other than as a result of
voluntary action, or inaction, on the part of the Company), a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Company (as certified by a resolution of the Board of Directors) which
shall be substituted for S&P or Moody’s, or both, as the case may be.


 


“Redemption Date,” when
used with respect to any Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.


 


“Redemption Price,” when
used with respect to any Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.


 


“Reference Treasury Dealer”
means any nationally recognized investment banking firm selected by the Company
that is a primary dealer of Government Securities.


 


“Reference Treasury Dealer
Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue with respect to the
Securities, expressed in each case as a percentage of its principal amount,
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City Time, on the third Business Day immediately preceding the
Redemption Date.


 


“Registered  Exchange Offer” means an offer to exchange
Exchange Securities for either Initial Securities or Additional Securities
pursuant to an Exchange Offer Registration Statement as required by a
Registration Rights Agreement.


 


“Registration Rights Agreement”
means, with respect to the Initial Securities, the Registration Rights
Agreement, dated as of the Issue Date, among the Company and the Initial
Purchasers, or any similar registration rights agreement with respect to
Additional Securities.


 


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


 


24

















 


“Regulation S Global Security”
means a permanent Global Security substantially in the form of Exhibit A
hereto bearing the Global Security Legend and the Private Placement Legend,
that has the “Schedule of Exchanges of Interests in the Global Security”
attached thereto, and that is deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Securities initially sold in reliance
on Regulation S.


 


“Restricted Definitive Security”
means a Definitive Security bearing the Private Placement Legend.


 


“Restricted Global Security”
means a Global Security bearing the Private Placement Legend (including the
Regulation S Global Security).


 


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


 


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


 


“Restricted Subsidiary”
of a Person means any Subsidiary of the referenced Person that is not an
Unrestricted Subsidiary or a direct or indirect Subsidiary of an Unrestricted
Subsidiary; provided that, on the
Issue Date, all Subsidiaries of the Company shall be Restricted Subsidiaries of
the Company.


 


“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 Services, a division of The McGraw-Hill Companies, Inc.,
or any successor to the rating agency business thereof.


 


“Sale/Leaseback Transaction”
means an arrangement relating to property or assets owned by the Company or a
Restricted Subsidiary on the Issue Date or thereafter acquired by the Company
or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary
transfers such property or assets to a Person (other than the Company or a
Restricted Subsidiary) and the Company or a Restricted Subsidiary leases such
property or assets from such Person.


 


“Securities” means
securities issued under this Indenture. The Initial Securities, the Exchange
Securities and the Additional Securities shall be treated as a single class for
all purposes under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase and unless otherwise provided or
the context otherwise requires, all references to “the Securities” shall
include the Initial Securities, the Exchange Securities and the Additional
Securities.


 


25

















 


“Securities Act” means
the Securities Act of 1933 and any successor statute thereto, in each case as
amended from time to time.


 


“Securities Custodian”
means the custodian with respect to a Global Security (as appointed by the
Depositary) or any successor Person, and shall initially be the initial
Registrar.


 


“Senior Indebtedness”
means, with respect to any Person, (A) all Indebtedness of such Person, whether
outstanding on the Issue Date or thereafter created, incurred or assumed and
(B) all other Obligations of such Person in respect of Indebtedness described
in clause (A) above, unless, in the case of clauses (A) and (B), in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such Indebtedness or other Obligations are
subordinate in right of payment to the Securities or any Subsidiary Guarantee; provided, however,
that Senior Indebtedness shall not include:


 


(1)                                  any obligation of
such Person to the Company or any Affiliate of the Company;


 


(2)                                  any liability for
Federal, state, foreign, local or other taxes owed or owing by such Person;


 


(3)                                  any accounts payable
or other liability to trade creditors arising in the ordinary course of
business (including guarantees thereof or instruments evidencing such
liabilities);


 


(4)                                  any Indebtedness or
other Obligation of such Person that is subordinate or junior in any respect to
any other Indebtedness or other Obligation of such Person;


 


(5)                                  the portion of any
Indebtedness which at the time of incurrence is incurred in violation of this
Indenture (except that Indebtedness under a Credit Facility will not fail to
qualify as Senior Indebtedness pursuant to this clause (5) if it is incurred on
the basis of an Officers’ Certificate certifying that its incurrence was
permitted by this Indenture); and


 


(6)                                  any Capital Stock.


 


“Shelf Registration Statement”
means a registration statement of the Company used by a Holder in connection
with its offer and sale of Securities pursuant to a Registration Rights
Agreement.


 


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


 


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


 


26

















 


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


 


“Subordinated Obligation”
means any Indebtedness of the Company (whether outstanding on the Issue Date or
thereafter incurred) which pursuant to a written agreement is subordinate or
junior in right of payment to the Securities and any Indebtedness of a
Guarantor (whether outstanding on the Issue Date or thereafter incurred) which
pursuant to a written agreement is subordinate or junior in right of payment to
its Subsidiary Guarantee.


 


“Subsidiary” means, with
respect to any Person,


 


(1)                                  any corporation,
association or other business entity of which more than 50% of the total voting
power of the Voting Stock thereof is at the time owned or controlled, directly
or indirectly, by such Person; and


 


(2)                                  any partnership (a)
the sole general partner or the managing general partner of which is such
Person or an entity described in clause (1) and related to such Person or (b)
the only general partners of which are such Person or of one or more entities
described in clause (1) and related to such Person (or any combination
thereof).


 


“Subsidiary Guarantee”
means the guarantee of the Securities by each Guarantor pursuant to Article
X hereof.


 


“Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939 as in force at the Issue Date, except as
provided in Section 9.3; provided,
however, that in the event the Trust Indenture Act of 1939 is
amended after such date, “Trust Indenture Act” or “TIA” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.


 


“Trustee” means the
Person named as the “Trustee” in the first paragraph of this Indenture until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder.


 


“Trust Officer” means any
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.


 


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


 


“Unrestricted Global Security”
means a permanent Global Security substantially in the form of Exhibit A
attached hereto that bears the Global Security Legend, that has the “Schedule
of Exchanges of Interests in the Global Security” attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing Securities that do not bear and are not required to bear the
Private Placement Legend.


 


“Unrestricted Subsidiary”
means: (1) any Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary of the Company) that is designated by the Board of


 


27

















 


Directors as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors as certified in
an Officers’ Certificate delivered to the Trustee; and (2) each Subsidiary of
an Unrestricted Subsidiary, whenever it shall become such a Subsidiary.


 


The Board of Directors may designate any Subsidiary of the Company to
become an Unrestricted Subsidiary if it:


 


(1)                                  has no Indebtedness
other than Non-Recourse Indebtedness;


 


(2)                                  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, in light of all
the circumstances, at the time from Persons who are not Affiliates of the
Company;


 


(3)                                  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 Persons to achieve any specified levels of operating results;


 


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


 


(5)                                  does not own any
Capital Stock of, or own or hold any Lien on any property of, the Company or
any Restricted Subsidiary of the Company; and


 


(6)                                  would constitute an
Investment which the Company could make in compliance with Section 4.4.


 


Notwithstanding the preceding, if, at any time, any Unrestricted
Subsidiary would fail to meet the preceding 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 as of such date.


 


“U.S. Person” means any
U.S. person as defined for purposes of Regulation S.


 


“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 (1) 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, in
respect thereof, 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 (2) the then outstanding principal amount of such Indebtedness.


 


28

















 


Section 1.2                                      Other Definitions


 


The following terms are defined in the indicated part of this
Indenture:


 


	
  “Affiliate Transaction”

  	
   

  	
  Section 4.8(a)

  
	
  “Asset Sale Offer”

  	
   

  	
  Section 4.7(c)

  
	
  “Asset Sale Payment”

  	
   

  	
  Section 4.7(c)

  
	
  “Asset Sale Payment Date”

  	
   

  	
  Section 4.7(d)

  
	
  “Authenticating Agent”

  	
   

  	
  Section 2.2(e)

  
	
  “Calculation Date”

  	
   

  	
  Section 1.1 (“Fixed Charge Coverage Ratio”)

  
	
  “Change of Control Offer”

  	
   

  	
  Section 4.12(a)

  
	
  “Change of Control Payment”

  	
   

  	
  Section 4.12(a)

  
	
  “Change of Control Payment Date”

  	
   

  	
  Section 4.12(a)

  
	
  “covenant defeasance option”

  	
   

  	
  Section 8.1(b)

  
	
  “Defaulted Interest”

  	
   

  	
  Section 2.11

  
	
  “Event of Default”

  	
   

  	
  Section 6.1(a)

  
	
  “Excess Asset Sale Proceeds”

  	
   

  	
  Section 4.7(b)

  
	
  “Group”

  	
   

  	
  Section 1.1 (“Change of Control”)

  
	
  “Guaranteed Obligations”

  	
   

  	
  Section 10.1(a)

  
	
  “incur”

  	
   

  	
  Section 4.3(a)

  
	
  “Initial Securities”

  	
   

  	
  Preamble

  
	
  “legal defeasance option”

  	
   

  	
  Section 8.1(b)

  
	
  “Legal Holiday”

  	
   

  	
  Section 11.7

  
	
  “Paying Agent”

  	
   

  	
  Section 2.3(a)

  
	
  “Payment Default”

  	
   

  	
  Section 6.1(a)(5)

  
	
  “Permitted Debt”

  	
   

  	
  Section 4.3(b)

  
	
  “Registrar”

  	
   

  	
  Section 2.3(a)

  
	
  “Restricted Payments”

  	
   

  	
  Section 4.4(a)

  



 


Section 1.3                                      Incorporation by Reference of Trust Indenture Act


 


(a)                                  This
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms have the following meanings:


 


“indenture securities” means the Securities 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 indenture securities means the Company, the Guarantors
and any other obligor on the indenture securities.


 


29

















 


(b)                                 All
other Trust Indenture Act terms used in this Indenture that are defined by the
Trust Indenture Act, defined by the Trust Indenture Act by reference to another
statute or defined by an SEC rule have the meanings assigned to them by such
definitions.


 


Section 1.4                                      Rules of Construction


 


Unless the context otherwise requires:


 


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


 


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


 


(3)                                  “or” is not
exclusive;


 


(4)                                  “including” means
including without limitation;


 


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


 


(6)                                  unless otherwise
indicated, all references to “Articles” or “Sections” are to Articles or
Sections, as the case may be, of this Indenture;


 


(7)                                  references to
sections of or rules under the Exchange Act or the Securities Act shall be
deemed to include substitute, replacement or successor sections or rules
adopted by the SEC from time to time; and


 


(8)                                  “herein,” “hereof”
and other words of similar import refer to this Indenture as a whole (as
amended or supplemented from time to time) and not to any particular Article,
Section or other subdivision.


 


ARTICLE II


 


THE SECURITIES


 


Section 2.1                                      Form and Dating


 


(a)                                  General. The Securities and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibit
A hereto. Any notation of Subsidiary Guarantee shall be substantially in
the form of Exhibit D hereto, and shall be notated on the Securities. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its authentication.
The Securities shall be in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The terms and provisions contained in
the Securities shall constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of any Security
or any Subsidiary Guarantee conflicts with


 


30

















 


the express provisions of this Indenture, the
provisions of this Indenture (to the extent permitted by law) shall govern and
be controlling.


 


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


 


(c)                                  Regulation S Global Securities. Any
Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of a Regulation S Global Security, which shall be
deposited on behalf of the purchasers of the Securities represented thereby
with the Securities Custodian, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Prior to the expiration
of the Restricted Period, any resale or transfer of beneficial interests in a
Regulation S Global Security to U.S. Persons shall not be permitted unless such
resale or transfer is made pursuant to Rule 144A or Regulation S.


 


(d)                                 144A Global Securities. Any Securities
offered and sold in reliance on Rule 144A shall be issued initially in the form
of a 144A Global Security, which shall be deposited on behalf of the purchasers
of the Securities represented thereby with the Securities Custodian, and
registered in the name of the Depositary or the nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.


 


(e)                                  Definitive Securities. Notwithstanding any
other provision of this Article II, any issuance of Definitive
Securities shall be at the Company’s discretion, except in the specific
circumstances set forth in Section 2.6(a) hereof.


 


Section 2.2                                      Execution and Authentication


 


(a)                                  An
Officer shall sign the Securities for the Company by manual or facsimile
signature. One Officer shall sign each notation of Subsidiary Guarantee for
each Guarantor by manual or facsimile signature.


 


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


 


31

















 


(c)                                  A
Security shall not be valid until an authorized signatory of the Trustee
manually authenticates the Security. The signature of the Trustee on a Security
shall be conclusive evidence that such Security has been duly and validly
authenticated and issued under this Indenture.


 


(d)                                 The
Trustee shall authenticate and deliver: (1) Initial Securities for original
issue in an aggregate principal amount of $425,000,000, (2) if and when issued,
Additional Securities (which may be issued in either a registered or a private
offering under the Securities Act) and (3) Exchange Securities for issue
only in an exchange offer pursuant to a Registration Rights Agreement, and only
in exchange for Initial Securities or Additional Securities of an equal
principal amount, in each case upon a written order of the Company signed by
one Officer of the Company. Such order shall specify the amount of the
Securities to be authenticated and the date on which the issue of Securities is
to be authenticated and whether the Securities are to be in global or
definitive form and whether they are to bear the Private Placement Legend. The
Company may issue Additional Securities under this Indenture subsequent to the
Issue Date, subject to Section 4.3 of this Indenture; provided, however, that no Additional  Securities may be issued at a price that
would cause such Additional Securities to have “original issue discount” within
the meaning of Section 1273 of the Code.


 


(e)                                  The
Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, any such Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.


 


Section 2.3                                      Registrar and Paying Agent


 


(a)                                  The
Company shall at all times maintain in the continental United States an office
or agency where Securities may be presented for registration of transfer or for
exchange (the “Registrar”), and it shall likewise maintain an office or agency
where Securities may be presented for payment (the “Paying Agent”). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have 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 such additional paying agent.


 


(b)                                 The
Company or any of its Subsidiaries may act as Paying Agent, subject to the
provisions of Section 4.15, or as Registrar. Any Paying Agent or
Registrar may resign as such upon 30 days’ prior written notice to the Company
and the Trustee; upon resignation of any Paying Agent or Registrar, the Company
shall appoint a successor Paying Agent or Registrar, as the case may be,
complying with the requirements of this Section 2.3, no later than 30
days thereafter and shall provide notice to the Trustee of such successor
Paying Agent or Registrar.


 


(c)                                  The
Company initially appoints The Bank of New York Trust Company, N.A. as
Registrar and Paying Agent for the Securities at its Corporate Trust Office. The
place of payment with respect to the Securities, in addition to the Corporate
Trust Office of the Trustee, shall be New York, New York, and at such time, if
ever, as the Securities are no longer


 


32

















 


represented by one or more Global Securities,
the Company shall appoint and maintain a Paying Agent in New York, New York,
the intention of the Company being that, after giving effect to the procedures
of the Depositary respecting payments on Global Securities, the Securities
shall at all times be payable in New York, New York.


 


(d)                                 The
immunities, protections and exculpations available to the Trustee under this
Indenture shall also be available to each Agent, and the Company’s obligations
under Section 7.7 to compensate and indemnify the Trustee shall extend
likewise to each Agent.


 


Section 2.4                                      [Intentionally Omitted]


 


Section 2.5                                      Holder Lists


 


The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee, in writing 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 as the Trustee may reasonably require of the
names and addresses of Holders.


 


Section 2.6                                      Transfer and Exchange


 


(a)                                  Transfer and Exchange of Global Securities.
A Global Security 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. Global
Securities also may be exchanged or replaced, in whole, as provided in Section
2.7 hereof. Owners of beneficial interests in Global Securities shall not
be entitled to receive Definitive Securities unless:


 


(1)                                  the
Company delivers to the Trustee and the Registrar notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is
no longer a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 90 days;


 


(2)                                  there
has occurred and is continuing an Event of Default and the Depositary notifies
the Trustee and the Registrar of its decision to exchange the Global Securities
for Definitive Securities; provided
that in no event shall the Regulation S Global Security be exchanged by the
Company for Definitive Securities prior to the expiration of the Restricted
Period; or


 


(3)                                  any
such owner requests (through a Direct or Indirect Participant) an exchange of
its beneficial interest in a Global Security for a Definitive Security, and the
Depositary gives the Trustee and the Registrar, in accordance with the
Applicable Procedures, at least 20 days’ prior notice of the request.


 


33

















 


Upon the occurrence of any of the events in clause (1), (2) or (3)
above, Definitive Securities shall be issued in such names and authorized
denominations as the Depositary shall instruct the Trustee and the Registrar in
accordance with the Applicable Procedures. Neither the Company, the Guarantors
nor the Trustee or the Registrar will be liable for any delay by the Depositary
in identifying the owners of beneficial interests in a Global Security, and
each of the Company, the Guarantors, the Trustee and the Registrar may
conclusively rely on, and will be protected in relying on, instructions from
the Depository for all purposes of this Indenture.


 


(b)                                 Transfer and Exchange of Beneficial Interests in the
Global Securities. The transfer and exchange of beneficial interests
in the Global Securities shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures.
Transfers of beneficial interests in the Global Securities also shall require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following provisions of this Section 2.6,
as applicable:


 


(1)                                  Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may
be transferred to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Security in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, (A) transfers of beneficial interests
in the Regulation S Global Security may not be to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser) and
(B) such beneficial interests may be held only through Euroclear or Clearstream
(as Indirect Participants in the Depositary). Beneficial interests in any
Unrestricted Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in such Unrestricted Global
Security. No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in the preceding sentence of
this Section 2.6(b)(1).


 


(2)                                  All Other Transfers and Exchanges of Beneficial
Interests in Global Securities. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.6(b)(1)
above, the transferor of such beneficial interest must deliver to the Registrar
either:


 


(A)                              (i)                                     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 Security in an
amount equal to the beneficial interest to be transferred or exchanged; and


 


(ii)                                       instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or


 


(B)                                (i)                                     a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing


 


34

















 


the Depositary to cause to be issued a Definitive Security in an amount
equal to the beneficial interest to be transferred or exchanged; and


 


(ii)                                       instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Security shall be registered to effect the
transfer or exchange referred to in Section 2.6(b)(2)(B)(i) above; provided that in no event shall
Definitive Securities be issued upon the transfer or exchange of beneficial
interests in the Regulation S Global Security prior to the expiration of the
Restricted Period.


 


Upon consummation of a Registered Exchange Offer by the Company in
accordance with Section 2.6(f) hereof, the requirements of this Section
2.6(b)(2) 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 Securities.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Securities contained in this Indenture, the
Securities or otherwise applicable under the Securities Act, the principal
amount of the relevant Global Security(s) shall be adjusted pursuant to Section
2.6(h) hereof.


 


(3)                                  Transfer of Beneficial Interests to Another
Restricted Global Security. A beneficial interest in any Restricted
Global Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Security if the
transfer complies with the requirements of Section 2.6(b)(2) 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 Security,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and


 


(B)                                if the transferee will
take delivery in the form of a beneficial interest in the Regulation S Global
Security, then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof, and if such
transfer occurs prior to the expiration of the Restricted Period, then the
transferee must hold such beneficial interest through either Euroclear or
Clearstream (as Indirect Participants in the Depositary).


 


(4)                                  Transfer and Exchange of Beneficial Interests in a
Restricted Global Security for Beneficial Interests in the Unrestricted Global
Security. A beneficial interest in any Restricted Global Security
may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security
if the exchange or transfer complies with the requirements of Section
2.6(b)(2) above and:


 


(A)                              such exchange or transfer
is effected pursuant to a Registered Exchange Offer in accordance with the
applicable Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the


 


35

















 


transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal (or via the Depositary’s book-entry system) that it is
not (i) a broker-dealer, (ii) a Person participating in the distribution of the
Exchange Securities or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;


 


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


 


(C)                                such transfer is
effected by an Exchanging Dealer pursuant to an Exchange Offer Registration
Statement in accordance with the applicable Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


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


 


(ii)                                       if the holder of
such beneficial interest in a Restricted Global Security 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 Security, 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 subparagraph (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 is in compliance with the Securities Act and state “blue
sky” laws 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 subparagraph (B) or (D)
above at a time when an Unrestricted Global Security has not yet been issued,
the Company shall issue and, upon receipt of a written order in accordance with
Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.


 


Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Security.


 


36

















 


(c)                                  Transfer or Exchange of Beneficial Interests for
Definitive Securities.


 


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


 


(A)                              if the holder of such
beneficial interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security, 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; or


 


(C)                                if such beneficial
interest is being transferred to a non-U.S. Person in an offshore transaction
in accordance with Rule 904, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (2) thereof,


 


the Registrar shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to Section
2.6(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.6(c) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the Persons in whose names
such Securities are so registered. Any Definitive Security issued in exchange
for a beneficial interest in a Restricted Global Security pursuant to this Section
2.6(c)(1) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein. Notwithstanding Sections
2.6(c)(1)(A) and (C) hereof, a beneficial interest in the Regulation
S Global Security may not be exchanged for a Definitive Security or transferred
to a Person who takes delivery thereof in the form of a Definitive Security
prior to the expiration of the Restricted Period, except in the case of a
transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 904.


 


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


 


(A)                              such exchange or transfer
is effected pursuant to a Registered Exchange Offer in accordance with the
applicable Registration Rights Agreement and the


 


37

















 


holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal (or via the Depositary’s book-entry system) that it is not (i) a
broker-dealer, (ii) a Person participating in the distribution of the Exchange
Securities or (iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;


 


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


 


(C)                                such transfer is
effected by an Exchanging Dealer pursuant to an Exchange Offer Registration
Statement in accordance with the applicable Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


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


 


(ii)                                       if the holder of
such beneficial interest in a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Security, 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 subparagraph (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 is in compliance with the Securities Act and state “blue
sky” laws 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.


 


(3)                                  Beneficial Interests in Unrestricted Global
Securities to Unrestricted Definitive Securities. If any holder of a
beneficial interest in an Unrestricted Global Security proposes to exchange
such beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon satisfaction of the conditions set forth in Section
2.6(b)(2)(B) hereof, the Registrar shall cause the aggregate principal
amount of the applicable Global Security to be reduced accordingly pursuant to Section
2.6(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this Section
2.6(c)(3) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Definitive
Securities to the Persons in whose names such


 


38

















 


Securities are so registered. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this Section
2.6(c)(3) shall not bear the Private Placement Legend.


 


(d)                                 Transfer and Exchange of Definitive Securities for
Beneficial Interests.


 


(1)                                  Restricted Definitive Securities to Beneficial
Interests in Restricted Global Securities. If any Holder of a
Restricted Definitive Security proposes to exchange such Security for a
beneficial interest in a Restricted Global Security or to transfer such
Restricted Definitive Security to a Person who takes delivery thereof in the
form of a beneficial interest in a Restricted Global Security, then, upon
receipt by the Registrar of the following documentation:


 


(A)                              if the Holder of such
Restricted Definitive Security proposes to exchange such Security for a
beneficial interest in a Restricted Global Security, 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 Security 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; or


 


(C)                                if such Restricted
Definitive Security is being transferred to a non-U.S. Person in an offshore
transaction in accordance with Rule 904, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (2) thereof,


 


the Trustee shall cancel the Restricted Definitive Security, the
Registrar shall increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate Restricted Global
Security, in the case of clause (B) above, the 144A Global Security, and in the
case of clause (C) above, the Regulation S Global Security.


 


(2)                                  Restricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A Holder of a
Restricted Definitive Security may exchange such Security for a beneficial
interest in an Unrestricted Global Security or transfer such Restricted
Definitive Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security only if:


 


(A)                              such exchange or transfer
is effected pursuant to a Registered Exchange Offer in accordance with
applicable Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal (or via the Depositary’s book-entry system)
that it is not (i) a broker-dealer, (ii) a Person participating in the
distribution of the Exchange Securities or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


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


 


39

















 


(C)                                such transfer is
effected by an Exchanging Dealer pursuant to an Exchange Offer Registration
Statement in accordance with the applicable Registration Rights Agreement; or


 


(D)                               the Registrar receives
the following:


 


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


 


(ii)                                       if the Holder of
such Definitive Securities proposes to transfer such Securities to a Person who
shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Security, 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 subparagraph (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 is in compliance with the Securities Act and state “blue sky”
laws 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 subparagraphs in this
Section 2.6(d)(2), the Trustee shall cancel the Definitive Securities
and the Registrar shall increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Security.


 


(3)                                  Unrestricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A Holder of an
Unrestricted Definitive Security may exchange such Security for a beneficial
interest in an Unrestricted Global Security or transfer such Definitive
Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Security and the Registrar shall increase or
cause to be increased the aggregate principal amount of one of the Unrestricted
Global Securities.


 


If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraph (2)(B), (2)(D) or (3)
above at a time when an Unrestricted Global Security has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one
or more Unrestricted Global Securities in an aggregate principal amount equal
to the principal amount of Definitive Securities so transferred.


 


(e)                                  Transfer and Exchange of Definitive Securities for
Definitive Securities. Upon request by a Holder of Definitive
Securities and such Holder’s compliance with the provisions of


 


40

















 


this Section 2.6(e), the Registrar
shall register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or surrender
to the Registrar the Definitive Securities duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).


 


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


 


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


 


(B)                                if the transfer will be
made pursuant to Rule 904, 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 transfer will be
made pursuant to any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications required by item (3) thereof and a
letter from the transferee in the form of Annex A thereto.


 


(2)                                  Restricted Definitive Securities to Unrestricted
Definitive Securities. Any Restricted Definitive Security may be exchanged
by the Holder thereof for an Unrestricted Definitive Security or transferred to
a Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:


 


(A)                              such exchange or transfer
is effected pursuant to a Registered Exchange Offer in accordance with the
applicable Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal (or via the Depositary’s book-entry system)
that it is not (i) a broker-dealer, (ii) a Person participating in the
distribution of the Exchange Securities or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


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


 


(C)                                any such transfer is
effected by an Exchanging Dealer pursuant to an Exchange Offer Registration
Statement in accordance with the applicable Registration Rights Agreement; or


 


41

















 


(D)                               the Registrar receives
the following:


 


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


 


(ii)                                       if the Holder of
such Restricted Definitive Security proposes to transfer such Securities to a
Person who shall take delivery thereof in the form of an Unrestricted
Definitive Security, 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 subparagraph (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 is in compliance
with the Securities Act and state “blue sky” laws 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.


 


(3)                                  Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive
Securities may transfer such Securities to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Security. Upon receipt of a request
to register such a transfer, the Registrar shall register the Unrestricted
Definitive Security pursuant to the instructions from the Holder thereof.


 


(f)                                    Registered Exchange Offer. Upon the
occurrence of a Registered Exchange Offer in accordance with the applicable
Registration Rights Agreement, the Company shall issue and, upon receipt of a
written order in accordance with Section 2.2, the Trustee shall authenticate:


 


(1)                                  one
or more Unrestricted Global Securities in an aggregate principal amount equal
to the principal amount of the beneficial interests in the Restricted Global
Securities tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal (or via the Depositary’s book-entry system), among other
things, that (A) they are not broker-dealers, (B) they are not participating in
a distribution of the Exchange Securities and (C) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the
Registered Exchange Offer; and


 


(2)                                  Unrestricted
Definitive Securities in an aggregate principal amount equal to the principal
amount of any Restricted Definitive Securities accepted for exchange in the
Registered Exchange Offer.


 


Concurrently with the issuance of such Securities, the Registrar shall
cause the aggregate principal amount of the applicable Restricted Global
Securities to be reduced accordingly, and the Company shall execute and the
Trustee shall authenticate, and deliver to the Persons designated by the
Holders of any Definitive Securities so accepted, Unrestricted Definitive
Securities in the appropriate principal amount.


 


42

















 


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


 


(1)                                  Private Placement Legend.


 


(A)                              Except as permitted by
subparagraph (B) below or as otherwise agreed between the Company and the
Holder, each Global Security and each Definitive Security (and all Securities
issued in exchange therefor or substitution thereof) shall bear a legend, until
the expiration of the applicable holding period with respect to the Securities
set forth in Rule 144(k), in substantially the following form:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH 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) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), OR (B) IT IS
A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE
904 OF REGULATION S, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”)
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144(K)
(OR ANY SUCCESSOR PROVISION THEREOF) UNDER THE SECURITIES ACT) AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT


 


43

















 


REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A 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, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND THE SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING ANY
STATE OF THE UNITED STATES, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER OR EXCHANGE IN THE FORM PRESCRIBED IN THE INDENTURE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.


 


(B)                                Notwithstanding the
foregoing, any Global Security or Definitive Security issued pursuant to
subparagraph (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of
this Section 2.6 (and all Securities issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.


 


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


 


THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) 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 REGISTRAR MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE
INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.6(a) OF THE INDENTURE AND (III) THIS GLOBAL
SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR


 


44

















 


CANCELLATION
PURSUANT TO SECTION 2.10 OF THE INDENTURE.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR 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 Securities.
At such time as all beneficial interests in a particular Global Security have
been exchanged for Definitive Securities or a particular Global Security has
been redeemed, repurchased or canceled in whole and not in part, each such
Global Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.10 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security or for Definitive Securities,
the principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security by
the Trustee or by the Securities Custodian 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 Security, such other Global Security
shall be increased accordingly and an endorsement shall be made on such Global
Security by the Trustee or by the Securities Custodian at the direction of the
Trustee to reflect such increase.


 


45
















 


(i)                                     General Provisions Relating to Transfers and
Exchanges.


 


(1)                                  To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Securities and Definitive Securities upon
the Company’s order or at the Registrar’s request.


 


(2)                                  No
service charge shall be made to a holder of a beneficial interest in a Global
Security or to a Holder of a Definitive Security 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 or other fee required
by law and payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant to Sections
2.9, 3.6, 3.7, 4.7 and 4.12 hereof).


 


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


 


(4)                                  None
of the Company, the Trustee or the Registrar shall be required (A) to issue, to
register the transfer of or to exchange any Securities during a period of 15
days before the day of any selection of Securities for redemption under Section
3.2 hereof and ending at the close of business on the day of selection, (B)
to register the transfer of or to exchange any Securities so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part or (C) to register the transfer of or to exchange a
Security between a record date and the next succeeding Interest Payment Date.


 


(5)                                  Prior
to the due presentation for registration of transfer of any Security, the
Company, any Guarantor, the Trustee, the Paying Agent or the Registrar may deem
and treat the Person in whose name a Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal,
interest and premium (if any) on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent or the Registrar shall be affected by notice to
the contrary.


 


(6)                                  The
Trustee shall authenticate Global Securities and Definitive Securities upon
receipt of a written order of the Company signed by one of its Officers and in
accordance with the other provisions of Section 2.2 hereof to the extent
applicable.


 


(7)                                  All
certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.6 to effect a registration
of transfer or exchange may be submitted by facsimile.


 


46

















 


Section 2.7                                      Replacement Securities


 


(a)                                  If
any mutilated Security is surrendered to the Registrar or the Company and the
Registrar and the Company receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company will issue and the
Trustee, upon receipt of a written order of the Company (which need not be in
the form of an Officers’ Certificate), will authenticate a replacement Security
if the Registrar’s and the Company’s reasonable requirements are met. If
required by the Registrar or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Registrar, the Trustee and
the Company to protect the Company, the Trustee, the Registrar, any other Agent
and any Authenticating Agent from any loss that any of them may suffer if a
Security is replaced.


 


(b)                                 Every
replacement Security is an additional obligation of the Company and will be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Securities duly issued hereunder.


 


Section 2.8                                      Outstanding Securities


 


(a)                                  The
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 11.6
hereof, a Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.


 


(b)                                 If
a Security is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.


 


(c)                                  If
the principal amount of any Security is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


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


 


Section 2.9                                     Temporary Securities


 


Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities in exchange for temporary Securities. Holders
of temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as a holder of Definitive Securities.


 


47

















 


Section 2.10                                Cancellation


 


The Company at any time may deliver Securities to the Trustee or any
Registrar for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee or the Registrar and no one else shall cancel
and dispose of, in accordance with its policies (but subject to the record
retention requirements of the Exchange Act), all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall deliver a certificate of such disposal to the Company from time to time
upon written request. The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee or the Registrar
for cancellation.


 


Section 2.11                                Defaulted Interest


 


If the Company defaults in a payment of interest (“Defaulted Interest”)
on the Securities, the Company shall pay Defaulted Interest (as provided in Section
4.1) in any lawful manner. The Company may pay the Defaulted Interest to
the Persons who are Holders on a subsequent special record date. The Company
shall fix or cause to be fixed (or upon the Company’s failure to do so the
Trustee shall fix pursuant to a written instruction of Holders of at least a
majority in principal amount of the Securities) any such special record date
and payment date to the reasonable satisfaction of the Trustee which special
record date shall not be less than 10 days prior to the payment date for such
Defaulted Interest and the Company, or at the Company’s request, the Trustee,
shall promptly mail or cause to be mailed to each Holder a notice that states
the special record date, the payment date and the amount of Defaulted Interest
to be paid. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this Section 2.11.


 


Section 2.12                                CUSIP Numbers


 


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


 


48

















 


ARTICLE III


 


REDEMPTION


 


Section 3.1                                      Notices to Trustee


 


(a)                                  If
the Company elects to redeem Securities pursuant to Section 3.7 hereof,
it shall notify the Trustee in writing of the Redemption Date and the principal
amount of Securities to be redeemed. The Company shall give each notice to the
Trustee provided for in this Section 3.1 at least 60 days before the
Redemption Date unless the Trustee consents to a shorter period. If such
redemption is to be effected pursuant to Section 3.7(b) or 3.7(d),
then such notice shall be accompanied by an Officers’ Certificate to the effect
that such redemption will comply with the conditions therein.


 


(b)                                 If
fewer than all the Securities are to be redeemed, the record date relating to
such redemption shall be selected by the Company and set forth in the related
notice given to the Trustee, which record date shall be not less than 15 days
after the date of such notice.


 


Section 3.2                                      Selection of Securities to Be Redeemed


 


In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed, then on a pro rata basis, by lot
or by such method as the Trustee shall deem to be fair and appropriate. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $2,000. Securities and
portions of them the Trustee selects shall be in minimum amounts of $2,000 or a
whole multiple of $1,000 in excess thereof. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be redeemed. The Trustee may rely upon
information provided by the Registrar for purposes of this Section 3.2.


 


Section 3.3                                      Notice of Redemption


 


(a)                                  At
least 30 days but not more than 60 days before a date for redemption of
Securities, the Company shall mail a notice of redemption by first-class mail
to each Holder of Securities to be redeemed at such Holder’s registered
address, except that redemption notices may be mailed more than 60 days prior
to the Redemption Date if the notice is mailed in connection with a defeasance
of the Securities or a satisfaction and discharge of this Indenture in
accordance with Article VIII.


 


49

















 


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


 


(1)                                  the
Redemption Date;


 


(2)                                  the
Redemption Price (if then determined and otherwise the basis for its
determination);


 


(3)                                  the
name and address of the Paying Agent where Securities are to be surrendered;


 


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


 


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


 


(6)                                  that,
unless the Company defaults in making such redemption payment, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and
after the Redemption Date;


 


(7)                                  the
CUSIP, ISIN or other similar numbers, if any, printed on the Securities being
redeemed;


 


(8)                                  that
no representation is made as to the correctness or accuracy of the CUSIP, ISIN
or other similar numbers, if any, listed in such notice or printed on the
Securities; and


 


(9)                                  if
the redemption or notice thereof is subject to one or more conditions, a
statement to such effect and the condition or conditions precedent.


 


(c)                                  At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense. In such event, the Company shall
provide the Trustee with the information required by this Section 3.3(b).


 


Section 3.4                                      Effect of Notice of Redemption


 


(a)                                  Once
notice of redemption is mailed to Holders, Securities (or portions thereof)
called for redemption become irrevocably due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price, plus accrued and unpaid
interest to the Redemption Date; provided
that if the Redemption Date is after the taking of a record of the Holders on a
record date and on or prior to the related Interest Payment Date, the accrued
and unpaid interest shall be payable to the Person in whose name the redeemed
Securities are registered on such record date. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.


 


50

















 


(b)                                 Any
redemption or notice of redemption may, at the Company’s discretion, be subject
to one or more conditions precedent and, in the case of a redemption with the
net cash proceeds (other than Designated Proceeds) of an Equity Offering,
notice may be given prior to, and subject to, the completion of the related
Equity Offering.


 


Section 3.5                                      Deposit of Redemption Price


 


No later than 11:00 a.m. (New York City time) on the Redemption Date,
the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of and accrued and unpaid interest on
all Securities to be redeemed on that date. If the Company complies with the
provisions of this paragraph, then on and after the Redemption Date, interest
will cease to accrue on the Securities or the portions of Securities called for
redemption.


 


Section 3.6                                      Securities Redeemed in Part


 


Upon cancellation of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder (at the Company’s
expense) a new Security equal in principal amount to the unredeemed portion of
the Security surrendered. The Trustee shall notify the Registrar of the
issuance of such new Security.


 


Section 3.7                                      Optional Redemption


 


(a)                                  On
or after December 1, 2011, the Company may redeem all or a part of the
Securities at any time and from time to time at its option at the following
Redemption Prices (expressed as percentages of the principal amount) plus
accrued and unpaid interest on the Securities, if any, to the applicable
Redemption Date, if redeemed during the 12-month period beginning December 1 of
the years indicated:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
  2011

  	
   

  	
  104.188

  	
  %

  
	
  2012

  	
   

  	
  102.094

  	
  %

  
	
  2013

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 Prior
to December 1, 2010, the Company may on one or more occasions redeem up to 35%
of the aggregate principal amount of the outstanding Securities (including
Additional Securities) at a Redemption Price of 108.375% of the principal
amount of the Securities, plus
accrued and unpaid interest, if any, thereon to the Redemption Date, with the
net cash proceeds (other than Designated Proceeds) of any one or more Equity
Offerings; provided, that  (i) at least 65% of the aggregate principal
amount of the Securities (including any Additional Securities) originally
issued under this Indenture remains outstanding immediately after each such
redemption and (ii) each such redemption occurs within 180 days of the date of
the closing of the related Equity Offering.


 


51

















 


(c)                                  In
addition, at any time and from time to time prior to December 1, 2011, the
Company may, at its option, redeem all or part of the Securities at a
Redemption Price equal to:


 


(i)                         100% of
the principal amount thereof, plus


 


(ii)                      the
Applicable Premium, plus


 


(iii)                   accrued and
unpaid interest, if any, thereon to the Redemption Date.


 


The Company shall notify the Trustee of the Applicable Premium by
delivering to the Trustee, on or before the applicable Redemption Date, an
Officers’ Certificate showing the calculation thereof in reasonable detail, and
the Trustee shall have no responsibility for such calculation.


 


(d)                                 If
Holders of not less than 95% in aggregate principal amount of the outstanding
Securities validly tender and do not withdraw such Securities in a Change of
Control Offer and the Company, or any third party making a Change of Control
Offer in lieu of the Company as permitted by Section 4.12, purchases all
of the Securities validly tendered and not withdrawn by such Holders, the
Company or such third party will have the right, upon not less than 30 nor more
than 60 days’ prior notice, given not more than 30 days following such purchase
pursuant to the Change of Control Offer, to redeem all Securities that remain
outstanding following such purchase at a Redemption Price in cash equal to the
applicable Change of Control Payment plus, to the extent not included in the
Change of Control Payment, accrued and unpaid interest thereon to the
Redemption Date.


 


(e)                                  Any
redemption pursuant to this Section 3.7 shall be made pursuant to the
provisions of Sections 3.1 through 3.6 hereof.


 


(f)                                    The
Securities will not be redeemable at the option of the Company except as set
forth in this Section 3.7. The Company is not, however, prohibited from
acquiring the Securities by means other than a redemption, whether pursuant to
a tender offer, open market transactions or otherwise, so long as the
acquisition does not otherwise violate the terms of this Indenture.


 


ARTICLE IV


 


COVENANTS


 


Section 4.1                                      Payment of Securities


 


(a)                                  The
Company covenants and agrees for the benefit of the Holders of the Securities
that it shall promptly pay the principal of, premium, if any, and interest on
the Securities on the dates and in the manner provided in the Securities, this
Indenture and, in the case of any Additional Interest, the applicable
Registration Rights Agreement. Payments of principal, premium, if any, and
interest on the Securities shall be deemed due for all purposes under this
Indenture whether such payments are due at Stated Maturity, upon redemption,
upon required repurchase pursuant to Section 4.7 or 4.12 hereof,
upon declaration or otherwise. Principal, premium, if any, and interest on the
Securities shall be considered paid on the date due


 


52

















 


if by 11:00 a.m. (New York City time) on such
date the Paying Agent holds in accordance with this Indenture money sufficient
to pay all principal, premium, if any, and interest then due.


 


(b)                                 The
Company will pay, to the extent lawful, interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, at the rate then in effect on the Securities; it will pay, to
the extent lawful, 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
as on overdue principal.


 


(c)                                  All
references in this Indenture, the Securities or the Subsidiary Guarantees to “interest”
shall be deemed to include Additional Interest unless the context otherwise
requires. The Company shall give the Trustee advance written notice of the
amount of any Additional Interest that may be payable with respect to the
Securities.


 


Section 4.2                                      Reports


 


(a)                                  Whether
or not required by the Commission’s rules and regulations, so long as any
Securities are outstanding, the Company will furnish to the Trustee and each
Holder of Securities, within the time periods specified in the Commission’s
rules and regulations:


 


(1)                                  all
quarterly and annual reports that would be required to be filed with the
Commission on Forms 10-Q and 10-K if the Company were required to file such
reports; and


 


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


 


The Company will be deemed to have furnished such reports to the
Trustee and the Holders of Securities if it has filed such reports with the
Commission using the EDGAR filing system and such reports are publicly
available. All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports. Each
annual report on Form 10-K will include a report on the Company’s consolidated
financial statements by the Company’s certified independent accountants. In
addition, the Company will file a copy of each of the reports referred to in
clauses (1) and (2) above with the Commission for public availability within
the time periods specified in the rules and regulations applicable to such
reports (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request.


 


(b)                                 If
at any time the Company is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Company will nevertheless
continue filing the reports specified in clauses (1) and (2) of the preceding
paragraph of this Section 4.2, with the Commission within the time
periods specified above unless the Commission will not accept such a filing. The
Company agrees that it will not take any action for the purpose of causing the
Commission not to accept any such filings. If, notwithstanding the preceding,
the Commission will not accept the Company’s filings for any reason, the
Company will post the reports referred


 


53

















 


to in the preceding paragraph of this Section
4.2 on its website within the time periods that would apply if the Company
were required to file those reports with the Commission.


 


(c)                                  In
addition, the Company and the Guarantors agree that, for so long as any
Securities remain outstanding, if at any time the Company is not required to
file with the SEC the reports required by the preceding paragraphs of this Section
4.2, they will furnish to Holders of Securities and to prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


(d)                                 The
Company and the Guarantors shall also comply with Section 314(a) of the TIA.


 


Section 4.3                                      Incurrence of Indebtedness and Issuance of
Disqualified Stock


 


(a)                                  The
Company will not, and will not permit any of its Restricted 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), other
than Permitted Debt, and the Company shall not issue, and shall not permit any
of its Restricted Subsidiaries to issue, any Disqualified Stock; provided, however, that the Company or any
Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue
shares of Disqualified Stock if the Company’s 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 such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least 2 to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if such additional
Indebtedness had been incurred, or such Disqualified Stock had been issued, as
the case may be, at the beginning of such four-quarter period.


 


(b)                                 The
provisions of paragraph (a) of this Section 4.3 shall not apply to the
incurrence of any of the following items of Indebtedness (collectively, “Permitted
Debt”):


 


(1)                                  the
incurrence by the Company or any Restricted Subsidiary of Indebtedness pursuant
to one or more Credit Facilities; provided,
however, that, immediately after giving effect to any such
incurrence, the aggregate principal amount (or accreted value, as applicable)
of all Indebtedness incurred under this clause (1) and then outstanding does
not exceed the greater of (A) $400 million or (B) 20% of Consolidated Net
Tangible Assets at the time of incurrence;


 


(2)                                  the
incurrence by the Company and the Guarantors of Indebtedness represented by (A)
the Initial Securities and the Subsidiary Guarantees issued on the Issue Date
and (B) any Exchange Securities and Subsidiary Guarantees issued thereafter
pursuant to a Registration Rights Agreement;


 


(3)                                  the
incurrence by the Company or any of its Restricted Subsidiaries of Existing
Indebtedness;


 


54

















 


(4)                                  the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness, the net proceeds of which are applied to refinance
any Indebtedness incurred in respect of any Indebtedness described under
clauses (2), (3), (4), (8) or (11) of this paragraph or incurred pursuant to
the first paragraph of this Section 4.3;


 


(5)                                  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 (A) if the Company or any Guarantor is the obligor and a Restricted
Subsidiary of the Company that is not a Guarantor is the obligee on such
Indebtedness, such Indebtedness will be subordinated to the payment in full of
all Obligations with respect to the Securities and the Subsidiary Guarantees,
as the case may be, and (B) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person other
than the Company or a Restricted Subsidiary of the Company and (ii) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary of the Company shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that is not then permitted by this
clause (5);


 


(6)                                  the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations (including any Acquired Debt), in each case, incurred in connection
with the purchase of, or for the purpose of financing the purchase of, the cost
of construction, improvement or development of, property, plant or equipment
used in the Permitted Business of the Company or a Restricted Subsidiary of the
Company or incurred to extend, refinance, renew, replace, defease or refund any
such purchase price or cost of construction, improvement or development, in an
aggregate principal amount not to exceed $50 million at any time outstanding;


 


(7)                                  the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
consisting of Hedging Obligations entered into in the ordinary course of
business and not for speculative purposes;


 


(8)                                  the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
arising from agreements of the Company or any of its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred in connection with the disposition or
acquisition of any business, assets or a Restricted Subsidiary of the Company
or any business or assets of its Restricted Subsidiaries, other than guarantees
of Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Restricted Subsidiary of the Company or any of its
Restricted Subsidiaries for the purposes of financing such acquisition; provided, however, that (A) such
Indebtedness is not reflected on the balance sheet of the Company or any of its
Restricted Subsidiaries (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause
(A)) and (B) the maximum liability in respect of all such Indebtedness incurred
in connection with a disposition shall at no time exceed the gross proceeds
including noncash proceeds (the Fair Market Value of such noncash proceeds
being measured at the time received and without


 


55

















 


giving effect to any subsequent changes in
value) actually received by the Company and its Restricted Subsidiaries in
connection with such disposition;


 


(9)                                  the
guarantee by the Company or any Restricted Subsidiary of Indebtedness of the
Company or a Restricted Subsidiary of the Company that was permitted to be
incurred by any other provision of this Section 4.3; provided that the guarantee of any
Indebtedness of a Restricted Subsidiary of the Company that ceases to be such a
Restricted Subsidiary shall be deemed a Restricted Investment at the time such
Restricted Subsidiary’s status terminates in an amount equal to the maximum
principal amount so guaranteed, for so long as, and to the extent that, such
guarantee remains outstanding;


 


(10)                            the
issuance by a Restricted Subsidiary of the Company of Disqualified Stock to the
Company or to any of its Restricted Subsidiaries; provided, however,
that any subsequent event or issuance or transfer of any Equity Interests that
results in the owner of such Disqualified Stock ceasing to be the Company or
any of its Restricted Subsidiaries or any subsequent transfer of such preferred
stock to a Person, other than the Company or one of its Restricted Subsidiaries,
shall be deemed to be an issuance of Disqualified Stock by such Subsidiary that
was not permitted by this clause (10);


 


(11)                            the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Acquisition Indebtedness;


 


(12)                            the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
incurred in the ordinary course of business under (A) documentary letters of
credit, or surety bonds or insurance contracts, which are to be repaid in full
not more than one year after the date on which such Indebtedness is originally
incurred to finance the purchase of goods by the Company or a Restricted
Subsidiary of the Company, (B) standby letters of credit, surety bonds or
insurance contracts issued for the purpose of supporting (i) workers’
compensation or similar liabilities of the Company or any of its Restricted
Subsidiaries or (ii) performance, payment, deposit or surety obligations of the
Company or any of its Restricted Subsidiaries and (C) bid, advance payment and
performance bonds and surety bonds or similar insurance contracts for the
Company and its Restricted Subsidiaries, and refinancings thereof; and


 


(13)                            the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
(in addition to Indebtedness permitted by any other provision of this covenant)
in an aggregate principal amount (or accreted value, as applicable) not to
exceed the greater of (A) $25 million at any one time outstanding or (B) 2.5%
of Consolidated Net Tangible Assets as of any date of incurrence after giving
pro forma effect to such incurrence and the application of proceeds therefrom.


 


(c)                                  To
the extent the Company’s Unrestricted Subsidiaries incur Non-Recourse
Indebtedness and any such Indebtedness ceases to be Non-Recourse Indebtedness of
such Unrestricted Subsidiary, then such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of the Company that was
subject to this covenant.


 


56

















 


(d)                                 Neither
the Company nor any Guarantor will incur any Indebtedness (including Permitted
Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor, as the case may be, unless such
Indebtedness is also contractually subordinated in right of payment to the
Securities or the Subsidiary Guarantees, as the case may be, on substantially
identical terms; provided, however,
that no Indebtedness of any Person will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of such Person
solely by virtue of being unsecured.


 


(e)                                  For
purposes of determining compliance with this Section 4.3, in the event
that an item of proposed Indebtedness (including Acquired Debt) meets the
criteria of more than one of the categories of Permitted Debt set forth in Section
4.3(b) or is entitled to be incurred pursuant to Section 4.3(a), the
Company will, in its sole discretion, classify (or later classify or
reclassify) in whole or in part such item of Indebtedness in any manner that
complies with this Section 4.3 and such item of Indebtedness or a
portion thereof may be classified (or later classified or reclassified) in
whole or in part as having been incurred under more than one of the applicable
clauses of Section 4.3(b) or pursuant to Section 4.3(a). Accrual
of interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.3.


 


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


 


Section 4.4                                      Restricted Payments


 


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


 


(1)                                  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


 


57

















 


Company’s or any of its Restricted
Subsidiaries’ Equity Interests in their capacity as such, in each case other
than dividends or distributions declared or paid in Equity Interests (other
than Disqualified Stock) of the Company or declared or paid to the Company or
any of its Restricted Subsidiaries;


 


(2)                                  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 any such Equity Interests owned by
a Restricted Subsidiary of the Company);


 


(3)                                  make
any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value, any Subordinated Obligation, except a payment of
interest or principal at its Stated Maturity; or


 


(4)                                  make
any Investment other than a Permitted Investment (all such payments and other
actions set forth in clauses (1) through (3) above and this clause (4) being
collectively referred to as “Restricted Payments”), unless at the time of and
after giving effect to such Restricted Payment:


 


(A)                              no Default or Event of
Default shall have occurred and be continuing; and


 


(B)                                the Company would, at
the time of such Restricted Payment and after giving pro forma effect thereto
as if such 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 Section
4.3(a); and


 


(C)                                such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company or any of its Restricted Subsidiaries after the Issue Date
(excluding Restricted Payments permitted by clause (2), (3), (4), (5), (6),
(8), (9), (10), (11) or (12) of Section 4.4(b)), is less than the sum
of:


 


(i)                                    50% of the
Consolidated Net Income of the Company for the period (taken as one accounting
period) from July 1, 2007 to the end of the Company’s most recently ended
fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for such
period is a loss, less 100% of such loss), plus


 


(ii)                                 100% of the aggregate
net cash proceeds (other than Designated Proceeds), or the Fair Market Value of
assets or property other than cash, received by the Company from the issue or
sale, in either case, since July 1, 2007 of (I) Equity Interests of the Company
(other than Disqualified Stock), or (II) Disqualified Stock or debt securities
of the Company that have been converted into, or exchanged for, such Equity
Interests, together with the aggregate cash received at the time of such
conversion or exchange, other than


 


58

















 


Equity Interests (or Disqualified Stock or convertible or exchangeable
debt securities) sold to a Restricted Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into or
exchanged for Disqualified Stock, plus


 


(iii)                              in case any Unrestricted
Subsidiary has been redesignated a Restricted Subsidiary pursuant to the terms
of Section 4.9(a) or has been merged or consolidated with or into, or
transfers or otherwise disposes of all of substantially all of its properties
or assets to or is liquidated into, the Company or a Restricted Subsidiary, the
lesser of, at the date of such redesignation, merger, consolidation, transfer,
disposition or liquidation (I) the book value (determined in accordance with
GAAP) of the aggregate Investments made by the Company and its Restricted
Subsidiaries in such Unrestricted Subsidiary (or of the properties or assets
disposed of, as applicable) and (II) the Fair Market Value of such Investment
in such Unrestricted Subsidiary, in each case after deducting any Indebtedness
of such Unrestricted Subsidiary, plus


 


(iv)                             to the extent not already
included in Consolidated Net Income for such period, (I) if any Restricted
Investment that was made by the Company or any Restricted Subsidiary after the
Issue Date is sold for cash or otherwise liquidated or repaid for cash, the
cash return of capital with respect to such Restricted Investment resulting
from such sale, liquidation or repayment (less any out-of-pocket costs incurred
in connection with any such sale) and (II) the net reduction in such Restricted
Investment resulting from payments of interest, dividends, principal repayments
and other transfers and distributions of cash, assets or other property, in an
amount not to exceed the aggregate amount of such Restricted Investment.


 


(b)                                 The
provisions of Section 4.4(a) shall not prohibit:


 


(1)                                  the
payment of any dividend or the consummation of an irrevocable redemption of
Subordinated Obligations within 60 days after the date of the declaration of
such dividend or the delivery of the irrevocable notice of redemption, as the
case may be, if at the date of the declaration or the date on which such
irrevocable notice is delivered, such dividend or redemption would have
complied with the provisions of this Indenture;


 


(2)                                  the
making of any Restricted Payments described in clause (2) or (3) of Section
4.4(a) out of the net cash proceeds (other than Designated Proceeds) of the
substantially concurrent sale or issuance (a sale or issuance will be deemed
substantially concurrent if such Restricted Payment occurs not more than 45
days after such sale or issuance) (other than to a Restricted Subsidiary of the
Company) of Equity Interests of the Company (other than any Disqualified
Stock), provided that the amount
of any such net cash proceeds that are utilized for any such Restricted Payment
shall be excluded from clause (C)(ii) of Section 4.4(a)(4);


 


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(3)                                  the
making of any principal payment on, or the defeasance, redemption, repurchase
or other acquisition of, prior to its Stated Maturity, any Subordinated
Obligation with the net cash proceeds from an incurrence of, or in exchange for
the issuance of, Permitted Refinancing Indebtedness;


 


(4)                                  the
payment of any dividend or distribution by a Restricted Subsidiary of the
Company to the holders of its Equity Interests (other than Disqualified Stock)
on a pro rata basis and the payment of any dividend or distribution by the
Company to the holders of its Disqualified Stock, provided that such Disqualified Stock is issued on or after
the Issue Date in accordance with Section 4.3(a);


 


(5)                                  (A)
the acquisition in open-market purchases of our common stock of the Company for
matching contributions to its employee stock purchase and deferred compensation
plans in the ordinary course of business or (B) the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current or
former officer, employee, consultant or director of the Company (or any of its
Subsidiaries) pursuant to the terms of agreements (including employment
agreements) and plans approved by the Company’s Board of Directors, including
any management equity plan or stock option plan or any other management or
employee benefit plan, agreement or trust, provided,
however, that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests pursuant to this clause (5)
shall not exceed the sum of (x) $5 million in any twelve-month period (with
unused amounts to be carried over into the following twelve-month period), (y)
the aggregate net proceeds received by the Company during such twelve-month
period from the issuance of such Equity Interests (other than Disqualified
Stock) pursuant to such agreements or plans and (z) the net cash proceeds of
key man life insurance received by the Company or its Restricted Subsidiaries
after the Issue Date;


 


(6)                                  (A)
in connection with an acquisition by the Company or any Restricted Subsidiary,
the return of Equity Interests constituting a portion of the purchase
consideration in settlement of indemnification claims or (B) repurchases of
Equity Interests deemed to occur upon the cashless exercise of stock options;


 


(7)                                  repurchases
of Subordinated Obligations at a purchase price not greater than (A) 101% of
the principal amount (or accreted value, if applicable) of such Subordinated
Obligations and accrued and unpaid interest thereon in the event of a Change of
Control or (B) 100% of the principal amount (or accreted value, if applicable)
of such Subordinated Obligations and accrued and unpaid interest thereon in the
event of an Asset Sale, in connection with any change in control offer or asset
sale offer required by the terms of such Subordinated Indebtedness, but only
if:


 


(i)                                          in the case
of a Change of Control, the Company has first complied with and fully satisfied
its obligations under Section 4.12; or


 


(ii)                                       in the case of
an Asset Sale, the Company has complied with and fully satisfied its
obligations in accordance with Section 4.7;


 


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(8)                                  the
payment of reasonable and customary directors’ fees to the members of the
Company’s Board of Directors, provided
that such fees are consistent with past practice or current requirements;


 


(9)                                  the
purchase by the Company of fractional shares arising out of stock dividends,
splits or combinations or business combinations;


 


(10)                            the
declaration and payment of dividends on mandatorily convertible preferred stock
of the Company (other than Disqualified Stock) issued after the Issue Date in
an aggregate amount not to exceed the amount of Designated Proceeds;


 


(11)                            Restricted
Payments consisting of dividends or other distributions on the common stock of
the Company or purchases of its common stock in an aggregate amount of up to
$200 million since the Issue Date; and


 


(12)                            other
Restricted Payments in an aggregate amount since the Issue Date not to exceed
the greater of (A) $25 million or (B) 2.5% of Consolidated Net Tangible Assets
as of the date of making any such Restricted Payment;


 


provided, further,
that, with respect to clauses (2), (3), (5), (6), (7), (8), (10), (11) and (12)
of this Section 4.4(b), no Default or Event of Default shall have
occurred and be continuing.


 


(c)                                  In
determining whether any Restricted Payment is permitted by this Section 4.4,
the Company may allocate or reallocate all or any portion of such Restricted
Payment among clauses (1) through (12) of Section 4.4(b) or among such
clauses and Section 4.4(a), provided
that at the time of such allocation or reallocation, all such Restricted
Payments, or allocated portions thereof, would be permitted under the various
provisions of one or more of clauses (1) through (12) of Section 4.4(b)
and Section 4.4(a). The amount of all Restricted Payments (other than
cash) shall be the Fair Market Value on the date of the transfer, incurrence or
issuance of such non-cash Restricted Payment.


 


Section 4.5                                      Liens


 


(a)                                  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
(other than Permitted Liens) upon any of its property or assets (including
Capital Stock of a Restricted Subsidiary), whether owned on the Issue Date or
acquired after that date, securing any Indebtedness, unless:


 


(1)                                  in
the case of Liens securing Subordinated Obligations of the Company or a
Restricted Subsidiary, the Securities or Subsidiary Guarantees, as applicable,
are contemporaneously secured by a Lien on such property or assets on a senior
basis to the Subordinated Obligations so secured with the same priority that
the Securities or Subsidiary Guarantees, as applicable, have to such
Subordinated Obligations until such time as such Subordinated Obligations are
no longer so secured by a Lien; and


 


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(2)                                  in
the case of Liens securing Senior Indebtedness of the Company or a Restricted
Subsidiary, the Securities or Subsidiary Guarantees, as applicable, are
contemporaneously secured by a Lien on such property or assets on an equal and
ratable basis with the Senior Indebtedness so secured until such time as such
Senior Indebtedness is no longer so secured by a Lien.


 


(b)                                 Upon
the occurrence of an Investment Grade Rating Event but not before then, the
covenant set forth in Section 4.5(c) shall become effective and
shall apply to the Company and its Subsidiaries.


 


(c)                                  If
the Company or any Subsidiary incurs any Indebtedness secured by a Lien (other
than Permitted Liens of the types described in clause (2), (5), (6), (7), (8),
(9), (10), (11), (13), (14), (15), (16) or (17) of the definition of the term “Permitted
Liens” in Section 1.1) on any asset, whether now owned or hereafter
acquired, or if any Subsidiary that is not a Guarantor of the Securities incurs
any Indebtedness of any kind, the Company or such Subsidiary, as the case may
be, will secure the Securities equally and ratably with (or, at its option,
prior to) the Indebtedness so secured until such time as such Indebtedness is
no longer secured by a Lien, or will guarantee the Securities on a full and
unconditional senior basis (if a Subsidiary incurs unsecured Indebtedness), in
each case unless the aggregate amount of all Indebtedness secured by a Lien and
the Attributable Amounts of all Sale/Leaseback Transactions would not exceed
15% of Consolidated Net Tangible Assets.


 


Section 4.6                                      Dividend and Other Payment Restrictions Affecting
Subsidiaries


 


(a)                                  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 of the Company to:


 


(1)                                  (x)
pay dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries on its Capital Stock or (y) pay any Indebtedness owed
to the Company or any of its Restricted Subsidiaries; provided, that the priority of any
preferred stock in receiving dividends or liquidating distributions prior to
the payment of dividends or liquidating distributions on common stock shall not
be deemed to be a restriction on the ability to make distributions on Capital
Stock;


 


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


 


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


 


(b)                                 However,
the restrictions in Section 4.6(a) will not apply to encumbrances
or restrictions existing under or by reason of:


 


(1)                                  any
Credit Facility in effect after the Issue Date to the extent its provisions,
taken as a whole, are no more restrictive with respect to such dividend, distribution
or


 


62

















 


other payment restrictions and loan or
investment restrictions than those contained in the Credit Facilities as in
effect on the Issue Date;


 


(2)                                  this
Indenture, the Securities, the Subsidiary Guarantees or any other indentures
governing debt securities issued by the Company or any Guarantor that are no
more restrictive with respect to such dividend, distribution or other payment
restrictions and loan or investment restrictions than those contained in this
Indenture, the Securities and the Subsidiary Guarantees;


 


(3)                                  any
future Liens that may be permitted to be granted under, or incurred not in
violation of, any other provisions of this Indenture;


 


(4)                                  applicable
law or any applicable rule, regulation or order;


 


(5)                                  any
instrument governing Indebtedness or Capital Stock, or any other agreement
relating to any property or assets, of a Person acquired by the Company or any
of its Restricted Subsidiaries as in effect at the time of such 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 or such Person’s subsidiaries, so acquired, provided, that, in the case of Indebtedness,
such Indebtedness was permitted by the terms of this Indenture to be incurred;


 


(6)                                  restrictions
of the nature described in clause (3) of Section 4.6(a) by reason
of customary non-assignment provisions in contracts, agreements, licenses and
leases entered into in the ordinary course of business;


 


(7)                                  purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (3) of Section 4.6(a)
on the property so acquired;


 


(8)                                  any
restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Restricted Subsidiary pending the
closing of such sale or disposition;


 


(9)                                  agreements
relating to secured Indebtedness otherwise permitted to be incurred pursuant to
Section 4.3, and not in violation of Section 4.5(a), that
limit the right of the debtor to dispose of assets securing such Indebtedness;


 


(10)                            Permitted
Refinancing Indebtedness in respect of Indebtedness referred to in clauses (1),
(2), (5), (7) and (9) of this Section 4.6(b), provided that the restrictions contained
in the agreements governing such Permitted Refinancing Indebtedness are no more
restrictive with respect to such dividend, distribution or other payment
restrictions and loan or investment restrictions than those contained in the
agreements governing the Indebtedness being refinanced;


 


(11)                            provisions
with respect to the disposition or distribution of assets in joint venture
agreements, asset sale agreements, agreements relating to Sale/Leaseback
Transactions,


 


63

















 


stock sale agreements and other similar
agreements entered into in the ordinary course of business;


 


(12)                            encumbrances
or restrictions contained in, or in respect of, Hedging Obligations permitted
under this Indenture from time to time;


 


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


 


(14)                            any
instrument governing Indebtedness of a Foreign Subsidiary; provided that such Indebtedness was
otherwise permitted by the terms of this Indenture to be incurred.


 


Section 4.7                                      Asset Sales


 


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


 


(1)                                  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 (which shall give effect to the assumption by another Person of any
liabilities as provided for in clause (2)(A) of this paragraph and which, in
the case of an Asset Sale involving consideration not exceeding $100 million,
need not be determined by the Board of Directors) of the assets or Equity
Interests issued or sold or otherwise disposed of; and


 


(2)                                  (x)
at least 75% of the consideration received in such Asset Sale is in the form of
cash or Cash Equivalents or (y) the Fair Market Value of all forms of
consideration other than cash or Cash Equivalents received for all Asset Sales
since the Issue Date does not exceed in the aggregate 10% of Consolidated Net
Worth of the Company at the time each determination is made; provided that any of the following items
shall be deemed to be cash and Cash Equivalents for the purposes of this clause
(2):


 


(A)                              the assumption of any
liabilities (as shown on the Company’s or the Restricted Subsidiary’s most
recent balance sheet) of the Company or any Restricted Subsidiary of the
Company (other than liabilities that are by their terms subordinated to
Securities issued under this Indenture or any Subsidiary Guarantee) by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Company or the Restricted Subsidiary from further liability;


 


(B)                                any securities, notes
or other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or the Restricted
Subsidiary into cash or Cash Equivalents within 180 days following their
receipt (to the extent of cash or Cash Equivalents received);


 


(C)                                other assets or rights
used or useful in a Permitted Business, including, without limitation, assets
or Investments of the nature or type described in clause (13) of the definition
of “Permitted Investments” in Section 1.1; and


 


64

















 


(D)                               accounts receivable of a
business retained by the Company or any of its Restricted Subsidiaries following
the sale of such business; provided,
that such accounts receivable are not (i) past due more than 60 days and (ii)
do not have a payment date greater than 90 days from the date of the invoice
creating such accounts receivable;


 


provided, that any
Asset Sale pursuant to a condemnation, appropriation or other similar taking,
including by deed in lieu of condemnation, or pursuant to the foreclosure or
other enforcement of a Lien incurred not in violation of Section 4.5 or
exercise by the related lienholder of rights with respect thereto, including by
deed or assignment in lieu of foreclosure, shall not be required to satisfy the
conditions set forth in clauses (1) and (2) of this paragraph.


 


(b)                                 Within
365 days after the receipt of any Net Proceeds from an Asset Sale, the Company
or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds,
at its option:


 


(1)                                  to
prepay, repay, purchase, repurchase or redeem any Senior Indebtedness of the
Company or any Restricted Subsidiary of the Company;


 


(2)                                  to
acquire a controlling interest in another business or all or substantially all
of the assets or operating line of another business, in each case engaged in a
Permitted Business;


 


(3)                                  to
make capital expenditures; or


 


(4)                                  to
acquire other non-current assets to be used in a Permitted Business, including,
without limitation, assets or Investments of the nature or type described in
clause (13) of the definition of “Permitted Investments” in Section 1.1;


 


provided that the
Company or the applicable Restricted Subsidiary will be deemed to have complied
with clause (2) or (3) of this sentence if, within 365 days of such Asset Sale,
the Company or such Restricted Subsidiary shall have commenced and not
completed or abandoned an expenditure or Investment, or entered into a binding
agreement with respect to an expenditure or Investment, in compliance with
clause (2) or (3), and that expenditure or Investment is substantially
completed within a date one year and six months after the date of such Asset
Sale. Pending the final application of any such Net Proceeds, the Company may
temporarily reduce Indebtedness under any Credit Facility or otherwise expend
or invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales described in this paragraph that
are not applied or invested as provided in the first sentence of this paragraph
shall be deemed to constitute “Excess Asset Sale Proceeds.”


 


(c)                                  When
the aggregate amount of Excess Asset Sale Proceeds exceeds $15 million, the
Company shall make an offer to the Holders of Securities and the holders of any
other Senior Indebtedness that is subject to requirements with respect to the
application of net proceeds from asset sales that are substantially similar to
those contained in this Section 4.7 (an “Asset Sale Offer”) to purchase
on a pro rata basis (with the Excess Asset Sale Proceeds prorated between the
Holders of the Securities and such holders of such other Senior Indebtedness
based upon


 


65

















 


outstanding aggregate principal amounts) the
maximum principal amount of the Securities and such other Senior Indebtedness
that may be purchased or prepaid, as applicable, out of the prorated Excess
Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount thereof (or accreted amount in the case of any Senior
Indebtedness issued with original issue discount) plus accrued and unpaid
interest thereon to the date of purchase (the “Asset Sale Payment”), in
accordance with the procedures set forth in this Section 4.7. To the
extent that the aggregate principal amount of Securities and other Senior
Indebtedness tendered (and electing to be redeemed or repaid, as applicable)
pursuant to an Asset Sale Offer is less than the Excess Asset Sale Proceeds,
the Company and its Restricted Subsidiaries may use any remaining Excess Asset
Sale Proceeds for general corporate purposes and any other purpose not
prohibited by this Indenture. If the aggregate principal amount of the
Securities and such other Senior Indebtedness surrendered by holders thereof
exceeds the amount of the prorated Excess Asset Sale Proceeds, the Company
shall select the Securities and such other Senior Indebtedness to be purchased
on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of
Excess Asset Sale Proceeds shall be reset at zero.


 


(d)                                 When
the Company becomes obligated to make an Asset Sale Offer, the Company will
mail a notice to each Holder describing the transaction or transactions that
constitute the Asset Sale and offering to repurchase Securities on the date
(the “Asset Sale Payment Date”) specified in such notice, which date will be no
earlier than 30 days nor later than 60 days from the date such notice is
mailed, pursuant to the procedures required by this Indenture and described in
such notice.


 


(e)                                  On
the Asset Sale Payment Date, the Company will, to the extent lawful:


 


(1)                                  accept
for payment all Securities or portions thereof properly tendered pursuant to
the Asset Sale Offer, subject to proration based on the amount of Excess Asset
Sale Proceeds pursuant to clause (c) above of this Section 4.7;


 


(2)                                  deposit
with the Paying Agent an amount equal to the amount of Excess Asset Sale
Proceeds that, after giving effect to proration with holders of other Senior
Indebtedness pursuant to clause (c) above of this Section 4.7, is
allocable to the Securities or portions thereof so tendered (or, if less, the
aggregate Asset Sale Payment for all Securities validly tendered and not
withdrawn); and


 


(3)                                  deliver
or cause to be delivered to the Trustee the Securities so accepted together
with an Officers’ Certificate stating the aggregate principal amount of
Securities or portions thereof being purchased by the Company.


 


(f)                                    The
Paying Agent will promptly mail (or cause to be transferred through the
facilities of the Depositary) to each Holder of Securities so tendered and not
withdrawn and accepted for payment in accordance with this Section 4.7,
the Asset Sale Payment for such tendered Securities, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Security equal in principal amount to any unpurchased portion
of the Securities surrendered, if any, by such Holder; provided that each


 


66

















 


such new Security will be in a minimum
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.


 


(g)                                 If
the Asset Sale Payment Date is on or after an interest payment record date and
on or before the related Interest Payment Date, any accrued and unpaid interest
will be paid to the Person in whose name a purchased Security is registered on
such record date, and no other interest will be payable to Holders who tender
Securities pursuant to the Asset Sale Offer.


 


(h)                                 The
Company will publicly announce the results of the Asset Sale Offer on or as
soon as practicable after the date such Asset Sale Offer is completed.


 


(i)                                     The
Company will comply with the requirements of Rule 14e-l under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Section 4.7, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.7 by virtue of the Company’s
compliance with such securities laws or regulations.


 


Section 4.8                                      Transactions with Affiliates


 


(a)                                  The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, make any payment to, or sell, lease, transfer or
otherwise dispose of any 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 of any such Person (each of the foregoing, an “Affiliate
Transaction”) if such Affiliate Transaction involves aggregate consideration in
excess of $1 million, unless:


 


(1)                                  such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that could have been obtained in
a transaction by the Company or such Restricted Subsidiary with an unrelated
Person or, if no comparable transaction is available with which to compare such
Affiliate Transaction, such Affiliate Transaction is otherwise fair to the
Company or the relevant Restricted Subsidiary from a financial point of view,
evidenced (if required by clause (2) of this Section 4.8(a)) by the
Officers’ Certificate provided for in clause (2) of this Section 4.8(a);
and


 


(2)                                  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 at least $20 million but equal to or less
than $40 million, an Officers’ Certificate certifying that such Affiliate
Transaction complies with clause (1) above; and


 


(B)                                with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $40 million, a resolution of its Board of
Directors set forth in an Officers’ Certificate certifying that


 


67

















 


such Affiliate Transaction complies with clause (1) of this Section 4.8(a)
and that such Affiliate Transaction has been approved by a majority of the
disinterested members of its Board of Directors;


 


(b)                                 None
of the following shall be deemed to be Affiliate Transactions and therefore
shall not be subject to the provisions of Section 4.8(a):


 


(1)                                  any
employment, equity award, equity option or equity appreciation agreement or
plan, agreement or other similar compensation plan or arrangement entered into
by the Company or any of its Restricted Subsidiaries in the ordinary course of
its business;


 


(2)                                  transactions
between or among (A) the Company and one or more Restricted Subsidiaries and
(B) any Restricted Subsidiaries;


 


(3)                                  the
performance of any written agreement in effect on the Issue Date, as such
agreement may be amended, modified or supplemented from time to time; provided, however,
that any amendment, modification or supplement entered into after the Issue
Date will be permitted only to the extent that its terms do not adversely
affect the rights of any Holders of the Securities (as determined in good faith
by an Officer of the Company, and, if such amendment, modification or
supplement involves aggregate consideration in excess of $40 million, as
determined in good faith by the Board of Directors) as compared to the terms of
the agreement in effect on the Issue Date;


 


(4)                                  loans
or advances to officers, directors and employees for moving, entertainment and
travel expenses, drawing accounts and similar expenditures and other purposes,
in each case, in the ordinary course of business;


 


(5)                                  maintenance
in the ordinary course of business of customary benefit programs or
arrangements for employees, officers or directors, including vacation plans,
health and life insurance plans, deferred compensation plans and retirement or
savings plans and similar plans;


 


(6)                                  fees
and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any of its Restricted
Subsidiaries in their capacity as such, to the extent such fees and
compensation are reasonable and customary;


 


(7)                                  sales
of Equity Interests of the Company (other than Disqualified Stock) to
Affiliates of the Company or any of its Restricted Subsidiaries;


 


(8)                                  Restricted
Payments that are permitted by Section 4.4; and


 


(9)                                  any
transactions between the Company or any Restricted Subsidiary and any Person, a
director of which is also a director of the Company or a Restricted Subsidiary;
provided that such director
abstains from voting as a director of the Company or the Restricted Subsidiary,
as applicable, in connection with the approval of the transaction.


 


68

















 


Section 4.9                                      Designation of Restricted and Unrestricted
Subsidiaries


 


(a)                                  The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if:


 


(1)                                  immediately
after giving effect to such designation, the Company could incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
under Section 4.3(a) or the Fixed Charge Coverage Ratio of the
Company immediately after giving effect to such designation would not be less
than the Fixed Charge Coverage Ratio of the Company immediately prior to such
designation;


 


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


 


(3)                                  the
Company certifies that such designation complies with this Section. Any such
designation by the Board of Directors shall be evidenced by the Company
promptly filing with the Trustee a copy of the resolution giving effect to such
designation and an Officers’ Certificate certifying that such designation
complied with the preceding provisions.


 


(b)                                 The
Board of Directors may designate any Subsidiary of the Company to be an
Unrestricted Subsidiary under the circumstances and pursuant to the
requirements described in the definition of “Unrestricted Subsidiary” set forth
in Section 1.1. For purposes of making the determination as to
whether such designation would be made in compliance with this Section, 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 such designation and will reduce the
amount available for Restricted Payments under Section 4.4(a). All
such outstanding Investments will be deemed to constitute Investments in an
amount equal to the greater of (1) the net book value (determined in accordance
with GAAP) of such Investments at the time of such designation and (2) the Fair
Market Value of such Investments at the time of such designation.


 


Section 4.10                                Additional Subsidiary Guarantees


 


If, after the Issue Date, any Restricted Subsidiary (other than a
Foreign Subsidiary) of the Company that is not already a Guarantor (whether or
not acquired or created by the Company or another Restricted Subsidiary after
the Issue Date) incurs any Indebtedness, or guarantees any other Indebtedness
of the Company or a Guarantor, in either case in excess of a De Minimis Amount,
then the Company shall cause such Restricted Subsidiary to become a Guarantor
by executing a supplemental indenture substantially in the form of Exhibit E
hereto and delivering it to the Trustee within 180 days of the date on which it
incurred or guaranteed such Indebtedness, as the case may be.


 


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Section 4.11                                [Intentionally Omitted.]


 


Section 4.12                                Change of Control


 


(a)                                  If
a Change of Control occurs, each Holder of Securities will have the right to
require the Company to repurchase all or any part (equal to $2,000 or an
integral multiple of $1,000 in excess thereof) of that Holder’s Securities
pursuant to the offer described below (the “Change of Control Offer”) at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest thereon to the date of purchase (the “Change
of Control Payment”). Within 30 days following any Change of Control, the
Company will mail to each Holder of Securities a notice describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase the Securities on the date specified in such notice, which date
shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the “Change of Control Payment Date”), pursuant to the
procedures required by this Section 4.12 and described in such notice.


 


(b)                                 On
the Change of Control Payment Date, the Company will, to the extent lawful:


 


(1)                                  accept
for payment all Securities or portions thereof properly tendered pursuant to
the Change of Control Offer;


 


(2)                                  deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Securities or portions thereof so tendered; and


 


(3)                                  deliver
or cause to be delivered to the Trustee the Securities so accepted together
with an Officers’ Certificate stating the aggregate principal amount of
Securities or portions thereof being purchased by the Company.


 


(c)                                  The
Paying Agent will promptly mail (or cause to be transferred through the
facilities of the Depositary) to each Holder of Securities so tendered and not
withdrawn the Change of Control Payment for such tendered Securities, and the
Trustee will promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any, by such Holder; provided that each such new Security will
be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in
excess thereof. The Trustee will notify the Registrar of the issuance of the
new Security.


 


(d)                                 If
the Change of Control Payment Date is on or after an interest payment record
date and on or before the related interest payment date, any accrued and unpaid
interest will be paid to the Person in whose name a Security is registered at
the close of business on such record date, and no other interest will be
payable to Holders who tender pursuant to the Change of Control Offer.


 


(e)                                  The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.


 


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(f)                                    The
provisions described above in this Section that require the Company to make a
Change of Control Offer following a Change of Control will be applicable regardless
of whether or not any other provisions of this Indenture are applicable.


 


(g)                                 The
Company will not be required to make a Change of Control Offer upon a Change of
Control if 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
Section applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change
of Control Offer. A Change of Control Offer may be made with respect to the
Securities in advance of a Change of Control, and conditional upon the
occurrence of such Change of Control, if a definitive agreement for the Change
of Control is in place at the time of making the Change of Control Offer.


 


(h)                                 The
Company will comply with the requirements of Rule 14e-l under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Section 4.12, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 4.12 by virtue of the Company’s
compliance with such securities laws or regulations.


 


Section 4.13                                Maintenance of Office or Agency for Registration of
Transfer, Exchange and Payment of Securities


 


So long as any of the Securities shall remain outstanding, the Company
will, in accordance with Section 2.3 hereof, maintain an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
or the Registrar) in the continental United States where the Securities may be
surrendered for exchange or registration of transfer as provided in this
Indenture, where notices and demands to or upon the Company in respect to the
Securities may be served, and where the Securities may be presented or
surrendered for payment. The Company may also from time to time designate one
or more other offices or agencies in the continental United States where
Securities may be presented or surrendered for any and all such purposes and
may from time to time rescind such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation under Section 2.3
to maintain an office or agency in New York, New York where any Definitive
Securities may be presented or surrendered for payment. The Company will give
to Trustee prompt written notice of the location of any such office or agency
and of any change of location thereof. In case the Company shall fail to
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, such surrenders,
presentations and demands may be made and notices may be served at the
designated Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee its agent to receive at the aforesaid office all such
surrenders, presentations, notices and demands.


 


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Section 4.14                                [Intentionally Omitted.]


 


Section 4.15                                Provision as to Paying Agent


 


(a)                                  If
the Company shall appoint a Paying Agent other than the Trustee, in accordance
with the terms of this Indenture, it will cause such Paying Agent to execute
and deliver to the Trustee an instrument in which such Agent shall undertake,
subject to the provisions of this Section 4.15:


 


(1)                                  that
it will hold all sums held by it as such agent for the payment of the principal
of, premium, if any, or interest on the Securities (whether such sums have been
paid to it by the Company or by any other obligor on the Securities) in trust
for the benefit of the Holders of the Securities and will notify the Trustee of
the receipt of sums to be so held;


 


(2)                                  that
it will give the Trustee notice of any failure by the Company (or by any other
obligor on the Securities) to make any payment of the principal of, premium, if
any, or interest on the Securities when the same shall be due and payable;


 


(3)                                  that
it will at any time during the continuance of any Event of Default specified in
Section 6.1, upon the written request of the Trustee, deliver to the
Trustee all sums so held in trust by it; and


 


(4)                                  that
it will acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities of
such Paying Agent.


 


(b)                                 If
the Company shall not act as its own Paying Agent, it will, by 11:00 a.m. (New
York City time) on the due date of the principal of or premium, if any, or
interest on any Securities, deposit with such Paying Agent a sum in same day
funds sufficient to pay the principal of, premium, if any, or interest so
becoming due, such sum to be held in trust for the benefit of the Holders of
Securities entitled to such principal of or premium, if any, or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.


 


(c)                                  If
the Company shall act as its own Paying Agent, it will, by 11:00 a.m. (New York
City time) on each due date of the principal of or premium, if any, or interest
on the Securities, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto, a sum sufficient to pay such principal or premium
or interest so becoming due and will notify the Trustee of any failure to take
such action.


 


(d)                                 Anything
in this Section 4.15 to the contrary notwithstanding, the Company may,
at any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Paying Agent
for delivery to the Trustee all sums held in trust by it, as required by this Section
4.15, such sums to be delivered by the Paying Agent to the Trustee to be
held by the Trustee upon the trusts herein contained.


 


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(e)                                  Anything
in this Section 4.15 to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section 4.15 is subject to the
provisions of Section 8.4 and Section 8.6.


 


Section 4.16                                Maintenance of Corporate Existence


 


So long as any of the Securities shall remain outstanding, the Company
will at all times (except as otherwise provided or permitted in Article V
of this Indenture) do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.


 


Section 4.17                                Compliance Certificate


 


(a)                                  The
Company and the Guarantors shall deliver to the Trustee within 90 days after
the end of each fiscal year of the Company ending after the Issue Date a
statement (which need not be an Officers’ Certificate) signed by the principal
executive officer, the principal accounting officer or the principal financial
officer of each of the Company and the Guarantors, stating that a review of the
activities of the Company and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether each of the Company and the Guarantors has
performed its obligations under this Indenture, and further stating whether or
not the signers know of any Default or Event of Default that occurred during
such period. If they do, the certificate shall describe such Default or Event
of Default, its status and what action the Company is taking or proposes to
take with respect thereto.


 


(b)                                 So
long as any of the Securities are outstanding, the Company will deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event of
Default, an Officers’ Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.


 


Section 4.18                                Taxes


 


The Company will pay, and will cause each of its Significant
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment would not
have a material adverse effect on the Company and its Restricted Subsidiaries,
taken as a whole.


 


Section 4.19                                Stay, Extension and Usury Laws


 


The Company covenants (to the extent that it may lawfully do so) that
it will 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 (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any


 


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power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.


 


Section 4.20                                Termination of Certain Covenants


 


Upon the occurrence of an Investment Grade Rating Event, each of the
covenants set forth in Sections 4.3, 4.4, 4.5(a) and 4.6
through 4.12 and in Section 5.1 (except for clause (1) of Section
5.1(a)) and clause (6) of Section 6.1 will cease to apply to the
Company and its Subsidiaries, as the case may be, and will no longer have
effect. Instead, the covenant set forth in Section 4.5(c) will thereupon
apply to the Company and its Subsidiaries.


 


ARTICLE V


 


SUCCESSOR COMPANY


 


Section 5.1                                      Merger, Consolidation or Sale of Assets


 


(a)                                  The
Company may not: (1) consolidate or merge with or into another Person; or (2)
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company and its Restricted Subsidiaries taken
as whole, in one or more related transactions, to another Person, unless:


 


(1)                                  the
Company is the resulting, transferee or surviving Person or the resultant,
transferee or surviving Person (if other than the Company) is a corporation,
limited liability company or limited partnership organized and existing under
the laws of the United States or any state thereof or the District of Columbia
and such resulting, transferee or surviving Person assumes, pursuant to a
supplemental indenture and other documentation in form and substance reasonably
satisfactory to the Trustee, all of the obligations and covenants of the
Company under this Indenture, the Securities and, if then in effect, under any
Registration Rights Agreement; provided,
that unless such resulting, transferee or surviving Person is a corporation, a
corporate co-issuer of the Securities will be added to this Indenture by such
supplemental indenture;


 


(2)                                  immediately
before and after such transaction no Default or Event of Default has occurred
and is continuing; and


 


(3)                                  except
in the case of a consolidation or merger of the Company with or into a
Restricted Subsidiary, or a sale, assignment, transfer, conveyance or other
disposition of properties or assets to the Company or a Restricted Subsidiary,
either:


 


(A)                              immediately after giving
pro forma effect to such transaction as if such transaction had occurred at the
beginning of the applicable four-quarter period, the Company or the resultant,
transferee or surviving Person (if other than the Company) would have a Fixed
Charge Coverage Ratio that is not less than the Fixed Charge Coverage Ratio of
the Company immediately prior to such transaction;


 


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(B)                                immediately after
giving pro forma effect to such transaction as if such transaction had occurred
at the beginning of the applicable four-quarter period, the Company or the
resultant transferee or surviving Person (if other than the Company) would be
able to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 4.3(a); or


 


(C)                                immediately after
giving pro forma effect to such transaction, the Consolidated Net Worth of the
Company or the resultant, transferee or surviving Person (if other than the
Company) would be not less than the Consolidated Net Worth of the Company
immediately prior to such transaction.


 


(b)                                 In
addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.


 


Section 5.2                                      Successor Substituted


 


Upon any consolidation or merger, or any sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the properties
or assets of the Company and its Restricted Subsidiaries taken as a whole in
accordance with Section 5.1 hereof, the successor formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, conveyance or other disposition is made shall succeed to,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor had been named as the Company herein
and shall be substituted for the Company (so that from and after the date of
such consolidation, merger, sale, assignment, transfer, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” shall
refer instead to the successor and not to the predecessor); and thereafter, if
the Company is dissolved following a disposition of all or substantially all of
the properties or assets of the Company and its Restricted Subsidiaries taken
as a whole in accordance with this Indenture, it shall be discharged and
released from all obligations and covenants under this Indenture and the
Securities.


 


ARTICLE VI


 


DEFAULTS AND REMEDIES


 


Section 6.1                                      Events of Default


 


(a)                                  Each
of the following is an “Event of Default”:


 


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


 


(2)                                  default
in the payment when due of the principal of, or premium, if any, on the
Securities;


 


(3)                                  failure
by the Company or any of its Restricted Subsidiaries to comply with Section
4.12 or 5.1 hereof for 30 days after receipt of written notice
specified in Section 6.1(b) below;


 


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(4)                                  failure
by the Company or any of its Restricted Subsidiaries for 60 days after receipt
of written notice specified in Section 6.1(b) below to comply with
any of its other agreements contained in this Indenture or the Securities
(other than a failure that is subject to clause (1), (2) or (3) of this Section
6.1(a));


 


(5)                                  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
such Indebtedness or guarantee now exists, or is created after the Issue Date,
if that default:


 


(A)                             is caused by a failure to
pay principal of, or premium, if any, or interest on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness (a “Payment
Default”); or


 


(B)                               results in the
acceleration of such Indebtedness prior to its express maturity;


 


and, in each case, the principal amount of any such 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, aggregates without duplication $30 million or more;


 


(6)                                  failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $30 million (excluding amounts covered by insurance),
which judgments are not paid, discharged or stayed for a period of 60 days;


 


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


 


(8)                                  (A)                              the
Company or a Significant Subsidiary or a group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:


 


(i)                                     commences a
voluntary case or proceeding;


 


(ii)                                  consents to the entry
of an order for relief against it in an involuntary case or proceeding in which
it is a debtor;


 


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


 


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


 


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(v)                                 consents to the
institution of a bankruptcy or an insolvency proceeding against it;


 


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


 


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


 


(i)                                          is for relief
against the Company or any Significant Subsidiary or a group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary in an
involuntary case in which it is a debtor;


 


(ii)                                       appoints a
Custodian of the Company or any Significant Subsidiary or a group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary or
for any substantial part of its property; or


 


(iii)                                    orders the winding
up or liquidation of the Company or any Significant Subsidiary or a group of
Subsidiaries that, taken together would constitute a Significant Subsidiary;


 


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


 


(b)                                 However,
a Default under clauses (3) and (4) of Section 6.1(a) will not
constitute an Event of Default until the Trustee or the Holders of at least 25%
in principal amount of the outstanding Securities notify the Company of the
Default and the Company does not cure such Default within the time specified in
clauses (3) and (4) of Section 6.1(a) after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a “Notice of Default.”


 


(c)                                  Whether
or not a group of Subsidiaries would constitute, when taken together, a
Significant Subsidiary will be determined, for purposes of Section 6.1(a),
on the basis of the latest available consolidated financial statements of the
Company and its Subsidiaries.


 


Section 6.2                                      Acceleration of Maturity; Rescission and Annulment


 


(a)                                  If
an Event of Default (other than an Event of Default described in clause (8) of Section
6.1(a)) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the outstanding Securities
by notice to the Company and the Trustee, may declare the principal of,
premium, if any, and accrued and unpaid interest, if any, on all the Securities
to be due and payable. Upon such a declaration, such principal, premium and
accrued and unpaid interest will be due and payable immediately. If an Event of
Default described in clause (8) of Section 6.1(a) occurs and is
continuing, the principal of, premium, if any, and accrued and unpaid interest
on all the Securities will become and be immediately due and payable without
any further action or notice on the part of the Trustee or any Holders. The
Holders of a majority in outstanding principal amount of the Securities by
notice to the Trustee


 


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may on behalf of the Holders of all the
Securities rescind any such acceleration with respect to the Securities and its
consequences if (1) rescission would not conflict with any judgment or decree
of a court of competent jurisdiction and (2) all existing Events of Default,
other than the nonpayment of the principal of, premium, if any, and interest on
the Securities that have become due solely by such declaration of acceleration,
have been cured or waived.


 


(b)                                 In
the case of an Event of Default specified in clause (5) of Section 6.1(a),
such Event of Default and all consequences thereof (excluding, however, any
resulting payment default) will be annulled, waived and rescinded with respect
to the Securities, automatically and without any action by the Trustee or the
Holders of the Securities, if within 60 days after such Event of Default first
arose the Company delivers an Officers’ Certificate to the Trustee stating that
(1) the Indebtedness or guarantee that is the basis for such Event of Default
has been paid or discharged, (2) the holders of the Indebtedness have rescinded
or waived the acceleration giving rise to such Event of Default or (3) the
default that is the basis for such Event of Default has been otherwise cured; provided, however,
that in no event shall an acceleration of the principal amount of the
Securities pursuant to Section 6.2(a) be annulled, waived or rescinded
upon the happening of any such events.


 


Section 6.3                                      Other Remedies


 


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


 


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


 


Section 6.4                                      Waiver of Past Defaults


 


The Holders of a majority in outstanding principal amount of the
Securities, by notice to the Trustee may on behalf of the Holders of all the
Securities waive an existing Default or Event of Default and its consequences
hereunder except a Default or Event of Default in the payment of the principal
of, premium, if any, or interest on a Security. When a Default or Event of
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.


 


Section 6.5                                      Control by Majority


 


The Holders of a majority in outstanding principal amount of the
Securities have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
or, subject


 


78

















 


to Section 7.1 hereof,
that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability; provided, however, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Subject to Section 7.1, prior to taking any action
hereunder, the Trustee shall be entitled to indemnification reasonably
satisfactory to it against all loss, liability and expense caused by taking or
not taking such action.


 


Section 6.6                                      Limitation on Suits


 


(a)                                  Except
to enforce the right to receive payment of principal, premium (if any) or
interest when due, a Holder may not pursue any remedy with respect to this
Indenture, the Securities or the Subsidiary Guarantees unless:


 


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


 


(2)                                  Holders
of at least 25% in outstanding principal amount of the Securities have made a
written request to the Trustee to pursue the remedy;


 


(3)                                  such
Holder or Holders have furnished the Trustee reasonable security or indemnity
against any loss, liability or expense;


 


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


 


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


 


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


 


Section 6.7                                      Rights of Holders to Receive Payment


 


Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, and interest on the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.


 


Section 6.8                                      Collection Suit by Trustee


 


If an Event of Default specified in Section 6.1(a)(1) or Section
6.1(a)(2) hereof occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company or any
Guarantor for the whole amount then due and owing (together with interest on
any unpaid interest to the extent lawful) and the amounts provided for in Section
7.7


 


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hereof to cover the costs and
expenses of collection, including the reasonable compensation, disbursement and
advances of the Trustee, its agents and counsel.


 


Section 6.9                                      Trustee May File Proofs of Claim


 


The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Holders allowed in any judicial proceedings relative to the Company or any
Guarantor or their respective creditors or properties and, unless prohibited by
law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the compensation,
expenses, disbursements and advances of the Trustee, its agents and its
counsel, and any other amounts due the Trustee under Section 7.7 hereof.


 


Section 6.10                                Priorities


 


(a)                                  If
the Trustee collects any money or property pursuant to this Article VI,
it shall pay out the money or property in the following order:


 


First: costs and expenses of collection,
including all sums paid or advanced by the Trustee hereunder and the
compensation, expenses and disbursements of the Trustee, its agents, and
counsel and all other amounts due to the Trustee under Section 7.7
hereof;


 


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


 


Third: to the Company.


 


(b)                                 The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and amount to be paid.


 


Section 6.11                                Undertaking for Costs


 


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


 


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a suit by a Holder pursuant to Section
6.7 hereof or a suit by Holders of more than 10% in outstanding principal
amount of the Securities.


 


ARTICLE VII


 


TRUSTEE


 


Section 7.1                                      Duties of Trustee


 


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


 


(b)                                 Except
during the continuance of an Event of Default: (i) the Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and (ii) 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, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture.


 


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


 


(1)                                  this
paragraph does not limit the effect of Section 7.1(b) hereof;


 


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


 


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


 


(d)                                 Every
provision of this Indenture that in any way relates to the Trustee is subject
to Sections 7.1(a), 7.1(b) and 7.1(c) hereof.


 


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


 


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


 


(g)                                 No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that


 


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repayment of such funds or security or
indemnity satisfactory to it against such risk or liability is not reasonably
assured to it.


 


Section 7.2                                      Rights of Trustee.


 


(a)                                  The
Trustee may rely on 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 the document.


 


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


 


(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 which it believes to be authorized or within its rights or powers
conferred upon it by this Indenture;
provided, however, that the Trustee’s conduct does not constitute
willful misconduct or negligence.


 


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


 


(f)                                    Except
for (i) a default under Section 6.1(a)(1) or Section 6.1(a)(2)
hereof, or (ii) any other event of which a Trust Officer has actual knowledge
and which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under this Indenture, the Trustee shall
not be deemed to have notice of any default or event unless specifically
notified in writing of such event by the Company or any Holder of the
Securities.


 


(g)                                 The
Trustee shall have no obligation to ascertain whether or not the Company is
obligated at any time to offer to purchase the Securities pursuant to Section
4.7 or Section 4.12 hereof, and at all times the Trustee may
conclusively presume, in the absence of written notice to the contrary from the
Company or an order from a court of competent jurisdiction, that no such
obligation exists.


 


Section 7.3                                      Individual Rights of Trustee


 


The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest (as defined in
the TIA) after a Default has occurred and is continuing, it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as Trustee
or resign. The Trustee is also subject to Sections 7.10 and 7.11
hereof.


 


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Section 7.4                                      Trustee’s Disclaimer


 


The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company’s use of the proceeds from the Securities, it
shall not be responsible for the use or application of any money received by
any Paying Agent (other than itself as Paying Agent), and it shall not be
responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Securities or in the
Securities other than the Trustee’s certificate of authentication.


 


Section 7.5                                      Notice of Defaults


 


If a Default or Event of Default occurs and is continuing and if a
Trust Officer has actual knowledge thereof, the Trustee shall mail to each
Holder 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 relating to payment of
principal of, premium, if any, or interest on, any Security (including payments
pursuant to the redemption or required repurchase provisions of such Security),
the Trustee may withhold the notice if and so long as its board of directors,
the Executive Committee of its board of directors or a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Holders.


 


Section 7.6                                      Reports by Trustee to Holders


 


(a)                                  Within
60 days after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report that complies
with Trust Indenture Act Section 313(a) (but if no event described in Trust
Indenture Act §313(a) has occurred within the 12 months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with Trust
Indenture Act Section 313(b). The Trustee shall also transmit by mail all
reports required by Trust Indenture Act Section 313(c).


 


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


 


Section 7.7                                      Compensation and Indemnity


 


(a)                                  The
Company shall pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for its services, which may be set forth
in a separate fee agreement between the Trustee and the Company. 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 upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, costs of preparing and reviewing reports, certificates and other
documents, costs of preparation and mailing of notices to Holders and
reasonable costs of counsel retained by the Trustee in connection with the
delivery of an Opinion of Counsel or otherwise, in addition to the compensation
for its services. Such expenses shall include the 


 


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reasonable compensation and expenses,
disbursements and advances of the Trustee’s agents and counsel. The Company
shall indemnify and hold harmless the Trustee (in its individual and trustee
capacities) and its officers, directors and agents against any and all loss,
liability, claims, action, suit, cost or expense (including reasonable
attorneys’ fees) of any kind and nature whatsoever incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 7.7) and of defending itself against any claims
(whether asserted by any Holder, the Company or otherwise). 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 hereunder. The Company shall defend the claim and the Trustee may
have separate counsel and the Company shall pay the fees and expenses of such
counsel. The Company is not required to reimburse any expense or indemnify
against any loss, liability, claim, suit, cost or expense incurred by the
Trustee through the Trustee’s own willful misconduct or negligence.


 


(b)                                 To
secure the Company’s payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of, premium (if any) and interest on particular Securities.


 


(c)                                  The
Company’s payment obligations pursuant to this Section 7.7 shall survive
the discharge of this Indenture and the resignation or removal of the Trustee. When
the Trustee incurs expenses after the occurrence of a Default specified in Section
6.1(a)(8) hereof with respect to the Company, the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.


 


Section 7.8                                      Replacement of Trustee


 


(a)                                  A
resignation or removal of the Trustee and appointment of a successor Trustee
will become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.8.


 


(b)                                 The
Trustee may resign at any time by so notifying the Company. The Holders of a
majority in outstanding principal amount of the Securities may remove the
Trustee by so notifying the Trustee and the Company and may appoint a successor
Trustee. The Company may remove the Trustee if: (i) the Trustee fails to comply
with Section 7.10 hereof; (ii) the Trustee is adjudged bankrupt or
insolvent; (iii) a Custodian or other public officer takes charge of the
Trustee or its property; or (iv) the Trustee otherwise becomes incapable of
acting.


 


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


 


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(d)                                 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 the Holders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.7
hereof.


 


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


 


(f)                                    If
the Trustee fails to comply with Section 7.10 hereof after written
notice thereto, the Holders of at least 10% in principal amount of the then
outstanding Securities may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


(g)                                 Notwithstanding
the replacement of the Trustee pursuant to this Section 7.8, the Company’s
obligations under Section 7.7 hereof shall continue for the benefit of
the retiring Trustee.


 


Section 7.9                                      Successor Trustee by Merger


 


(a)                                  If
the Trustee consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.


 


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


 


Section 7.10                                Eligibility; Disqualification


 


The Trustee shall at all times satisfy the requirements of Trust
Indenture Act Section 310(a). There shall at all times be a Trustee hereunder
that is a corporation 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 million


 


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as set forth in its most recent
published annual report of condition. The Trustee shall comply with Trust
Indenture Act Section 310(b).


 


Section 7.11                                Preferential Collection of Claims Against Company


 


The Trustee shall comply with Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated.


 


ARTICLE VIII


 


DISCHARGE OF INDENTURE; DEFEASANCE


 


Section 8.1                                      Discharge of Liability on Securities; Defeasance


 


(a)                                  Subject
to Section 8.1(e) hereof, when (1)(x) the Company delivers to the
Trustee all outstanding Securities (other than Securities replaced pursuant to Section
2.7 hereof) for cancellation or (y) all outstanding Securities not
theretofore delivered for cancellation have become due and payable at their
scheduled maturity or (z) all outstanding Securities not theretofore delivered
for cancellation will become due and payable within one year by reason of the
giving of notice of redemption in accordance with Article III hereof or
otherwise, (2) the Company irrevocably deposits or causes to be deposited with the
Trustee as trust funds in trust solely for the benefit of the Holders money in
U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient without consideration of any reinvestment of
interest to pay and discharge the entire Indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation for principal, premium,
if any, and accrued interest to the date of Stated Maturity or redemption, (3)
no Default has occurred and is continuing on the date of such deposit or shall
occur as a result of such deposit (other than a Default resulting from the
borrowing of funds applied to such deposit), and such deposit will not result
in a breach or violation of, or constitute a default under, any other material
instrument to which the Company is a party or by which the Company is bound,
(4) the Company has paid or caused to be paid all sums then payable by it under
this Indenture and (5) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of such Securities at
Stated Maturity or the Redemption Date, as the case may be, then the Trustee
shall acknowledge satisfaction and discharge of this Indenture and the
obligations of the Company and the Guarantors under the Securities and the
Subsidiary Guarantees, on demand of the Company (accompanied by an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this Indenture
have been complied with) and at the cost and expense of the Company.


 


(b)                                 Subject
to Section 8.2 hereof, the Company at its option at any time may
terminate (1) all its obligations, except as specified in Section 8.1(e)
hereof, under the Securities and this Indenture and all obligations of the
Guarantors with respect to their Subsidiary Guarantees (“legal defeasance
option”), and after giving effect to such legal defeasance, any omission to
comply with such obligations shall no longer constitute a Default or Event of
Default or (2) its obligations under Section 4.2,  Section 4.3, Section 4.4, Section 4.5, Section
4.6,  Section 4.7,


 


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Section 4.8, Section
4.9, Section 4.10, Section 4.12, and Section 4.18
hereof, except to the extent such obligations are imposed by Section 318(c) of
the Trust Indenture Act, and Section 5.1(a)(2) and (3)
hereof, and 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 Section,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document and such omission to comply with such
Sections shall no longer constitute a Default or an Event of Default under Section 6.1(a)(3)
(solely as it relates to Section 4.12 or Section 5.1(a)(2) or (3)
hereof), Section 6.1(a)(4), Section 6.1(a)(5) or Section
6.1(a)(6) hereof or (with respect only to Significant Subsidiaries) Section
6.1(a)(8) hereof, and the events specified in such Sections shall no longer
constitute an Event of Default (this clause (2) being referred to as the “covenant
defeasance option”), but otherwise the remainder of this Indenture and the
Securities shall be unaffected thereby. The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option or its covenant
defeasance option, each Guarantor shall be released from its obligations with
respect to its Subsidiary Guarantee as provided in Section 10.9(b)
hereof.


 


(c)                                  If
the Company exercises its legal defeasance option, payment of the Securities
may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.1(a)(3)
(solely as it relates to Section 4.12 or Section 5.1(a)(2)
or (3)), Section 6.1(a)(4), Section 6.1(a)(5), Section
6.1(a)(6) or (with respect only to Significant Subsidiaries) Section
6.1(a)(8) hereof.


 


(d)                                 Upon
satisfaction of the conditions set forth herein and upon request of the Company,
the Trustee shall acknowledge in writing the discharge of those obligations
that the Company terminates.


 


(e)                                  Notwithstanding
the provisions of Section 8.1(a) and Section 8.1(b) hereof, the
obligations of the Company in Section 2.3, Section 2.5, Section
2.6, Section 2.7, Section 2.9, Section 7.7, Section
7.8 hereof, and in this Article VIII shall survive until the
Securities have been paid in full. Thereafter, the obligations of the Company
in Section 7.7, Section 8.5 and Section 8.6 hereof shall
survive.


 


Section 8.2                                      Conditions to Defeasance


 


The Company may exercise its legal defeasance option or its covenant
defeasance option only if:


 


(a)                                  the
Company shall have irrevocably deposited with the Trustee, in trust, for the
benefit of the Holders of the Securities, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest on
the outstanding Securities on the Stated Maturity or on the applicable
Redemption


 


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Date, as the case may be, and the Company
must specify whether the Securities are being defeased to Stated Maturity or to
a particular Redemption Date;


 


(b)                                 in
the case of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that (1) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (2) since the Issue
Date, 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 Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such legal
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such legal
defeasance had not occurred;


 


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


 


(d)                                 no
Default shall have occurred and be continuing on the date of such deposit
(other than a Default resulting from the incurrence of Indebtedness or the
grant of Liens securing such Indebtedness, all or a portion of the proceeds of
which will be applied to such deposit) or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit;


 


(e)                                  such
deposit will 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 of its Restricted Subsidiaries is a party or by which
the Company or any of its Restricted Subsidiaries is bound, or if such breach,
violation or default would occur, which is not waived as of, and for all
purposes, on and after, the date of such deposit;


 


(f)                                    the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally;


 


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


 


(h)                                 the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, stating that all conditions precedent relating to the legal
defeasance option or the covenant defeasance option have been complied with.


 


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Section 8.3                                      Delivery and Application of Trust Money


 


The Trustee shall hold in trust money or Government Securities
deposited with it pursuant to this Article VIII. It shall apply the
deposited money and the money from Government Securities in accordance with
this Indenture to the payment of principal, premium, if any, of and interest on
the Securities.


 


Section 8.4                                      Repayment to Company


 


(a)                                  The
Trustee and each Paying Agent shall promptly turn over to the Company upon
request any excess money or securities held by them upon payment of all the
Obligations under this Indenture.


 


(b)                                 Subject
to any applicable abandoned property law, the Trustee and each Paying Agent
shall pay to the Company upon request any money held by them for the payment of
principal of, or premium, if any, or interest on the Securities that remains
unclaimed for two years (or any such money then held by the Company or any
Subsidiary shall be discharged from any trust hereunder), and, thereafter,
Holders entitled to the money must look to the Company for payment as unsecured
general creditors; provided, however,
that, if any Definitive Securities are then outstanding, 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 money remains unclaimed
and that, after a date specified therein, which will not be less than 30 days
from the date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.


 


Section 8.5                                      Indemnity for Government Securities


 


The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited Government
Securities or the principal and interest received on such Government
Securities.


 


Section 8.6                                      Reinstatement


 


If the Trustee or any Paying Agent is unable to apply any money or
Government Securities in accordance with this Article VIII by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article VIII until such time as the Trustee or such
Paying Agent is permitted to apply all such money or Government Securities in
accordance with this Article VIII; provided,
however, that, if the Company has made any payment in respect of any
Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Securities held by the Trustee or any
Paying Agent.


 


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ARTICLE IX


 


AMENDMENTS


 


Section 9.1                                      Without Consent of Holders


 


The Company, any Guarantors and the Trustee may amend or supplement
this Indenture, the Securities or any Subsidiary Guarantees without notice to
or consent of any Holder:


 


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


 


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


 


(3)                                  to
provide for the assumption of the Company’s or a Guarantor’s obligations to
Holders of the Securities in the case of a merger or consolidation or sale of
all or substantially all of the Company’s or such Guarantor’s properties or
assets, including the addition of any required co-issuer of the Securities;


 


(4)                                  to
make any change that would provide any additional rights or benefits to the
Holders or that does not materially affect the legal rights hereunder of any
Holder;


 


(5)                                  to
comply with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;


 


(6)                                  to
add any additional Guarantor or to release any Guarantor from its Subsidiary
Guarantee, to evidence or provide for the acceptance of appointment of a
successor Trustee or to add any additional Events of Default, in each case, as
provided in this Indenture;


 


(7)                                  to
secure the Securities, including pursuant to the requirements of Section 4.5;


 


(8)                                  to
conform the text of this Indenture, the Securities or the Subsidiary Guarantees
to any provision of the “Description of the Notes” in the Company’s final
offering memorandum relating to the Initial Securities to the extent that such
provision in such “Description of the Notes” was intended to set forth,
verbatim or in substance, a provision of this Indenture, the Securities or the
Subsidiary Guarantees; or


 


(9)                                  to
provide for the issuance of Exchange Securities and related Subsidiary
Guarantees or Additional Securities and related Subsidiary Guarantees in
accordance with this Indenture.


 


Section 9.2                                      With Consent of Holders


 


(a)                                  The
Company, the Guarantors and the Trustee may amend or supplement this Indenture,
the Securities or the Subsidiary Guarantees with the consent of the Holders of
at least a majority in principal amount of the outstanding Securities
(including consents obtained in


 


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connection with the purchase of, or tender
offer or exchange offer for, Securities). Subject to the following sentence,
any existing Default or compliance with any provision of this Indenture, the
Securities or the Subsidiary Guarantees may be waived with the consent of the
Holders of at least a majority in principal amount of outstanding Securities
(including consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities). However, without the consent of each
Holder, an amendment, supplement or waiver may not (with respect to any
Securities held by a non-consenting Holder):


 


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


 


(2)                                  reduce
the principal of or change the fixed maturity of any Security or alter the
provisions with respect to the redemption or repurchase of the Securities
(other than provisions relating to Section 4.7 or 4.12);


 


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


 


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


 


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


 


(6)                                  make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Securities to receive payments of
principal of or premium, if any, or interest on the Securities (except as
permitted by clause (7) below);


 


(7)                                  waive
a redemption or repurchase payment with respect to any Security (other than a
payment required by Section 4.7 or 4.12); or


 


(8)                                  make
any change in the preceding amendment, supplement and waiver provisions of this
Section 9.2(a).


 


(b)                                 The
consent of the Holders is not necessary under this Section 9.2 to approve
the particular form of any proposed amendment or waiver. It is sufficient if
the consent approves the substance of the proposed amendment or waiver.


 


(c)                                  After
an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to each Holder of Securities affected thereby
a notice briefly describing such amendment. The failure to give such notice to
any or all Holders, or any defect therein, shall not impair or affect the
validity of any amendment, supplement or waiver under this Section 9.2.


 


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Section 9.3                                      Compliance with Trust Indenture Act


 


Every amendment to this Indenture, the Securities or the Subsidiary
Guarantees shall comply with the Trust Indenture Act as then in effect.


 


Section 9.4                                      Revocation and Effect of Consents and Waivers


 


(a)                                  A
consent to an amendment, supplement or waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder’s Security (or
any Holder of a Security issued upon the registration of transfer or exchange
thereof or in lieu thereof), even if notation of the amendment, supplement or
waiver is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent as to such Holder’s Security or portion of the
Security if the Trustee receives the written notice of revocation before the
date the amendment, supplement or waiver becomes effective. After an amendment,
supplement or waiver becomes effective in accordance with its terms, it shall
bind every Holder.


 


(b)                                 The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other
action described above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at the close of business on
such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be
Holders after such record date, and for this purpose the Securities then
outstanding shall be computed as of such record date. No such consent shall
become valid or effective more than 120 days after such record date.


 


Section 9.5                                      Notation on or Exchange of Securities


 


If an amendment or supplement changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security regarding the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms, but
the failure to make the appropriate notation or to issue a new Security shall
not affect the validity and effect of such amendment or supplement.


 


Section 9.6                                      Trustee to Sign Amendments


 


The Trustee shall sign any amendment or supplement authorized pursuant
to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. If
it does, the Trustee may but need not sign it. In signing such amendment or
supplement the Trustee shall be entitled to receive, and (subject to Section
7.1 hereof) shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amendment or supplement is authorized or permitted by this Indenture.


 


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ARTICLE X


 


SUBSIDIARY GUARANTEES


 


Section 10.1                                Subsidiary Guarantees


 


(a)                                  Each
Guarantor hereby, jointly and severally, guarantees to each Holder and to the
Trustee and its successors and assigns the full and punctual payment of
principal of, premium (if any) and interest on the Securities when due, whether
at Stated Maturity, or upon redemption, required repurchase pursuant to Section
4.7 or Section 4.12 hereof, acceleration or otherwise, and all other
monetary obligations owing by the Company under this Indenture (including
obligations owing to the Trustee) and the Securities (all the foregoing being
hereinafter collectively called the “Guaranteed Obligations”). The Guarantors
further agree that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without notice or further assent from the Guarantors, and
that the Guarantors will remain bound under this Article X
notwithstanding any extension or renewal of any Guaranteed Obligation.


 


(b)                                 The
Guarantors waive presentation to, demand of payment from and protest to the
Company of any of the Guaranteed Obligations and also waive notice of protest
for nonpayment. The Guarantors waive notice of any Default under the Securities
or the Guaranteed Obligations. The obligations of the Guarantors hereunder
shall not be affected by:  (1) the
failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (2) any
extension or renewal of any Guaranteed Obligation; (3) any rescission, waiver,
amendment, modification or supplement of any of the terms or provisions of this
Indenture (other than this Article X), the Securities or any other
agreement; (4) the release of security, if any, held by any Holder or the
Trustee for the Guaranteed Obligations or any of them; (5) the failure of any
Holder or the Trustee to exercise any right or remedy against any other
guarantor of the Guaranteed Obligations; (6) any change in the ownership of the
Company; or (vii) any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
the Guarantors or would otherwise operate as a discharge of the Guarantors as a
matter of law or equity, except for payment of the Securities in full.


 


(c)                                  The
Guarantors, jointly and severally, further agree that their Subsidiary
Guarantees herein constitute a guarantee of payment when due (and not a
guarantee of collection) and waive any right to require that any resort be had
by any Holder or the Trustee to security, if any, held for payment of the
Guaranteed Obligations.


 


(d)                                 The
obligations of the Guarantors hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (except to the extent
provided in Section 10.2 hereof), including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense, setoff, counterclaim, recoupment or termination whatsoever or by reason
of the invalidity, illegality or unenforceability of the Obligations or
otherwise.


 


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(e)                                  The
Guarantors, jointly and severally, further agree that their Subsidiary
Guarantees herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.


 


(f)                                    In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against the Guarantors by virtue
hereof, upon the failure of the Company to pay any Guaranteed Obligation when
and as the same shall become due, whether at Stated Maturity, upon redemption,
required repurchase, acceleration or otherwise, the Guarantors hereby promise
to and will, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee an amount equal to the
sum of (i) the unpaid principal amount of such Guaranteed Obligations and (ii)
accrued and unpaid interest on such Guaranteed Obligation (but only to the
extent not prohibited by law).


 


(g)                                 The
Guarantors, jointly and severally, agree that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the Guaranteed Obligations may be accelerated as provided in Article
VI for the purposes of the Subsidiary Guarantee herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the Guaranteed Obligations, and (y) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article VI,
such Guaranteed Obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purposes of this Section
10.1.


 


(h)                                 The
Guarantors, jointly and severally, also agree to pay any and all costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section 10.1.


 


Section 10.2                                Limitation on Liability


 


Each Guarantor, and by its acceptance of Securities, each Holder,
hereby confirm that it is the intention of all such parties that the Subsidiary
Guarantee of such 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 Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of each Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article X, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.


 


94
















 


Section 10.3                                Execution and Delivery of Subsidiary Guarantee


 


(a)                                  To
evidence its Subsidiary Guarantee set forth in Section 10.1, each
Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form attached as Exhibit D hereto will be
endorsed by manual or facsimile signature by an Officer of such Guarantor on
each Security authenticated and delivered by the Trustee and that this
Indenture (or a supplemental indenture substantially in form of Exhibit E
hereof) will be executed on behalf of such Guarantor by one of its Officers.


 


(b)                                 Each
Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
10.1 will remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Subsidiary Guarantee. If an Officer
whose facsimile signature is on the Subsidiary Guarantee no longer holds that
office at the time the Trustee authenticates the Security on which the
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will be valid
nevertheless.


 


(c)                                  The
delivery of any Security by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Guarantors.


 


Section 10.4                                Successors and Assigns


 


Except as otherwise provided in Section 10.9 hereof, this Article
X shall be binding upon the Guarantors and their successors and assigns and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights in accordance
with the terms of this Indenture by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Securities
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture, the Securities and the
Subsidiary Guarantees.


 


Section 10.5                                No Waiver


 


Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article X
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article X at law,
in equity, by statute or otherwise.


 


Section 10.6                                Right of Contribution


 


Each Guarantor hereby agrees that to the extent that a Guarantor shall
have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against
any other Guarantor hereunder who has not paid its proportionate share of such
payment. Each Guarantor’s right of contribution shall be subject to the terms
and conditions of this Article X. The provisions of this Section 10.6
shall in no


 


95

















 


respect limit the obligations
and liabilities of any Guarantor to the Trustee and the Holders and each
Guarantor shall remain liable to the Trustee and the Holders for the full
amount guaranteed by such Guarantor hereunder.


 


Section 10.7                                No Subrogation


 


Notwithstanding any payment or payments made by any of the Guarantors
hereunder, no Guarantor shall be entitled to exercise any rights of subrogation
it may have to any of the rights of the Trustee or any Holder against the
Company or any other Guarantor or any collateral security or guarantee or right
of offset held by the Trustee or any Holder for the payment of the Guaranteed
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing
to the Trustee and the Holders by the Company on account of the Guaranteed
Obligations are paid in full. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by such Guarantor
in trust for the Trustee and the Holders, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Trustee in the exact form received by such Guarantor (duly indorsed by
such Guarantor to the Trustee, if required), to be applied against the
Guaranteed Obligations.


 


Section 10.8                                Modification


 


No modification, amendment or waiver of any provision of this Article
X, nor the consent to any departure by the Guarantors therefrom, shall in
any event be effective unless the same shall be made in accordance with Article
IX hereof. No notice to or demand on the Guarantors in any case shall
entitle the Guarantors to any other or further notice or demand in the same,
similar or other circumstances.


 


Section 10.9                                Merger, Consolidation or Sale of Assets of a
Guarantor; Release of a Guarantor


 


(a)                                  To
the extent that the Subsidiary Guarantee of a Guarantor has not been released
in accordance with the provisions of this Indenture, such Guarantor may not
sell or otherwise dispose of all or substantially all of its properties or
assets to, or consolidate with or merge with or into, another Person (whether
or not such Guarantor is the resulting, transferee or surviving Person) other
than the Company or another Guarantor, unless:


 


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


 


96

















 


(2)                                  either:


 


(A)                              the Person acquiring the
properties or assets in any such sale or other disposition or the Person formed
by or surviving any such consolidation or merger (if other than such Guarantor)
unconditionally assumes, pursuant to a supplemental indenture substantially in
the form of Exhibit E hereto, all the obligations of such Guarantor
under this Indenture, the Securities, its Subsidiary Guarantee and any
applicable Registration Rights Agreement on terms set forth therein; or


 


(B)                                the Net Proceeds of
such sale or other disposition are applied in accordance with Section 4.7.


 


(b)                                 The
Subsidiary Guarantee of a Guarantor shall be automatically and unconditionally
released:


 


(1)                                  in
connection with any sale or other disposition of all or substantially all of
the properties or assets of such Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to
such transaction) a Restricted Subsidiary of the Company, if the sale or other
disposition complies with Section 4.7;


 


(2)                                  in
connection with any sale or other disposition of all of the Capital Stock of
such Guarantor to a Person that is not (either before or after giving effect to
such transaction) a Restricted Subsidiary of the Company, if the sale or other
disposition complies with Section 4.7;


 


(3)                                  if
such Guarantor is a Restricted Subsidiary and the Company designates such
Guarantor as an Unrestricted Subsidiary in accordance with Section 4.9;


 


(4)                                  upon
the exercise by the Company of its legal defeasance option or covenant
defeasance option in accordance with Section 8.1(b) or upon satisfaction
and discharge of this Indenture in accordance with Section 8.1(a);


 


(5)                                  upon
the liquidation or dissolution of such Guarantor provided that no Default or Event of Default has occurred
and is continuing; or


 


(6)                                  at
any time after the occurrence of an Investment Grade Rating Event, such
Guarantor does not have outstanding Indebtedness, and it does not guarantee
Indebtedness of the Company or any other Guarantor, in each case in excess of a
De Minimis Amount.


 


(c)                                  Upon
delivery by the Company to the Trustee of an Officers’ Certificate to the
effect that any of the conditions described in clauses (1) – (6) of Section
10.9(b) has occurred, the Trustee shall execute any supplemental indenture
or other documents reasonably requested by the Company in order to evidence the
release of any Guarantor from its obligations under its Subsidiary Guarantee
and this Indenture.


 


97

















 


ARTICLE XI



MISCELLANEOUS


 


Section 11.1                                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
Trust Indenture Act (or in any other indenture qualified thereunder), the
provision required by the Trust Indenture Act shall control.


 


Section 11.2                                Notices


 


(a)                                  Any
notice or communication shall be in writing in the English language and
delivered in person or mailed by first-class mail, telecopier or overnight air
courier guaranteeing next day delivery, addressed as follows (unless the
Company and the Trustee agree to another method of delivery):


 


if to the Company or any Guarantors:


 


Key Energy Services, Inc. 

1301 McKinney, Suite 1800

Houston, Texas  77010

Attention:  Chief Financial Officer

Facsimile: (713) 652-4005


 


with a copy to:


 


Porter & Hedges, L.L.P.

1001 Main Street, 36th Floor

Houston, Texas  77002

Attention:  William W. Wiggins

Facsimile: (713) 226-6227


 


if to the Trustee:


 


The Bank of New York Trust Company, N.A.


601 Main Street, 18th Floor


Houston, Texas  77002


Attention:  Corporate Finance
Southern US

Facsimile: (713) 483-7038


 


(b)                                 The
Company or any Guarantors, by notice to the Trustee, or the Trustee by notice
to the Company and any Guarantors, may designate additional or different
addresses for subsequent notices or communications.


 


98

















 


(c)                                  Any
notice or communication to a Holder shall be delivered to the Holder at the
Holder’s address as it appears on the registration books of the Registrar 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 register kept by the Registrar.


 


(d)                                 All
notices and communications 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; (other than those sent to
Holders) when answered back, if telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.


 


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


 


Section 11.3                                Communication by Holders with Other Holders


 


Holders may communicate pursuant to the Trust Indenture Act Section
312(b) with other Holders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of the Trust Indenture Act Section 312(c).


 


Section 11.4                                Certificate and Opinion as to Conditions Precedent


 


Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall, if
requested, furnish to the Trustee: (i) an Officers’ Certificate in form and
substance reasonably satisfactory to the Trustee stating that, in the opinion
of the signers, all conditions precedent, if any,  provided for in this Indenture relating to the proposed
action have been complied with; and (ii) an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee stating that, in the opinion
of such counsel, all such conditions precedent have been complied with.


 


Section 11.5                                Statements Required in Certificate or Opinion


 


Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include: (i) a statement that
the individual making such certificate or opinion has read such covenant or
condition; (ii) 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; (iii) a statement that, in the opinion of
such individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (iv) a statement as to whether or not,
in the opinion of such individual, such covenant or condition has been complied
with.


 


99

















 


Section 11.6                                When Securities Disregarded


 


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


 


Section 11.7                                Legal Holidays


 


A “Legal Holiday” is a day that is not a Business Day. Notwithstanding
any other provisions of this Indenture, the Securities or the Subsidiary Guarantees,
if a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. If a record date is a Legal Holiday, the record date
shall not be affected.


 


Section 11.8                                Governing Law


 


THE
LAWS OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE AND ENFORCE
THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES.


 


Section 11.9                                No Personal Liability of Directors, Officers,
Employees and Others


 


No director, officer, employee, manager, incorporator, member, partner
or stockholder or other owner of Capital Stock of the Company or any of its
Subsidiaries, as such, shall have any liability for any obligations of the
Company or any Guarantor under the Securities, this Indenture or the Subsidiary
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.


 


Section 11.10                          Successors


 


All agreements of the Company and (except as otherwise provided in Section
10.9 hereof) the Guarantors in this Indenture, the Securities and the
Subsidiary Guarantees shall bind their respective successors. All agreements of
the Trustee in this Indenture shall bind its successors.


 


Section 11.11                          Multiple Originals; Counterparts


 


The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture. This Indenture
may be executed in multiple counterparts which, when taken together, shall
constitute one instrument.


 


100

















 


Section 11.12                          Severability


 


In case any provision in this Indenture or in the Securities or the
Subsidiary Guarantees is invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.


 


Section 11.13                          Table of Contents; Headings


 


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


 


Section 11.14                          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.


 


101

















 


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


 


	
   

  	
  KEY ENERGY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard J. Alario

  
	
   

  	
   

  	
  Richard J. Alario

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Newton W. Wilson III

  
	
   

  	
   

  	
  Newton W. Wilson III

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  KEY ENERGY SERVICES MEXICO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Newton W. Wilson III

  
	
   

  	
   

  	
  Newton W. Wilson III

  
	
   

  	
   

  	
  Vice President and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PETROLEUM WELL SERVICES, INC.

  
	
   

  	
  MONCLA WELL SERVICE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Newton W. Wilson III

  
	
   

  	
   

  	
  Newton W. Wilson III

  
	
   

  	
   

  	
  President and Secretary

  



 


102

















 


	
   

  	
  KEY ENERGY SERVICES, LLC

  
	
   

  	
  KEY ENERGY PRESSURE PUMPING SERVICES, LLC

  
	
   

  	
  KEY ENERGY FISHING & RENTAL SERVICES,
  LLC

  
	
   

  	
  KEY ENERGY SHARED SERVICES, LLC

  
	
   

  	
  MISR KEY ENERGY INVESTMENTS, LLC*

  
	
   

  	
  MISR KEY ENERGY SERVICES, LLC*

  
	
   

  	
  KEY ELECTRIC WIRELINE SERVICES, LLC

  
	
   

  	
  KEY ENERGY SERVICES (MEXICO), LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Newton W. Wilson III

  
	
   

  	
   

  	
  Newton W. Wilson III

  
	
   

  	
   

  	
  Vice President and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  *Executing in the capacity of President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BROTHERS OILFIELD SERVICE & SUPPLY,
  L.L.C.

  
	
   

  	
  4M EQUIPMENT & LEASING, L.L.C.

  
	
   

  	
  LCM INDUSTRIES, L.L.C.

  
	
   

  	
  MONCLA MARINE, L.L.C.

  
	
   

  	
  MONCLA DRILLING, L.L.C.

  
	
   

  	
  MONCLA MARINE CREW BOATS, L.L.C.

  
	
   

  	
  MONCLA MARINE OPERATIONS, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 1, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 2, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 3, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 4, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 5, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 6, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 8, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 9, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 10, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 11, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 12, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 14, L.L.C.

  
	
   

  	
  MONCLA MARINE VESSEL NO. 15, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Newton W. Wilson III

  
	
   

  	
   

  	
  Newton W. Wilson III

  
	
   

  	
   

  	
  Manager

  



 


103

















 


	
   

  	
  THE BANK OF NEW YORK TRUST COMPANY,

  
	
   

  	
   

  	
  N. A.,

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Julie Hoffman-Ramos

  
	
   

  	
   

  	
  Julie Hoffman-Ramos

  
	
   

  	
   

  	
  Assistant Treasurer

  



 


104

















 


EXHIBIT
A


 


[FACE OF SECURITY]


 


KEY ENERGY SERVICES, INC.


 


8 3/8% SENIOR NOTE DUE
2014


 


CUSIP NO. [492914 AQ9] (1)


[U4913U AD0] (2)


[492914 AR7] (3)


 


	
  No.             

  	
   

  	
  Principal Amount $                    

  



 


KEY ENERGY SERVICES, INC., a Maryland
corporation, promises to pay to                                ,
or registered assigns, the principal sum of                                              
dollars on December 1, 2014 [, or such other principal amount as is indicated
on the attached schedule].(4)


 


Interest
Payment Dates:  June 1 and December 1,
commencing June 1, 2008.


 


Record
Dates:  May 15 and November 15.


 


Dated:        ,
20     


 


	
   

  	
  KEY ENERGY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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


as Trustee, certifies that this is one of the


Securities referred to in the Indenture.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 






(1)   For
Securities sold in reliance on Rule 144A.


(2)   For
Securities sold in reliance on Regulation S.


(3)   For
Unrestricted Securities.


(4)   For
Global Securities.


 


A-1

















 


[BACK OF SECURITY]


 


KEY ENERGY SERVICES, INC.


 


8 3/8% SENIOR NOTE DUE
2014


 


[Insert the Global Security
Legend, if applicable pursuant to the provisions of the Indenture]


 


[Insert the Private
Placement Legend, if applicable pursuant to the provisions of the Indenture]


 


Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.


 


1.                                       Interest. Key Energy Services, Inc., a
Maryland corporation (the “Company”), promises to pay interest on the principal
amount of this Security at 8.375% per annum from November 29, 2007 until
maturity. The Company will pay interest semi-annually in arrears on June 1 and
December 1 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
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing
Default in the payment of interest, and if this Security 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 June 1, 2008. The Company will
pay, to the extent lawful, interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
at the rate then in effect; it will pay, to the extent lawful, 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 as on overdue principal. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.


 


2.                                       Method of Payment. The Company will pay
interest on the Securities (except Defaulted Interest) to the Persons who are
registered Holders of Securities at the close of business on the May 15 or
November 15 next preceding the Interest Payment Date, even if such Securities
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.11 of the Indenture with respect
to Defaulted Interest. The Securities will be payable as to principal, premium,
if any, and interest at the office or agency of the Paying Agent maintained for
such purpose within New York, New York, or, at the option of the Company,
payment of interest may be made by check mailed by such Paying Agent to the
Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, and premium, if any, on all Global Securities and all other
Securities, the Holders of which hold at least $1,000,000 aggregate principal
amount of the Securities and have provided timely wire transfer instructions to
the Company and the Paying Agent. Such payment will be in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment


 


A-2

















 


of public and private debts. Holders
must surrender their Securities to the Paying Agent to collect payments of
principal and premium, if any.


 


3.                                       Paying Agent and Registrar. Initially, The
Bank of New York Trust Company, N.A. will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent or Registrar without notice to
any Holder, and the Company or any of its Subsidiaries may act as Paying Agent
or Registrar, all in accordance with the Indenture.


 


4.                                       Indenture. The Company issued the
Securities under an Indenture, dated as of November 29, 2007 (the “Indenture”),
among the Company, the Guarantors named therein and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act. The Securities 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 Security conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling (to the extent permitted by law). The
Securities are unsecured obligations of the Company. The Company initially has
issued $425,000,000 aggregate principal amount of Securities. The Company may
issue Additional Securities under the Indenture, subject to Section 4.3
of the Indenture; provided, however, that
no Additional Securities may be issued at a price that would cause such
Additional Securities to have “original issue discount” within the meaning of
Section 1273 of the Code.


 


5.                                       Redemption.


 


(a)                                  On
or after December 1, 2011, the Company may redeem all or a part of the
Securities at any time and from time to time at its option at the following
Redemption Prices (expressed as percentages of the principal amount) plus
accrued and unpaid interest on the Securities, if any, to the applicable
Redemption Date, if redeemed during the 12-month period beginning December 1 of
the years indicated:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  104.188

  	
  %

  
	
  2012

  	
   

  	
  102.094

  	
  %

  
	
  2013

  	
   

  	
  100.000

  	
  %

  



 


(b)                                 Prior
to December 1, 2010, the Company may on one or more occasions redeem up to 35%
of the aggregate principal amount of the outstanding Securities (including any
Additional Securities) at a Redemption Price of 108.375% of the principal
amount of the Securities, plus
accrued and unpaid interest, if any, thereon to the Redemption Date, with the
net cash proceeds (other than Designated Proceeds) of any one or more Equity
Offerings; provided that (i) at
least 65% of the aggregate principal amount of the Securities (including any
Additional Securities) originally issued under the Indenture remains
outstanding immediately after each such redemption and (ii) each such
redemption occurs within 180 days of the date of the closing of the related
Equity Offering.


 


A-3

















 


(c)                                  In
addition, at any time and from time to time prior to December 1, 2011, the
Company may, at its option, redeem all or part of the Securities at a
Redemption Price equal to


 


(i)                                     100%
of the principal amount thereof, plus


 


(ii)                                  the
Applicable Premium, plus


 


(iii)                               accrued
and unpaid interest, if any, thereon to, the Redemption Date.


 


(d)                                 If
Holders of not less than 95% in aggregate principal amount of the outstanding
Securities validly tender and do not withdraw such Securities in a Change of
Control Offer and the Company, or any third party making a Change of Control
Offer in lieu of the Company as permitted by Section 4.12 of the
Indenture, purchases all of the Securities validly tendered and not withdrawn
by such Holders, the Company or such third party will have the right, upon not
less than 30 nor more than 60 days’ prior notice, given not more than 30 days
following such purchase pursuant to the Change of Control Offer, to redeem all
Securities that remain outstanding following such purchase at a Redemption
Price in cash equal to the applicable Change of Control Payment plus, to the
extent not included in the Change of Control Payment, accrued and unpaid
interest thereon to the Redemption Date.


 


6.                                       Denominations, Transfer, Exchange. The
Securities are in registered form without coupons in minimum denominations of
$2,000 and integral multiples of $1,000 in excess thereof. The transfer of
Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar or 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 transfer tax or similar governmental
charge or other fee required by law and payable in connection therewith. The
Company need not exchange or register the transfer of any Security or portion
of a Security selected for redemption, except for the unredeemed portion of any
Security being redeemed in part. Also, the Company need not exchange or
register the transfer of any Securities for a period of 15 days before the day
of any selection of Securities to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.


 


If this is a Global Security, this Security represents the aggregate
principal amount of outstanding Securities from time to time endorsed hereon,
and the aggregate principal amount of outstanding Securities represented by
this Security may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions in accordance with the Indenture.


 


7.                                       Persons Deemed Owners. The registered
Holder of a Security may be treated as its owner for all purposes.


 


8.                                       Amendment, Supplement and Waiver. Subject
to certain exceptions, the Indenture and the Securities may be amended or
supplemented with the written consent of the Holders of at least a majority in
outstanding principal amount of the Securities, and any existing Default or
compliance with any provision of the Indenture or the Securities may be waived
with the written


 


A-4

















 


consent of the Holders of at
least a majority in outstanding principal amount of the Securities. Without the
consent of any Holder of a Security, the Indenture, the Subsidiary Guarantees
or the Securities may be amended or supplemented (a) to cure any ambiguity,
defect or inconsistency, (b) to provide for uncertificated Securities in
addition to or in place of certificated Securities, (c) to provide for the
assumption of the Company’s or a Guarantor’s obligations to Holders of the  Securities in specified circumstances, (d) to
make any change that would provide any additional rights or benefits to the
Holders or that does not materially affect the legal rights of any Holder, (e)
to comply with any requirement of the SEC in connection with qualifying the Indenture
under the Trust Indenture Act or maintaining such qualification, (f) to add or
release Guarantors in compliance with the Indenture, to appoint a successor
Trustee or to add additional Events of Default, (g) to secure the Securities,
(h) to conform the text of the Indenture, the Securities or the Subsidiary
Guarantees to “Description of the Notes” in the Company’s offering memorandum
respecting the Initial Securities and (i) to provide for the issuance of
Exchange Securities and related Subsidiary Guarantees or Additional Securities
and related Subsidiary Guarantees in accordance with the Indenture.


 


9.                                       Defaults. If an Event of Default shall
occur and be continuing, the principal of all the Securities may be declared
due and payable in the manner and with the effect provided in the Indenture.


 


10.                                 Defeasance. The Indenture contains
provisions for defeasance of (i) the entire indebtedness of the Company on this
Security and (ii) certain restrictive covenants and the related Events of
Default, subject to compliance by the Company with certain conditions set forth
in the Indenture, which provisions apply to this Security.


 


11.                                 Authentication. This Security will not be
valid until authenticated by the manual signature of the Trustee or an
Authenticating Agent.


 


12.                                 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).


 


13.                                 [Additional
Rights of Holders of Restricted Global Securities and Restricted Definitive
Securities. In addition to the rights provided to Holders of
Securities under the Indenture, Holders of Securities will have the rights set
forth in the Registration Rights Agreement, dated as of November 29, 2007,
among the Company, the Guarantors and the other parties named on the signature
pages thereof.]*


 


14.                                 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 Securities and the
Trustee may use CUSIP, ISIN or similar numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such


 






* Delete
for Exchange Security


 


A-5

















 


numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.


 


The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture [and/or
the Registration Rights Agreement].*  Requests may be made to:


 


Key Energy Services, Inc.

1301 McKinney Street, Suite 1800

Houston, Texas  77010

Attention:  Chief Financial Officer


 


A-6

















 


ASSIGNMENT FORM


 


To assign this Security, fill in the form below:


 


	
  (I) or (we) assign and transfer this Security to:

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

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

  



 


 


and irrevocably appoint                                                                                                                                                                              to
transfer this Security 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 Security)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:*

  	
   

  	
   

  
							



 






*    Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-7

















 


Option of Holder to Elect Purchase


 


If you want to elect to have this Security purchased by the Company
pursuant to Section 4.7 or Section 4.12 of the Indenture, check
the appropriate box below:


 


o  Section 4.7                                                                       o
Section 4.12


 


 


If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 4.7 or Section 4.12 of the Indenture,
state the amount you elect to have purchased:


 


$                   


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the face

  
	
   

  	
   

  	
  of
  this Security)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee:*

  	
   

  	
   

  
								



 






*    Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-8

















 


[TO BE ATTACHED TO GLOBAL SECURITIES]



SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY


 


The following increases or decreases in this
Global Security have been made:


 


	
  Date of
  Exchange

  	
   

  	
  Amount
  of Decrease

  in Principal Amount

  of this Global Security

  	
   

  	
  Amount
  of Increase in

  Principal Amount of

  this Global Security

  	
   

  	
  Principal
  Amount of

  this Global Security

  Following such

  Decrease or Increase

  	
   

  	
  Signature
  of

  Authorized Officer of

  Trustee or Securities

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


Key Energy Services, Inc.


1301 McKinney, Suite 1800


Houston, Texas  77010


 


The Bank of New York Trust Company, N.A.,


as Trustee


601 Main Street, 18th Floor


Houston, Texas  77002


Attention:  Corporate Trust
Division


 


RE:                              Key Energy Services, Inc.
8 3/8% Senior Notes due 2014


 


	
  CUSIP    

  	
  [492914 AQ9] (1)

  
	
   

  	
  [U4913U AD0] (2)

  



 


Reference is hereby made to the Indenture, dated as of November 29,
2007 (the “Indenture”), among Key
Energy Services, Inc., as issuer (the “Company”),
the Guarantors named therein, and The Bank of New York Trust Company, N.A., 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 Security[ies] or beneficial interest in such
Security[ies] in the principal amount of $                             (the
“Transfer”), to                                                            (the
“Transferee”). 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
Security or a Restricted Definitive Security pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive Security is being
transferred to a Person that the Transferor reasonably believes is purchasing
the beneficial interest or Definitive Security 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


 






(1)   For
Securities sold in reliance on Rule 144A.


 


(2)   For
Securities sold in reliance on Regulation S.


 


B-1

















 


Indenture, the transferred beneficial interest or Definitive Security
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Security and/or the Restricted
Definitive Security 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 Security or a Restricted Definitive Security pursuant to Regulation S.
The Transfer is being effected pursuant to and in accordance with 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 904(b) 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 Transfer is being made prior to the expiration of the Restricted
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 Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Regulation S Global Security and/or the Restricted Definitive Security and in
the Indenture and the Securities Act.


 


3. o   Check
if Transferee will take delivery of a beneficial interest in a Restricted
Global Security or a Restricted Definitive Security 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 Securities and
Restricted Definitive Securities and pursuant to and in accordance with the Securities
Act (other than Rule 144A or Regulation S) and any applicable blue sky
securities laws of any state of the United States.


 


4. o   Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Security or of an Unrestricted Definitive Security.


 


(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
Security will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Securities, on
Restricted Definitive Securities and in the Indenture.


 


B-2

















 


(b)  o   Check if
Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with 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 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
Security will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Securities, on
Restricted Definitive Securities 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 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
Security will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Securities or
Restricted Definitive Securities and in the Indenture.


 


B-3

















 


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-4

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Key Energy Services, Inc.


1300 McKinney, Suite 1800


Houston, Texas  77010


 


The Bank of New York Trust Company, N.A.,


as Trustee


601 Main Street, 18th Floor


Houston, Texas  77002


Attention:  Corporate Trust
Division


 


Re:                               Key Energy Services,
Inc. 8 3/8% Senior Notes due 2014


 


	
  CUSIP    

  	
  [492914 AQ9] (1)

  
	
   

  	
  [U4913U AD0] (2)

  



 


Reference is hereby made to the Indenture, dated as of November 29,
2007 (the “Indenture”), among Key
Energy Services, Inc., as issuer (the “Company”),
the Guarantors named therein and The Bank of New York Trust Company, N.A., 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 Security[ies] or beneficial interest in such Security[ies]
specified herein, in the principal amount of $                             (the
“Exchange”). In connection with
the Exchange, the Owner hereby certifies that:


 


1.                                       Exchange of Restricted Definitive Securities or
Beneficial Interests in a Restricted Global Security for Unrestricted
Definitive Securities or Beneficial Interests in an Unrestricted Global
Security


 


(a)  o                Check if Exchange is from beneficial interest in a
Restricted Global Security to beneficial interest in an Unrestricted Global
Security. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security 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 Global Securities and pursuant to and
in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions
on transfer contained in the


 






(1)   For
Securities sold in reliance on Rule 144A.


 


(2)   For Securities sold in reliance
on Regulation S.


 


C-1

















 


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
Security 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 Security to Unrestricted Definitive Security. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Definitive Security 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 Securities
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 Definitive Security 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
Security to beneficial interest in an Unrestricted Global Security. In
connection with the Owner’s Exchange of a Restricted Definitive Security for a
beneficial interest in an Unrestricted Global Security, 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 Securities
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
Security to Unrestricted Definitive Security. In connection with the
Owner’s Exchange of a Restricted Definitive Security for an Unrestricted
Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security 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 Securities 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 Security is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.


 


2.                                       Exchange of Restricted Definitive Securities or
Beneficial Interests in Restricted Global Securities for Restricted Definitive
Securities or Beneficial Interests in Restricted Global Securities


 


(a)  o                Check if Exchange is from beneficial interest in a
Restricted Global Security to Restricted Definitive Security. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security is


 


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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 Security
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Security
and in the Indenture and the Securities Act.


 


(b)  o               Check if Exchange is from Restricted Definitive
Security to beneficial interest in a Restricted Global Security. In
connection with the Exchange of the Owner’s Restricted Definitive Security for
a beneficial interest in the [CHECK ONE]  144A Global Security,
 Regulation S Global Security 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 Global
Securities 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 Security and in the Indenture and the
Securities Act.


 


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:

  	
   

  	
   

  	
   

  
					



 


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EXHIBIT D


 


FORM OF NOTATION OF SUBSIDIARY GUARANTEE


 


For value received, the undersigned Guarantor (which term includes any
successor to such Guarantor under the Indenture) has, jointly and severally,
with each other Guarantor, unconditionally guaranteed, to the extent set forth
in the Indenture and subject to the provisions in the Indenture dated as of
November 29, 2007 (the “Indenture”)
among Key Energy Services, Inc. (the “Company”),
each Guarantor party thereto and The Bank of New York Trust Company, N.A., as
trustee (the “Trustee”), the full
and punctual payment of the principal of, premium, if any, and interest on the
Securities (as defined in the Indenture) when due, whether at Stated Maturity,
or upon redemption, required repurchase pursuant to Section 4.7 or Section 4.12
of the Indenture, acceleration or otherwise, and all other monetary obligations
owing by the Company under the Indenture (including obligations owing to the
Trustee) and the Securities, all as more fully provided in Article X of
the Indenture. The obligations of the undersigned Guarantor to the Holders of
Securities and to the Trustee pursuant to the Subsidiary Guarantee and the
Indenture are expressly set forth in Article X of the Indenture and
reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee. Each Holder of a Security, by accepting the same, (a)
agrees to and shall be bound by such provisions and (b) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that each Subsidiary Guarantee is subject
to release in accordance with the provisions of the Indenture.


 


	
   

  	
  [NAME OF GUARANTOR(S)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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EXHIBIT
E


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY FUTURE GUARANTORS


 


SUPPLEMENTAL
INDENTURE (this “Supplemental
Indenture”), dated as of               ,
20     , among [Names of Future Guarantor(s)]  (the “New
Guarantors”), a subsidiary of Key
Energy Services, Inc., a Maryland corporation [or its permitted successor] (the
“Company”), the existing
Guarantors (as defined in the Indenture referred to herein) and The Bank of New
York Trust Company, N.A., as trustee under the Indenture referred to herein
(the “Trustee”). The New
Guarantor and the existing Guarantors are sometimes referred to collectively
herein as the “Guarantors”, or individually as a “Guarantor.”


 


W I T N E S S E T H


 


WHEREAS, the Company and the existing Guarantors have heretofore
executed and delivered to the Trustee an indenture (the “Indenture”), dated as of November 29,
2007, relating to the 83/8% Senior Notes due 2014
(the “Securities”) of the
Company;


 


*WHEREAS, Section 4.10 of the Indenture provides that if any of the
Restricted Subsidiaries (other than a Foreign Subsidiary) of the Company that
is not already a Guarantor incurs any Indebtedness, or guarantees any other
Indebtedness of the Company or a Guarantor in either case in excess of a De
Minimis Amount, then the Company shall cause that Restricted Subsidiary to
become a Guarantor by executing a supplemental indenture; and


 


WHEREAS, pursuant to Section 9.1 of the Indenture, the Company,
the Guarantors and the Trustee are authorized to execute and deliver this Supplemental
Indenture to amend or supplement the Indenture without the consent of any
Holder;


 


NOW THEREFORE, to comply with the provisions of the Indenture and in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, each New Guarantor, the existing
Guarantors, the Company and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Securities as follows:


 


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


 


2.                                    AGREEMENT
TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally, with all
other Guarantors, to guarantee to each Holder and to the Trustee the Guaranteed
Obligations, to the extent set forth in the Indenture and subject to the
provisions in the Indenture. The obligations of the Guarantors to the Holders
of Securities and to the Trustee pursuant to the Subsidiary Guarantees and the
Indenture are expressly set forth in Article X of


 






*  Revise this
recitation as appropriate if the Supplemental Indenture is being delivered in
compliance with Section 10.9(a)(1)(A).


 


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the Indenture and reference is
hereby made to the Indenture for the precise terms of the Subsidiary
Guarantees.


 


3.                                    EXECUTION
AND DELIVERY. Each New Guarantor agrees that its Subsidiary Guarantee shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Subsidiary Guarantee.


 


4.                                    NEW
YORK LAW TO GOVERN. THE LAWS OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE AND ENFORCE THIS
SUPPLEMENTAL INDENTURE.


 


5.                                    COUNTERPARTS.
The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. This Supplemental Indenture may be executed in multiple counterparts
which, when taken together, shall constitute one instrument.


 


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


 


7.                                    THE
TRUSTEE. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be assumed,
by the Trustee by reason of this Supplemental Indenture. This Supplemental
Indenture is executed and accepted by the Trustee subject to all the terms and
conditions set forth in the Indenture with the same force and effect as if
those terms and conditions were repeated at length herein and made applicable
to the Trustee with respect hereto.


 


[Remainder
of Page Intentionally Left Blank.


 


Signature Page
Follows.]


 


E-2

















 


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


 


Dated:                  ,
20     


 


	
   

  	
  [NEW GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [EXISTING GUARANTORS]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KEY
  ENERGY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK TRUST COMPANY,

  N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


E-3