Exhibit 4.1


 


UNITED RENTALS (NORTH AMERICA), INC.


 


as the Company


 


and


 


UNITED RENTALS, INC.


 


and


 


THE SUBSIDIARIES NAMED HEREIN


 


as Guarantors


 


to


 


THE BANK OF NEW YORK MELLON


 


as Trustee


 






 


Indenture


 


Dated as of October 26, 2010


 






 


$750,000,000


 


8.375% Senior Subordinated Notes Due 2020


 

















 


CROSS REFERENCE TABLE(1)


 


	
  Trust Indenture Act

  	
   

  	
  Indenture

  	
   

  
	
  Selection

  	
   

  	
  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  6.09

  	
   

  
	
  310(a)(2)

  	
   

  	
  6.09

  	
   

  
	
  310(a)(3)

  	
   

  	
  N.A.

  	
  (2)

  
	
  310(a)(4)

  	
   

  	
  N.A.

  	
   

  
	
  310(a)(5)

  	
   

  	
  N.A.

  	
   

  
	
  310(b)

  	
   

  	
  6.08; 6.10

  	
   

  
	
  310(c)

  	
   

  	
  N.A.

  	
   

  
	
  311(a)

  	
   

  	
  6.13

  	
   

  
	
  311(b)

  	
   

  	
  6.13

  	
   

  
	
  311(c)

  	
   

  	
  N.A.

  	
   

  
	
  312(a)

  	
   

  	
  7.01; 7.02

  	
   

  
	
  312(b)

  	
   

  	
  7.02

  	
   

  
	
  312(c)

  	
   

  	
  7.02

  	
   

  
	
  313(a)

  	
   

  	
  7.03

  	
   

  
	
  313(b)

  	
   

  	
  7.03

  	
   

  
	
  313(c)

  	
   

  	
  1.06; 7.03

  	
   

  
	
  313(d)

  	
   

  	
  7.03

  	
   

  
	
  314(a)

  	
   

  	
  7.04

  	
   

  
	
  314(a)(4)

  	
   

  	
  1.03; 10.19

  	
   

  
	
  314(b)

  	
   

  	
  N.A.

  	
   

  
	
  314(c)(1)

  	
   

  	
  1.02

  	
   

  
	
  314(c)(2)

  	
   

  	
  1.02

  	
   

  
	
  314(c)(3)

  	
   

  	
  N.A.

  	
   

  
	
  314(d)

  	
   

  	
  N.A.

  	
   

  
	
  314(e)

  	
   

  	
  1.02

  	
   

  
	
  314(f)

  	
   

  	
  N.A.

  	
   

  
	
  315(a)

  	
   

  	
  6.01

  	
   

  
	
  315(b)

  	
   

  	
  6.02

  	
   

  
	
  315(c)

  	
   

  	
  6.01

  	
   

  
	
  315(d)

  	
   

  	
  6.01

  	
   

  
	
  315(e)

  	
   

  	
  5.14

  	
   

  
	
  316(a)(1)(A)

  	
   

  	
  5.12

  	
   

  
	
  316(a)(1)(B)

  	
   

  	
  5.13

  	
   

  
	
  316(a)(2)

  	
   

  	
  N.A.

  	
   

  
	
  316(a)(last
  sentence)

  	
   

  	
  1.01

  	
  (3)

  



 






(1)  Note: 
This Cross Reference Table shall not, for any purpose, be deemed part of
this Indenture.


 


(2)  Not Applicable.


 


(3)  Definition of “Outstanding.”


 


2

















 


	
  316(b)

  	
   

  	
  5.07; 5.08

  	
   

  
	
  316(c)

  	
   

  	
  1.04

  	
   

  
	
  317(a)(1)

  	
   

  	
  5.03

  	
   

  
	
  317(a)(2)

  	
   

  	
  5.04

  	
   

  
	
  317(b)

  	
   

  	
  10.03

  	
   

  
	
  318(a)

  	
   

  	
  1.07

  	
   

  



 


3

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  
	
   

  
	
  Definitions
  and Other Provisions of General Application

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Compliance Certificates and Opinions

  	
  30

  
	
  SECTION 1.03.

  	
  Form of Documents Delivered to Trustee

  	
  31

  
	
  SECTION 1.04.

  	
  Acts of Holders; Record Dates

  	
  31

  
	
  SECTION 1.05.

  	
  Notices to Trustee, the Company or a Guarantor

  	
  34

  
	
  SECTION 1.06.

  	
  Notice to Holders; Waiver

  	
  34

  
	
  SECTION 1.07.

  	
  Conflict with Trust Indenture Act

  	
  34

  
	
  SECTION 1.08.

  	
  Effect of Headings and Table of Contents

  	
  34

  
	
  SECTION 1.09.

  	
  Successors and Assigns

  	
  35

  
	
  SECTION 1.10.

  	
  Separability Clause

  	
  35

  
	
  SECTION 1.11.

  	
  Benefits of Indenture

  	
  35

  
	
  SECTION 1.12.

  	
  Governing Law

  	
  35

  
	
  SECTION 1.13.

  	
  Legal Holidays

  	
  35

  
	
  SECTION 1.14.

  	
  Waiver of Jury Trial

  	
  35

  
	
  SECTION 1.15.

  	
  Force Majeure

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  
	
   

  
	
  Security Forms

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  
	
   

  
	
  The Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Title and Terms

  	
  36

  
	
  SECTION 3.02.

  	
  Denominations

  	
  37

  
	
  SECTION 3.03.

  	
  Execution and Authentication

  	
  37

  
	
  SECTION 3.04.

  	
  Temporary Securities

  	
  38

  
	
  SECTION 3.05.

  	
  Registration, Registration of Transfer and Exchange

  	
  38

  
	
  SECTION 3.06.

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  39

  
	
  SECTION 3.07.

  	
  Payment of Interest; Rights Preserved

  	
  40

  
	
  SECTION 3.08.

  	
  Persons Deemed Owners

  	
  41

  
	
  SECTION 3.09.

  	
  Cancellation

  	
  41

  
	
  SECTION 3.10.

  	
  Computation of Interest

  	
  41

  
	
  SECTION 3.11.

  	
  CUSIP and CINS Numbers

  	
  42

  
	
  SECTION 3.12.

  	
  Deposits of Monies

  	
  42

  
	
  SECTION 3.13.

  	
  Issuance of Additional Securities

  	
  42

  



 


4

















 


	
  ARTICLE
  IV

  
	
   

  
	
  Satisfaction and Discharge

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Satisfaction and Discharge of Indenture

  	
  43

  
	
  SECTION 4.02.

  	
  Application of Trust Money

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  Remedies

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Events of Default

  	
  44

  
	
  SECTION 5.02.

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  46

  
	
  SECTION 5.03.

  	
  Collection of Indebtedness and Suits for Enforcement by
  Trustee

  	
  47

  
	
  SECTION 5.04.

  	
  Trustee May File Proofs of Claim

  	
  48

  
	
  SECTION 5.05.

  	
  Trustee May Enforce Claims Without Possession of Securities

  	
  49

  
	
  SECTION 5.06.

  	
  Application of Money Collected

  	
  49

  
	
  SECTION 5.07.

  	
  Limitation on Suits

  	
  49

  
	
  SECTION 5.08.

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest

  	
  50

  
	
  SECTION 5.09.

  	
  Restoration of Rights and Remedies

  	
  50

  
	
  SECTION 5.10.

  	
  Rights and Remedies Cumulative

  	
  50

  
	
  SECTION 5.11.

  	
  Delay or Omission Not Waiver

  	
  51

  
	
  SECTION 5.12.

  	
  Control by Holders

  	
  51

  
	
  SECTION 5.13.

  	
  Waiver of Past Defaults

  	
  51

  
	
  SECTION 5.14.

  	
  Undertaking for Costs

  	
  51

  
	
  SECTION 5.15.

  	
  Waiver of Stay or Extension Laws

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  
	
   

  
	
  The
  Trustee

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Certain Duties and Responsibilities

  	
  52

  
	
  SECTION 6.02.

  	
  Notice of Defaults

  	
  53

  
	
  SECTION 6.03.

  	
  Certain Rights of Trustee

  	
  53

  
	
  SECTION 6.04.

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  55

  
	
  SECTION 6.05.

  	
  May Hold Securities

  	
  55

  
	
  SECTION 6.06.

  	
  Money Held in Trust

  	
  55

  
	
  SECTION 6.07.

  	
  Compensation and Reimbursement

  	
  55

  
	
  SECTION 6.08.

  	
  Conflicting Interests

  	
  56

  
	
  SECTION 6.09.

  	
  Corporate Trustee Required; Eligibility

  	
  56

  
	
  SECTION 6.10.

  	
  Resignation and Removal; Appointment of Successor

  	
  56

  
	
  SECTION 6.11.

  	
  Acceptance of Appointment by Successor

  	
  58

  
	
  SECTION 6.12.

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  58

  



 


5

















 


	
  SECTION 6.13.

  	
  Preferential Collection of Claims Against the Company or a
  Guarantor

  	
  59

  
	
  SECTION 6.14.

  	
  Appointment of Authenticating Agent

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  
	
   

  
	
  Holders’
  Lists and Reports by Trustee and Company

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Company to Furnish Trustee Names and Addresses of Holders

  	
  60

  
	
  SECTION 7.02.

  	
  Preservation of Information; Communications to Holders

  	
  60

  
	
  SECTION 7.03.

  	
  Reports by Trustee

  	
  61

  
	
  SECTION 7.04.

  	
  Reports by Company

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  
	
   

  
	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Company May Consolidate, Etc. Only on Certain Terms

  	
  61

  
	
  SECTION 8.02.

  	
  Successor Substituted

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  
	
  Amendments; Waivers;
  Supplemental Indentures

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Amendments, Waivers and Supplemental Indentures Without
  Consent of Holders

  	
  63

  
	
  SECTION 9.02.

  	
  Modifications, Amendments and Supplemental Indentures with
  Consent of Holders

  	
  64

  
	
  SECTION 9.03.

  	
  Execution of Supplemental Indentures

  	
  65

  
	
  SECTION 9.04.

  	
  Effect of Supplemental Indentures

  	
  65

  
	
  SECTION 9.05.

  	
  Conformity with Trust Indenture Act

  	
  65

  
	
  SECTION 9.06.

  	
  Reference in Securities to Supplemental Indentures

  	
  66

  
	
  SECTION 9.07.

  	
  Waiver of Certain Covenants

  	
  66

  
	
  SECTION 9.08.

  	
  No Liability for Certain Persons

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  
	
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Payment of Principal, Premium and Interest

  	
  66

  
	
  SECTION 10.02.

  	
  Maintenance of Office or Agency

  	
  67

  
	
  SECTION 10.03.

  	
  Money for Security Payments to be Held in Trust

  	
  67

  
	
  SECTION 10.04.

  	
  Existence; Activities

  	
  68

  
	
  SECTION 10.05.

  	
  Maintenance of Properties

  	
  68

  



 


6

















 


	
  SECTION 10.06.

  	
  Payment of Taxes and Other Claims

  	
  69

  
	
  SECTION 10.07.

  	
  Maintenance of Insurance

  	
  69

  
	
  SECTION 10.08.

  	
  Limitation on Indebtedness

  	
  69

  
	
  SECTION 10.09.

  	
  Limitation on Restricted Payments

  	
  73

  
	
  SECTION 10.10.

  	
  Limitation on Preferred Stock of Restricted Subsidiaries

  	
  77

  
	
  SECTION 10.11.

  	
  Limitation on Transactions with Affiliates

  	
  78

  
	
  SECTION 10.12.

  	
  Limitation on Liens

  	
  79

  
	
  SECTION 10.13.

  	
  Change of Control

  	
  79

  
	
  SECTION 10.14.

  	
  Disposition of Proceeds of Asset Sales

  	
  80

  
	
  SECTION 10.15.

  	
  Limitation on Dividends and Other Payment Restrictions
  Affecting Restricted Subsidiaries

  	
  83

  
	
  SECTION 10.16.

  	
  Additional Subsidiary Guarantees

  	
  84

  
	
  SECTION 10.17.

  	
  Limitations on Designation of Unrestricted Subsidiaries

  	
  84

  
	
  SECTION 10.18.

  	
  Provision of Financial Information

  	
  85

  
	
  SECTION 10.19.

  	
  Statement by Officers as to Default; Compliance
  Certificates

  	
  85

  
	
  SECTION 10.20.

  	
  Limitation of the Issuance of Subordinated Indebtedness

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  
	
   

  
	
  Redemption
  of Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Right of Redemption/Mandatory Redemption

  	
  86

  
	
  SECTION 11.02.

  	
  Applicability of Article

  	
  86

  
	
  SECTION 11.03.

  	
  Election to Redeem; Notice to Trustee

  	
  86

  
	
  SECTION 11.04.

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  86

  
	
  SECTION 11.05.

  	
  Notice of Redemption

  	
  87

  
	
  SECTION 11.06.

  	
  Deposit of Redemption Price

  	
  88

  
	
  SECTION 11.07.

  	
  Securities Payable on Redemption Date

  	
  88

  
	
  SECTION 11.08.

  	
  Securities Redeemed in Part

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  
	
   

  
	
  Defeasance
  and Covenant Defeasance

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Company’s Option to Effect Defeasance or Covenant
  Defeasance

  	
  89

  
	
  SECTION 12.02.

  	
  Defeasance and Discharge

  	
  89

  
	
  SECTION 12.03.

  	
  Covenant Defeasance

  	
  89

  
	
  SECTION 12.04.

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  90

  
	
  SECTION 12.05.

  	
  Deposited Money and U.S. Government Obligations to Be Held
  in Trust; Miscellaneous Provisions

  	
  92

  
	
  SECTION 12.06.

  	
  Reinstatement

  	
  92

  



 


7

















 


	
  ARTICLE
  XIII

  
	
   

  
	
  Guarantee

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
  Guarantee

  	
  93

  
	
  SECTION 13.02.

  	
  Limitation on Liability

  	
  95

  
	
  SECTION 13.03.

  	
  Execution and Delivery of Guarantees

  	
  95

  
	
  SECTION 13.04.

  	
  Guarantors May Consolidate, Etc., on Certain Terms

  	
  96

  
	
  SECTION 13.05.

  	
  Release of Guarantors

  	
  96

  
	
  SECTION 13.06.

  	
  Successors and Assigns

  	
  96

  
	
  SECTION 13.07.

  	
  No Waiver, etc

  	
  96

  
	
  SECTION 13.08.

  	
  Modification, etc

  	
  96

  
	
  SECTION 13.09.

  	
  Subordination of Guarantee

  	
  97

  
	
   

  
	
  ARTICLE
  XIV

  
	
   

  
	
  Subordination

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01.

  	
  Agreement to Subordinate,
  Securities Subordinate to Senior Indebtedness and Senior to Subordinated
  Indebtedness

  	
  97

  
	
  SECTION 14.02.

  	
  Payment Over of Proceeds Upon Dissolution, Etc

  	
  97

  
	
  SECTION 14.03.

  	
  No Payment When Designated Senior Indebtedness is in
  Default

  	
  98

  
	
  SECTION 14.04.

  	
  Subrogation to Rights of Holders of Senior Indebtedness

  	
  99

  
	
  SECTION 14.05.

  	
  Provisions Solely to Define Relative Rights

  	
  99

  
	
  SECTION 14.06.

  	
  Trustee to Effectuate Subordination

  	
  99

  
	
  SECTION 14.07.

  	
  No Waiver of Subordination Provisions

  	
  100

  
	
  SECTION 14.08.

  	
  Notice to Trustee

  	
  100

  
	
  SECTION 14.09.

  	
  Reliance on Judicial Order or Certificate of Liquidating
  Agent

  	
  101

  
	
  SECTION 14.10.

  	
  Trustee Not Fiduciary for Holders of Senior Indebtedness

  	
  101

  
	
  SECTION 14.11.

  	
  Rights of Trustee as Holder of Senior Indebtedness;
  Preservation of Trustee’s Rights

  	
  101

  
	
  SECTION 14.12.

  	
  Article Applicable to Paying Agents

  	
  102

  
	
   

  	
   

  	
   

  
	
  Schedule
  A

  	
  The
  Guarantors

  	
   

  
	
  Appendix

  	
  Provisions
  Relating to the Securities

  	
   

  
	
  Exhibit
  A

  	
  Form
  of Security

  	
   

  
	
  Exhibit
  B

  	
  Form
  of Notation on Security Relating to Guarantee

  	
   

  



 


8
















 


INDENTURE, dated as of October 26, 2010, among
UNITED RENTALS (NORTH AMERICA), INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the “Company”), having its principal office at Five Greenwich Office Park,
Greenwich, Connecticut 06830, UNITED RENTALS, INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called “Holdings”), the Subsidiaries of the Company named in Schedule A and
THE BANK OF NEW YORK MELLON, a New York banking corporation, having its
principal corporate trust office at 101 Barclay Street, New York, New York
10286, as trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The
Company has duly authorized the creation of an issue of 8.375% Senior
Subordinated Notes Due 2020 of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.


 


Each
Guarantor desires to make the Guarantee provided herein and has duly authorized
the execution and delivery of this Indenture.


 


All
things necessary to make the Securities, when executed by the Company,
authenticated and delivered hereunder and duly issued by the Company, and each
Guarantee, when executed and delivered hereunder by each Guarantor, the valid
and legally binding obligations of the Company and each Guarantor, and to make
this Indenture a valid and legally binding agreement of the Company and each
Guarantor, in accordance with their and its terms, have been done.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


For
and in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:


 


ARTICLE
I


 


Definitions
and Other Provisions

of General Application


 


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


 


(1) the terms defined in this Article have the meanings assigned to
them in 


 

















 


this
Article and include the plural as well as the singular;


 


(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;


 


(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP (whether or not such is indicated
herein);


 


(4) unless the context otherwise requires, any reference to an “Article”
or a “Section” refers to an Article or Section, as the case may be, of this
Indenture;


 


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


 


(6) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each case as
amended from time to time;


 


(7) “or” is not exclusive;


 


(8) “including” means including without limitation;


 


(9) unsecured Indebtedness shall not be deemed to be subordinate or
junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;


 


(10) the principal amount of any non-interest bearing or other discount
security at any date shall be the principal amount thereof that would be shown
on a balance sheet of the issuer dated such date prepared in accordance with
GAAP;


 


(11) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater; and


 


(12) all references to the date the Securities were originally issued
shall refer to the Issue Date, except as otherwise specified.


 


Whenever
this Indenture requires that a particular ratio or amount be calculated with
respect to a specified period after giving effect to certain transactions or
events on a pro forma basis, such calculation shall be made as if the
transactions or events occurred on the first day of such period, unless
otherwise specified.


 


2

















 


“17/8%
Convertible Notes” means the $115 million aggregate principal amount
of 17/8% Convertible Senior
Subordinated Notes due October 15, 2023 issued by the Company under an
indenture, dated as of October 31, 2003, among the Company, as issuer,
Holdings, as guarantor, and The Bank of New York Mellon, as trustee.


 


“4% Notes” means the $173 million aggregate principal amount
of the 4% Convertible Senior Notes due 2015 issued by Holdings under an
indenture dated as of November 17, 2009, between Holdings and The Bank of New
York Mellon, as trustee.


 


“7% Notes” means the $261 million aggregate principal amount
of 7% Senior Subordinated Notes due 2014 issued by the Company under an
indenture, dated as of January 25, 2004, among the Company, as issuer, Holdings
and certain of the Company’s United States subsidiaries, as guarantors, and The
Bank of New York Mellon, as trustee.


 


“73⁄4% Notes” means the $484 million aggregate principal amount
of  73⁄4% Senior Subordinated Notes due
2013 issued by the Company under an indenture, dated as of November 12,
2003, among the Company, as issuer, Holdings and certain of the Company’s
United States subsidiaries, as guarantors, and The Bank of New York Mellon, as
trustee.


 


“9.25% Notes” means the $500 million aggregate principal
amount of 9.25% Senior Notes due 2019 issued by the Company under an indenture,
dated as of November 17, 2009, between the Company and The Bank of New York
Mellon, as trustee.


 


“10.875% Notes” means the $500 million aggregate principal
amount of 10.875% Senior Notes due 2016 issued by the Company under an
indenture, dated as of June 9, 2009, among the Company, as issuer, Holdings and
certain of the Company’s United States subsidiaries, as guarantors, and The
Bank of New York Mellon, as trustee.


 


“Acquired Indebtedness” means Indebtedness of a Person (a)
assumed in connection with an Asset Acquisition from such Person or (b)
existing at the time such Person becomes a Subsidiary of any other Person and
not incurred in connection with, or in contemplation of, such Asset Acquisition
or such Person becoming a Subsidiary.


 


“Act,” when used with respect to any
Holder, has the meaning specified in Section 1.04.


 


“Additional Securities” means, subject to the Company’s
compliance with Section 10.08, 8.375% Senior Subordinated Notes Due 2020
issued from time to time after the Issue Date under the terms of this Indenture
(other than pursuant to Sections 3.04, 3.05, 3.06 or 11.08 of this
Indenture).


 


“Affiliate” means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person’s Capital
Stock or (iii) any officer or 


 


3

















 


director
of (A) any such specified Person, (B) any Subsidiary of such specified Person
or (C) any Person described in clause (i) or (ii) above.


 


“Asset Acquisition” means (a) an Investment by the Company or any Restricted
Subsidiary in any other Person pursuant to which such Person shall become a
Restricted Subsidiary, or shall be merged with or into the Company or any
Restricted Subsidiary or a transaction pursuant to which the Company merges
with or into any other Person and such Person assumes the obligations of the
Company in accordance with Article VIII or (b) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute all
or substantially all of the assets of such Person, any division or line of
business of such Person or any other properties or assets of such Person other
than in the ordinary course of business.


 


“Asset Sale”
means any sale, issuance, conveyance, transfer, lease or other disposition by
the Company or any Restricted Subsidiary to any Person other than the Company
or a Restricted Subsidiary, of (a) any Capital Stock of any Restricted
Subsidiary; (b) all or substantially all of the properties and assets of any
division or line of business of the Company or any Restricted Subsidiary; or
(c) any other properties or assets of the Company or any Restricted Subsidiary,
other than in the case of clause (a), (b) or (c) above, (i) sales, conveyances,
transfers, leases or other dispositions of obsolete, damaged or used equipment
or other equipment or inventory in the ordinary course of business, (ii) sales,
conveyances, transfers, leases or other dispositions of assets in one or a
series of related transactions for an aggregate consideration of less than
$35,000,000, (iii) for purposes of Section 10.14 only, (x) a disposition
that constitutes a Restricted Payment permitted by Section 10.09 or a
Permitted Investment, (y) a disposition of all or substantially all the assets
of the Company in accordance with the provisions of Article VIII and (z)
any sale, issuance, conveyance, transfer, lease or other disposition of
properties or assets in connection with a Securitization Transaction, (iv) any
exchange of like property pursuant to or intended to qualify under Section 1031
(or any successor section) of the Code, and to be used in a Related Business,
(v) any disposition arising from foreclosure, condemnation or similar action
with respect to any property or other assets, or exercise of termination rights
under any lease, license, concession or agreement and (vi) a disposition of
Capital Stock of a Restricted Subsidiary pursuant to an agreement or other
obligation with or to a Person (other than the Company or a Restricted
Subsidiary) from which such Restricted Subsidiary was acquired, or from whom
such Restricted Subsidiary acquires its business and assets (having been newly
formed in connection with such acquisition), entered into in connection with
such acquisition.


 


“Asset Sale Offer” has the meaning specified in Section 10.14.


 


“Asset Sale Offer Price” has the meaning specified in
Section 10.14.


 


“Attributable Debt” in respect of a Sale/Leaseback Transaction means, 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 during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended); provided, 


 


4

















 


however, that if such Sale/Leaseback
Transaction results in a Capitalized Lease Obligation, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of “Capitalized Lease Obligation.”


 


“Authenticating Agent” means any Person authorized by the
Trustee pursuant to Section 6.14 hereof to act on behalf of the Trustee to
authenticate Securities.


 


“Average Life to Stated Maturity” means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from
such date to the date or dates of each successive scheduled principal payment
(including, without limitation, any sinking fund requirements) of such
Indebtedness and (b) the amount of each such principal payment by
(ii) the sum of all such principal payments.


 


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


 


“Board of Directors” means the board of directors of a company or its equivalent,
including managers of a limited liability company, general partners of a
partnership or trustees of a business trust, or any duly authorized committee
thereof.


 


“Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of a company to have been duly adopted by the Board of
Directors of such company and to be in full force and effect on the date of
such certification, and delivered to the Trustee.


 


“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan,
The City of New York, are authorized or obligated by law or executive order to
close.


 


“Capital Stock” means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person’s capital stock or equity participations, and any rights (other
than debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock and, including, without
limitation, with respect to partnerships, limited liability companies or
business trusts, ownership interests (whether general or limited) and 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, such partnerships,
limited liability companies or business trusts.


 


“Capitalized Lease Obligation” means any obligation under a lease
of (or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture,
the amount of such obligation at any date shall be the capitalized amount thereof
at such date, determined in accordance with GAAP.


 


5

















 


“Cash Equivalents” means, at any time, (a) any evidence of Indebtedness,
maturing not more than one year after such time, issued or guaranteed by the
United States Government or any agency thereof, (b) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case rated at least A-1 by S&P or P-1 by Moody’s,
(c) any certificate of deposit (or time deposits represented by such
certificates of deposit) or bankers’ acceptance, maturing not more than one
year after such time, or overnight federal funds transactions that are issued
or sold by a commercial banking institution that is a member of the Federal Reserve
System and has a combined capital and surplus and undivided profits of not less
than $500,000,000, (d) any repurchase agreement entered into with any
commercial banking institution of the stature referred to in clause (c)
which (i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c) and
(ii) has a market value at the time such repurchase agreement is entered into
of not less than 100% of the repurchase obligation of such commercial banking
institution thereunder, (e) investments in short term asset management
accounts managed by any bank party to a Credit Facility which are invested in
indebtedness of any state or municipality of the United States or of the
District of Columbia and which are rated under one of the two highest ratings
then obtainable from S&P or by Moody’s or investments of the types
described in clauses (a) through (d) above, and (f) investments in
funds investing primarily in investments of the types described in
clauses (a) through (e) above.


 


“Change of Control” means the occurrence of any of the following events:
(a) any “person” or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) (in the case of the Company, excluding
Holdings), is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of
the total Voting Stock of the Company or Holdings; (b) the Company or
Holdings consolidates with, or merges with or into, another Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its properties and assets as an entirety to any Person,
other than, with respect to the Company, to a Subsidiary Guarantor, and, with
respect to Holdings, to the Company or a Subsidiary Guarantor, or any Person
consolidates with, or merges with or into, the Company or Holdings other than
any such transaction involving a merger or consolidation where (i) the
outstanding Voting Stock of the Company or Holdings is converted into or
exchanged for Voting Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation and (ii) immediately after such transaction
no “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), excluding Holdings, is the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have “beneficial ownership” of all securities that such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total Voting Stock of the surviving or transferee corporation;
(c) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of the Company or
Holdings (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the Company
or Holdings was approved by a vote of the majority of the directors 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) 


 


6

















 


cease
for any reason to constitute a majority of the Board of Directors of the
Company or Holdings then in office; or (d) the Company is liquidated or
dissolved or adopts a plan of liquidation.


 


“Change of Control Offer” has the meaning specified in
Section 10.13.


 


“Change of Control Purchase Date” has the meaning specified in
Section 10.13.


 


“Code” means the Internal Revenue Code of 1986, as amended,
including any successor or amendatory statutes and any applicable rules,
regulations, notices or orders promulgated thereunder.


 


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


 


“Common Stock” means the common stock, par value $.01 per share, of Holdings.


 


“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.


 


“Company Order” or “Company Request” means a written order or request
signed in the name of the Company by its Chairman of the Board of Directors,
its Chief Executive Officer, its Chief Financial Officer, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee or Paying Agent, as
applicable.


 


“Consolidated Cash Flow Available for Fixed Charges” means, with respect to any Person
for any period, (i) the sum of, without duplication, the amounts for such
period, taken as a single accounting period, of (a) Consolidated Net
Income, (b) Consolidated Non-cash Charges, (c) Consolidated Interest
Expense, (d) Consolidated Income Tax Expense (other than income tax
expense (either positive or negative) attributable to extraordinary gains or
losses), and (e) any fees, expenses or charges related to any equity
offering, Investment, merger, acquisition, disposition, consolidation,
recapitalization or the incurrence or repayment of Indebtedness permitted by
this Indenture (including any refinancing or amendment of any of the foregoing)
(whether or not consummated or incurred), less: (ii)(x) non-cash items
increasing Consolidated Net Income and (y) all cash payments during such
period relating to non-cash charges that were added back in determining
Consolidated Cash Flow Available for Fixed Charges in the most recent Four
Quarter Period.


 


7
















 


“Consolidated Current Liabilities”  as
of the date of determination means the aggregate amount of liabilities of the
Company and its consolidated Restricted Subsidiaries which may properly be
classified as current liabilities (including taxes accrued as estimated), on a
consolidated basis, after eliminating (i) all intercompany items between
the Company and any Restricted Subsidiary and (ii) all current maturities
of long-term Indebtedness, all as determined in accordance with GAAP
consistently applied.


 


“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person,
the ratio of the aggregate amount of Consolidated Cash Flow Available for Fixed
Charges of such Person for the four full fiscal quarters, treated as one
period, for which financial information in respect thereof is available
immediately preceding the date of the transaction (the “Transaction Date”) giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (such four full fiscal quarter period being referred to
herein as the “Four Quarter Period”) to the aggregate amount of
Consolidated Fixed Charges of such Person for the Four Quarter Period.  The Consolidated Fixed Charge Coverage Ratio
shall be calculated after giving pro forma effect to: (a) the incurrence of
Indebtedness requiring calculation of the Consolidated Fixed Charge Coverage
Ratio and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness were
incurred at the beginning of the Four Quarter Period; (b) the incurrence,
repayment, defeasance, retirement or discharge of any other Indebtedness by the
Company and its Restricted Subsidiaries since the first day of the Four Quarter
Period as if such Indebtedness was incurred, repaid, defeased, retired or
discharged at the beginning of the Four Quarter Period (except that, in making
such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during the Four Quarter Period); and (c) any Asset Sale or
Asset Acquisition occurring since the first day of the Four Quarter Period
(including to the date of calculation) as if such acquisition or disposition
occurred at the beginning of the Four Quarter Period.  Whenever pro forma effect is to be given to
an Asset Acquisition, the pro forma calculations shall be determined in good
faith by the chief financial officer of the Company. Any such pro forma
calculations may include operating expense reductions and other operating
improvements or synergies for such period resulting from the acquisition which
is being given pro forma effect that (i) would be permitted pursuant to Article XI
of Regulation S-X under the Securities Act or (ii) have been realized or
for which the steps necessary for realization have been taken or are reasonably
expected to be taken within six months following any such acquisition,
including, but not limited to, the execution or termination of any contracts,
the termination of any personnel or the closing (or approval by the Board of
Directors of any closing) of any facility, as applicable; provided that, in either case, such
adjustments are set forth in an officers’ certificate signed by the Company’s
chief financial officer and another officer that states (A) the amount of
such adjustment or adjustments, (B) that such adjustment or adjustments
are based on the reasonable good faith beliefs of the officers executing such
officers’ certificate at the time of such execution and (C) that any
related incurrence of Indebtedness is permitted pursuant to this
Indenture.  In calculating “Consolidated
Fixed Charges” for purposes of determining the denominator (but not the
numerator) of this “Consolidated Fixed Charge Coverage Ratio,” (i) interest
on outstanding Indebtedness determined on a fluctuating basis as of


 


8

















 


the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and
(ii) if interest on any Indebtedness actually incurred on the Transaction
Date may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate or other rates,
then the interest rate in effect on the Transaction Date will be deemed to have
been in effect during the Four Quarter Period. 
If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, this definition shall
give effect to the incurrence of such guaranteed Indebtedness as if such Person
or such Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness.


 


“Consolidated Fixed Charges” means, with respect to any Person
for any period, the sum of, without duplication, the amounts for such period of
(i) Consolidated Interest Expense and (ii) the aggregate amount of
dividends and other distributions paid or accrued during such period in respect
of Redeemable Capital Stock of such Person and its Restricted Subsidiaries on a
consolidated basis.


 


“Consolidated Income Tax Expense” means, with respect to any Person
for any period, the provision for federal, state, local and foreign income
taxes of such Person and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Interest Expense” means, with respect to any Person
for any period, without duplication, the sum of (i) the interest expense,
net of any interest income, of such Person and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) any amortization of debt discount,
(b) the net cost under Interest Rate Protection Obligations (including any
amortization of discounts), (c) the interest portion of any deferred
payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers’ acceptance financing
or similar facilities and (e) all accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during
such period as determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Net Income” means, with respect to any Person,
for any period, the consolidated net income (or loss) of such Person and its
Restricted Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income, by excluding,
without duplication, (i) any extraordinary, unusual, or non-recurring
gain, loss, expense or charge (including without limitation fees, expenses and
charges associated with any merger, acquisition, disposition or consolidation
after the Issue Date), (ii) (A) the portion of net income of such
Person and its Restricted Subsidiaries allocable to minority interests in
unconsolidated Persons or to Investments in Unrestricted Subsidiaries to the
extent that cash dividends or distributions have not actually been received by
such Person or one of its Restricted Subsidiaries and (B) the portion of
net loss of such Person and its Restricted Subsidiaries


 


9

















 


allocable
to minority interests in unconsolidated Persons or to Investments in
Unrestricted Subsidiaries shall be included to the extent of the aggregate
investment of the Company or any Restricted Subsidiary in such Person,
(iii)  gains or losses in respect of any Asset Sales by such Person or one
of its Restricted Subsidiaries (net of fees and expenses relating to the
transaction giving rise thereto), on an after-tax basis, (iv) the net
income of any Restricted Subsidiary of such Person to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to
that Restricted Subsidiary or its stockholders (other than restrictions that
have been waived or otherwise released), (v) any gain or loss realized as
a result of the cumulative effect of a change in accounting principles,
(vi) the write-off of any issuance costs incurred by the Company in
connection with the refinancing or repayment of any Indebtedness, (vii) any
net after-tax gain (or loss) attributable to the early repurchase,
extinguishment or conversion of Indebtedness, hedging obligations or other
derivative instruments (including any premiums paid), (viii) any non-cash
income (or loss) related to the recording of the Fair Market Value of Interest
Rate Protection Agreements and Fuel Hedging Agreements entered into in the
ordinary course of business and not for speculative purposes, (ix) any
non-cash compensation deduction as a result of any grant of stock or stock
related instruments to employees, officers, directors or members of management,
(x) any income (or loss) from discontinued operations, (xi) any
unrealized foreign currency transaction gains or losses in respect of
Indebtedness of any Person denominated in a currency other than the functional
currency of such Person, (xii) to the extent covered by insurance and
actually reimbursed, or, so long as the Company has made a determination that
there exists reasonable evidence that such amount will in fact be reimbursed by
the insurer and only to the extent that such amount is (a) not denied by
the applicable carrier in writing within 180 days and (b) in fact
reimbursed within 365 days of the date of such evidence (with a deduction for
any amount so added back to the extent not so reimbursed within 365 days),
expenses with respect to liability or casualty events or business interruption;
provided that, to the extent
included in Consolidated Net Income in a future period, reimbursements with
respect to expenses excluded from the calculation of Consolidated Net Income
pursuant to this clause (xii) shall be excluded from Consolidated Net
Income in such period up to the amount of such excluded expenses and (xiii) any
goodwill or other intangible asset impairment charge.


 


“Consolidated Net Tangible Assets” as of any date of
determination, means the total amount of assets (less accumulated depreciation
and amortization, allowances for doubtful receivables, other applicable
reserves and other properly deductible items) which would appear on a
consolidated balance sheet of the Company and its consolidated Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, and
after giving effect to purchase accounting and reflecting any Asset Acquisition
or Asset Sale consummated on or prior to such date and after deducting
therefrom Consolidated Current Liabilities and, to the extent otherwise
included, the amounts of, (i) minority interests in consolidated
Subsidiaries held by Persons other than the Company or a Restricted Subsidiary;
(ii) excess of cost over fair value of assets of businesses acquired, as
determined in good faith by the Board of Directors of the Company; (iii) any
revaluation or other write-up in book value of assets subsequent to the 


 


10

















 


Issue
Date as a result of a change in the method of valuation in accordance with GAAP
consistently applied; (iv) unamortized debt discount and expenses and
other unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items; (v) treasury stock; (vi) cash
set apart and held in a sinking or other analogous fund established for the
purpose of redemption or other retirement of Capital Stock to the extent such
obligation is not reflected in Consolidated Current Liabilities; and (vii) Investments
in and assets of Unrestricted Subsidiaries.


 


“Consolidated Non-cash Charges” means, with respect to any Person
for any period, the aggregate depreciation, amortization (including
amortization of goodwill and other intangibles) and other non-cash expenses of
such Person and its Restricted Subsidiaries reducing Consolidated Net Income of
such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss).


 


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


 


“Corporate Trust Office” means the office of the Trustee at
which at any particular time its principal corporate trust business shall be
administered, which address as of the date of this Indenture is located at 101
Barclay Street, Floor 8 West, New York, New York 10286, Attention: Corporate
Trust Administration or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders and
the Company).


 


“corporation” means (except in the definition of “Subsidiary”) a
corporation, association, company, joint stock company or business trust.


 


“Covenant Defeasance” has the meaning specified in Section 12.03.


 


“Credit Agreement” means the Credit Agreement, dated June 9, 2008, by and
among Holdings, the Company, certain subsidiaries, the lenders referred to
therein, Bank of America, N.A., as Agent, U.S. Swingline Lender and Letter of
Credit Issuer, Bank of America, N.A., (acting through its Canada Branch), as
Canadian Swingline Lender and as a Canada Funding Bank, UBS Securities, as
Syndication Agent, UBS AG Canada Branch, as a Canadian Funding Bank, Wachovia
Bank, National Association, as Co-Documentation Agent, Wachovia Capital Finance
Corporation (Canada), as a Canadian Funding Bank, and Wells Fargo Foothill,
LLC, as Co-Documentation Agent, together with the related documents thereto
(including the term loans and revolving loans thereunder, any guarantees and
any security documents), as amended, extended, renewed, restated, supplemented
or otherwise modified (in whole or in part, and without limitation as to
amount, terms, conditions, covenants and other provisions) from time to time,
and


 


11

















 


any
agreements, indentures or other instruments (and related documents) governing
any form of Indebtedness incurred to refinance or replace, in whole or in part,
the borrowings and commitments at any time outstanding or permitted to be outstanding
under such Credit Agreement or successor Credit Agreements, whether by the same
or any other lender or holder of Indebtedness or group of lenders and whether
to the same obligor or different obligors.


 


“Credit Facility” means one or more debt facilities or
agreements (including the Credit Agreement), commercial paper facilities,
securities purchase agreements, indentures or similar agreements, in each case,
with banks or other institutional lenders or investors providing for, or acting
as initial purchasers of, revolving loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables),
notes, debentures, letters of credit or the issuance and sale of securities
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case, as amended,
extended, renewed, restated, supplemented or otherwise modified (in whole or in
part, and without limitation as to amount, terms, conditions, covenants and
other provisions) from time to time, and any agreements, indentures or other
instruments (and related documents) governing any form of Indebtedness incurred
to refinance or replace, in whole or in part, the borrowings and commitments at
any time outstanding or permitted to be outstanding under such facility or
agreement or successor facility or agreement, whether by the same or any other
lender or holder of Indebtedness or group of lenders and whether to the same
obligor or different obligors.


 


“Currency Agreement” means any foreign exchange contract,
currency swap agreement or other similar agreement with respect to currency
values.


 


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


 


“Defaulted Interest” has the meaning specified in Section 3.07.


 


“Defeasance” has the meaning specified in Section 12.02.


 


“Definitive Security” has the meaning specified in the Appendix.


 


“Depositary” means The Depository Trust Company, a New York corporation, or
its successor.


 


“Designated Senior Indebtedness” means (a) all
Indebtedness under the Credit Agreement (including the Guarantors’ Guarantees
of such Indebtedness) and (b) any other issues of Senior Indebtedness
which (i) at the time of the determination is equal to or greater than
$25 million in aggregate principal amount and (ii) is specifically
designated by the Company in the instrument evidencing such Senior Indebtedness
as “Designated Senior Indebtedness.”


 


“Designation”  has the
meaning specified in Section 10.17.


 


12

















 


“Designation Amount”  has the
meaning specified in Section 10.17.


 


“Disinterested Member of the Board of Directors of the
Company” means, with
respect to any transaction or series of transactions, a member of the Board of
Directors of the Company other than a member who has any material direct or
indirect financial interest in or with respect to such transaction or series of
transactions or is an Affiliate, or an officer, director or an employee of any
Person (other than the Company or Holdings) who has any direct or indirect
financial interest in or with respect to such transaction or series of
transactions.


 


“Domestic Subsidiary” means any Restricted Subsidiary that is created or organized
under the laws of the United States or any State, district or territory
thereof.


 


“Equipment Securitization Transaction” means any sale, assignment, pledge
or other transfer (a) by the Company or any Subsidiary of the Company of
rental fleet equipment, (b) by any ES Special Purpose Vehicle of leases or
rental agreements between the Company and/or any Subsidiary of the Company, as
lessee, on the one hand, and such ES Special Purpose Vehicle, as lessor, on the
other hand, relating to such rental fleet equipment and lease receivables
arising under such leases and rental agreements and (c) by the Company or
any Subsidiary of the Company of any interest in any of the foregoing, together
in each case with (i) any and all proceeds thereof (including all
collections relating thereto, all payments and other rights under insurance
policies or warranties relating thereto, all disposition proceeds received upon
a sale thereof, and all rights under manufacturers’ repurchase programs or
guaranteed depreciation programs relating thereto), (ii) any collection or
deposit account relating thereto and (iii) any collateral, guarantees,
credit enhancement or other property or claims supporting or securing payment
on, or otherwise relating to, any such leases, rental agreements or lease
receivables.


 


“ES Special Purpose Vehicle” means a trust, bankruptcy remote
entity or other special purpose entity which is a Subsidiary of the Company or
Holdings (or, if not a Subsidiary of the Company or Holdings, the common equity
of which is wholly owned, directly or indirectly, by the Company or Holdings)
and which is formed for the purpose of, and engages in no material business
other than, acting as a lessor, issuer or depositor in an Equipment
Securitization Transaction (and, in connection therewith, owning the rental
fleet equipment, leases, rental agreements, lease receivables, rights to
payment and other interests, rights and assets described in the definition of
Equipment Securitization Transaction, and pledging or transferring any of the
foregoing or interests therein).


 


“Event of Default” has the meaning specified in Section 5.01.


 


“Excess Proceeds” has the meaning specified in Section 10.14.


 


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


 


“Expiration Date” shall have the meaning set forth in the definition of “Offer
to Purchase.”


 


13

















 


“FASB” means the Financial Accounting Standards Board.


 


“Fair Market Value” means, with respect to any asset, the price which could be
negotiated in an arm’s-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction. 
Fair Market Value shall be determined by the Board of Directors of the
Company in good faith, whose determination shall be conclusive and evidenced by
a resolution of such Board of Directors.


 


“Foreign Subsidiary” means any Restricted Subsidiary not created or organized in
the United States or any state thereof or the District of Columbia and that
conducts substantially all its operations outside of the United States.


 


“Four Quarter Period” shall have the meaning set forth in the
definition of “Consolidated Fixed Charge Coverage Ratio.”


 


“Fuel Hedging Agreement” means any forward contract, swap,
option, hedge or other similar financial agreement designed to protect against
fluctuations in fuel prices.


 


“GAAP”
means generally accepted accounting principles set forth in the FASB
codification, which represents the source of authoritative U.S. GAAP recognized
by the FASB to be applied by non-governmental entities. Rules and
interpretive releases of the Commission under authority of federal securities
laws are also sources of authoritative GAAP for Commission registrants. The
codification supersedes all non-Commission accounting and reporting standards
which existed prior to the codification. All other nongrandfathered,
non-Commission accounting literature not included in the codification is
non-authoritative. GAAP is determined as of the date of any calculation or
determination required hereunder; provided that
the Company, on any date, may elect to establish that GAAP shall mean GAAP as
in effect on such date; provided further
that any such election, once made, shall be irrevocable. The Company shall give
notice of any such election to the Trustee and the Holders of the Securities.


 


“Global Security” has the meaning specified in the Appendix.


 


“guarantee” means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
nonperformance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts available to be drawn down under
letters of credit of another Person.  The
term “guarantee” used as a verb has a corresponding meaning.  The term “guarantor” shall mean any Person
providing a guarantee of any obligation.


 


“Guarantee” means each guarantee of the Securities contained in
Article XIII given by each Guarantor.


 


14

















 


“Guarantor” means Holdings and each Subsidiary of the Company
that executed this Indenture on the Issue Date and each other Subsidiary of the
Company that thereafter guarantees the Securities pursuant to the terms of this
Indenture.


 


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


 


“Guaranty Obligations”  has
the meaning specified in Section 13.01.


 


“Holder” means a Person in whose name a Security is registered in the
Security Register.


 


“Holdings” means the Person named as “Holdings” in the first paragraph of
this instrument.


 


“Indebtedness” means, with respect to any Person, without duplication,
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of
such Person in connection with any letters of credit, banker’s acceptance or
other similar credit transaction, (b) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments,
(c) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person (even if the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), but excluding trade accounts payable arising in the ordinary course
of business, (d) all Capitalized Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into by
such Person, (e) all Indebtedness referred to in the preceding clauses of
other Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness (the amount of such obligation being deemed to be the lesser of
the value of such property or asset or the amount of the obligation so
secured), (f) all guarantees of Indebtedness referred to in this
definition by such Person, (g) all Redeemable Capital Stock of such Person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all obligations under or in respect of
Interest Rate Protection Obligations of such Person, and (i) any
amendment, supplement, modification, deferral, renewal, extension, refinancing
or refunding of any liability of the types referred to in clauses (a) through
(h) above; provided, however, that Indebtedness shall not
include (i) any holdback or escrow of the purchase price of property,
services, businesses or assets or (ii) any contingent payment obligations
incurred in connection with the acquisition of assets or businesses, which are
contingent on the performance of the assets or businesses so acquired.  For purposes


 


15

















 


hereof,
the “maximum fixed repurchase price” of any Redeemable Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant hereto, and if such price is based upon, or measured by, the fair
market value of such Redeemable Capital Stock, such fair market value shall be
approved in good faith by the Board of Directors of the issuer of such Redeemable
Capital Stock. In the case of Indebtedness of other Persons, the payment of
which is secured by a Lien on property owned by a Person as referred to in
clause (e) above, the amount of the Indebtedness of such Person
attributable to such Lien at any date shall be the lesser of the Fair Market
Value at such date of any asset subject to such Lien and the amount of the
Indebtedness secured.


 


“Indenture” means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively.


 


“Independent Qualified Party” means an investment banking
firm, accounting firm or appraisal firm of national standing; provided, however, that
such firm is not an Affiliate of the Company.


 


“Interest Payment Date” means the Stated Maturity of an
installment of interest on the Securities.


 


“Initial Lien” has the meaning specified in Section 10.12.


 


“Interest Rate Protection Agreement” means, with respect to any Person, any
arrangement with any other Person whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.


 


“Interest Rate Protection Obligations” means the obligations of any Person
pursuant to any Interest Rate Protection Agreements.


 


“Investment” means, with respect to any Person, any direct or indirect loan
or other extension of credit (including, without limitation, a guarantee) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person.


 


“Issue Date” means October 26, 2010.


 


16

















 


“Lien”
means any mortgage, charge, pledge, lien (statutory or other), security interest,
hypothecation, assignment for security, claim, or preference or priority or
other encumbrance upon or with respect to any property of any kind.  A Person shall be deemed to own subject to a
Lien any property which such Person has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement.


 


“Maturity Date” means September 15, 2020.


 


“Moody’s” means Moody’s Investors Service, Inc. and its successors.


 


“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds thereof in
the form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents
(except to the extent that such obligations are financed or sold with recourse
to the Company or any Restricted Subsidiary of the Company) net of
(i) brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers,
recording fees, transfer fees and appraisers’ fees) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale,
(iii) amounts required to be paid to any Person (other than the Company or
any Restricted Subsidiary of the Company) owning a beneficial interest in the
assets subject to the Asset Sale, (iv) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, and (v) appropriate amounts to
be provided by the Company or any Restricted Subsidiary of the Company, as the
case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary of the Company, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officer’s Certificate delivered to the Trustee.


 


“Non-payment Default” has the meaning specified in Section 14.03.


 


“Notice of Default” means a written notice of the kind specified in
Section 6.02.


 


“Offer” means a Change of Control Offer or an Asset Sale Offer.


 


“Offer to Purchase” means an Offer sent by or on behalf of the Company by
first-class mail, postage prepaid, to each Holder of Securities at its address
appearing in the register for the Securities on the date of the Offer offering
to purchase up to the principal amount of Securities specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture).  Unless otherwise provided in
Sections 10.13 or 10.14 or otherwise required by applicable law, the Offer
shall specify an expiration date (the “Expiration
Date”) of the Offer
to Purchase, which shall be not less than 20 Business Days nor more than
60 days after the date of such Offer (or such later date as may be necessary
for the Company to comply with the Exchange Act), and a 


 


17

















 


settlement
date (the “Purchase Date”) for purchase of Securities to
occur no later than five Business Days after the Expiration Date.  The Company shall notify the Trustee at least
15 Business Days (or such shorter period as is acceptable to the Trustee) prior
to the mailing of the Offer of the Company’s obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company.  The Offer shall contain all the information
required by applicable law to be included therein.  The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Offer to Purchase. The Offer shall also state:


 


(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;


 


(2) the Expiration Date and the Purchase Date;


 


(3) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the “Purchase
Price”); and the
amount of accrued and unpaid interest to be paid;


 


(4) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1,000 principal
amount;


 


(5) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;


 


(6) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;


 


(7) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;


 


(8) that each Holder electing to tender all or any portion of a Security
pursuant to the Offer to Purchase will be required to surrender such Security
at the place or places specified in the Offer prior to the close of business on
the Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by the Holder
thereof or his attorney duly authorized in writing);


 


(9) that Holders will be entitled to withdraw all or any portion
of Securities tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the fifth Business Day next preceding the
Expiration Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security the Holder tendered, the
certificate number of the


 


18

















 


Security
the Holder tendered and a statement that such Holder is withdrawing all or a
portion of his tender;


 


(10) that (a) if Securities purchasable at an aggregate
Purchase Price less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall purchase all
such Securities and (b) if Securities purchasable at an aggregate Purchase
Price in excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Securities on a pro rata
basis based on the Purchase Price therefor or such other method as the Trustee
shall deem fair and appropriate (subject in each case to applicable rules of
the Depositary and any securities exchange upon which the Securities may then
be listed), with such adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 principal face amount or integral
multiples thereof shall be purchased; notwithstanding the foregoing, if the
Company is required to commence an Asset Sale Offer at any time when securities
of the Company ranking pari passu
in right of payment with the Securities are outstanding and the terms of such
securities provide that a similar offer must be made with respect to such other
securities, then the Asset Sale Offer for the Securities shall be made
concurrently with such other offers and securities of each issue will be
accepted on a pro rata basis in proportion to the aggregate principal amount of
securities of each issue which the holders thereof elect to have purchased; and


 


(11) that in the case of a Holder whose Security is purchased only in
part, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased portion
of the Security so tendered.


 


An
Offer to Purchase shall be governed by and effected in accordance with the
provisions of this Indenture pertaining to the type of Offer to which it
relates.


 


“Officer’s Certificate” means a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President
or a Vice President, the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.  One of the
officers signing an Officer’s Certificate given pursuant to Section 10.19
shall be the principal executive, financial or accounting officer of the
Company.


 


“Opinion of Counsel” means a written opinion of counsel, reasonably acceptable to
the Trustee, who may be counsel for the Company.


 


“Outstanding,” when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:


 


19
















 


(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;


 


(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided, however,
that, if such securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; provided further,
that the Paying Agent is not prohibited from paying such money to the Holders
on that date pursuant to Article XIV;


 


(iii) Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and


 


(iv) Securities as to which Defeasance has been effected pursuant
to Section 12.02;


 


provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding (it being understood that Securities to be
acquired by the Company pursuant to an Offer or other offer to purchase shall
not be deemed to be owned by the Company until legal title to such Securities
passes to the Company), except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded.  Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.


 


“Paying Agent” means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.  The Company has initially
appointed the Trustee as its Paying Agent pursuant to Section 10.02
hereof.


 


“Payment Blockage Period” has the meaning specified in Section 14.03.


 


20

















 


“Permitted Investments” means any of the following:


 


(i) Investments
in the Company or in a Restricted Subsidiary;


 


(ii) Investments
in another Person, if as a result of such Investment (A) such other Person
becomes a Restricted Subsidiary or (B) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its assets to, the Company or a Restricted Subsidiary;


 


(iii) Investments
representing Capital Stock, obligations or securities issued to the Company or
any of its Restricted Subsidiaries received in settlement of claims against any
other Person or a reorganization or similar arrangement of any debtor of the
Company or such Restricted Subsidiary, including upon the bankruptcy or
insolvency of such debtor, or as a result of foreclosure, perfection or
enforcement of any Lien;


 


(iv) Investments
in Interest Rate Protection Agreements on commercially reasonable terms entered
into by the Company or any of its Subsidiaries in the ordinary course of
business in connection with the operations of the business of the Company or
its Restricted Subsidiaries to hedge against fluctuations in interest rates on
its outstanding Indebtedness;


 


(v) Investments
in the Securities;


 


(vi) Investments
in Cash Equivalents;


 


(vii) Investments
in receivables owing to the Company or any Restricted Subsidiary created or
acquired in the ordinary course of business;


 


(viii) Investments
consisting of purchases and acquisitions of inventory, supplies, materials and
equipment or licenses, in any case, in the ordinary course of business and
otherwise in accordance with this Indenture;


 


(ix) Investments
acquired by the Company or any Restricted Subsidiary in connection with an
Asset Sale permitted under Section 10.14 to the extent such Investments
are non-cash proceeds as permitted under Section 10.14;


 


(x) advances
to employees or officers of the Company in the ordinary course of business and
additional loans to employees or officers, in an aggregate amount, together
with all other Permitted Investments made pursuant to this clause (x), at
any time outstanding not to exceed $10,000,000;


 


(xi) any
Investment to the extent that the consideration therefor is Capital Stock
(other than Redeemable Capital Stock) of the Company;


 


(xii) guarantees
(including guarantees of the Securities) of Indebtedness permitted to be
incurred under Section 10.08;


 


21

















 


(xiii) any
acquisition of assets solely in exchange for the issuance of Capital Stock
(other than Redeemable Capital Stock) of Holdings or the Company;


 


(xiv) Investments
in existence or made pursuant to legally binding written commitments in
existence on the Issue Date; and


 


(xv) other
Investments that, together with all other Investments made pursuant to this
clause (xv), shall not exceed the greater of $150,000,000 and 5% of
Consolidated Net Tangible Assets at any time outstanding, provided
that, if an Investment is made pursuant to this clause in a Person
that is not a Restricted Subsidiary and such Person subsequently becomes a
Restricted Subsidiary, such Investment shall thereafter be deemed to have been
made pursuant to clause (i) or (ii) of the definition of “Permitted
Investment”.


 


“Permitted Liens” means the following types of Liens:


 


(a) any Lien existing as of the Issue Date;


 


(b) Liens securing Indebtedness permitted under the provisions described
in clauses (ii) and (xi) of paragraph (b) of Section 10.08;


 


(c) any Lien securing Acquired Indebtedness created prior to (and
not created in connection with, or in contemplation of) the incurrence of such
Indebtedness by the Company or any Restricted Subsidiary, if such Lien does not
attach to any property or assets of the Company or any Restricted Subsidiary
other than the property or assets subject to the Lien prior to such incurrence;


 


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


 


(e) Liens on and pledges of the assets or Capital Stock of any
Unrestricted Subsidiary securing any Indebtedness of such Unrestricted
Subsidiary;


 


(f) Liens for taxes not delinquent or statutory Liens for taxes; provided that the payment of such taxes which are due and
payable is being contested in good faith by appropriate proceedings and as to
which the Company or its Restricted Subsidiaries shall have set aside on its
books such reserves as may be required pursuant to GAAP;


 


(g) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith and by appropriate proceedings;


 


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


 


22

















 


the
payment of borrowed money);


 


(i) (A) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which the Company or
any Restricted Subsidiary has easement rights or on any leased property and
subordination or similar agreements relating thereto and (B) any
condemnation or eminent domain proceedings affecting any real property;


 


(j) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired;


 


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


 


(l) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;


 


(m) Liens securing Indebtedness incurred pursuant to clauses (vi) or
(x) of paragraph (b) of Section 10.08;


 


(n) Liens securing Indebtedness incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions to,
property, plant or equipment of the Company or any Restricted Subsidiary; provided, however,
that the Lien may not extend to any other property owned by the Company or any
Restricted Subsidiary at the time the Lien is incurred (other than assets and
property affixed or appurtenant thereto), and the Indebtedness (other than any
interest thereon) secured by the Lien may not be incurred more than
180 days after the later of the acquisition, completion of construction,
repair, improvement, addition or commencement of full operation of the property
subject to the Lien;


 


(o) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;


 


(p) Liens securing refinancing Indebtedness permitted under
clause (xi) of paragraph (b) of Section 10.08, provided that such Liens do not exceed the Liens replaced in
connection with such refinanced Indebtedness;


 


(q) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset and
set-off;


 


23

















 


(r) Liens securing Interest Rate Protection Obligations which
Interest Rate Protection Obligations relate to Indebtedness that is secured by
Liens otherwise permitted to be incurred under this Indenture;


 


(s) customary Liens on assets of a Special Purpose Vehicle arising
in connection with a Securitization Transaction;


 


(t) any interest or title of a lessor, sublessor, licensee or
licensor under any lease, sublease, sublicense or license agreement not
prohibited by this Indenture;


 


(u) Liens attaching solely to cash earnest money deposits in
connection with any letter of intent or purchase agreement in connection with
an acquisition permitted under the terms of this Indenture;


 


(v) Liens on cash set aside at the time of the incurrence of any
Indebtedness or government securities purchased with such cash, in either case
to the extent that such cash or government securities prefund the payment of
interest on such Indebtedness and are held in an escrow account or similar arrangement
to be applied for such purpose;


 


(w) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into in the
ordinary course of business;


 


(x) any encumbrance or restriction (including, but not limited to,
put and call agreements) with respect to Capital Stock of any joint venture or
similar arrangement pursuant to any joint venture or similar agreement;


 


(y) Liens on insurance proceeds or unearned premiums incurred in
the ordinary course of business in connection with the financing of insurance
premiums;


 


(z) Liens created in favor of the Trustee pursuant to
Section 6.07 hereof; and


 


(aa) Liens incurred by the Company or any Restricted Subsidiary
with respect to obligations that, when added to all other obligations secured
by Liens incurred pursuant to this clause (aa), shall not exceed the
greater of $100,000,000 and 5% of Consolidated Net Tangible Assets at any time
outstanding.


 


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


 


“principal” of a Security means the principal of the Security
plus the premium, if any, payable on that Security which is due or overdue or
is to become due at the relevant time.


 


24

















 


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


 


“Public Equity Offering” means an underwritten public
offering of Common Stock, other than an offering to a Subsidiary of Holdings,
pursuant to a registration statement filed with the Commission in accordance
with the Securities Act, the net cash proceeds of which are contributed to the
Company as common equity capital.


 


“Purchase Amount” means, with respect to an Offer to Purchase, the maximum
aggregate amount payable by the Company for Securities under the terms of such
Offer to Purchase, if such Offer to Purchase were accepted in respect of all
Securities.


 


“Purchase Date” shall have the meaning set forth in the definition of “Offer
to Purchase.”


 


“Purchase Price” shall have the meaning set forth in the
definition of “Offer to Purchase.”


 


“Purchase Money Obligations” means any Indebtedness incurred
to finance or refinance the acquisition, leasing, construction or improvement
of property (real or personal) or assets (including Capital Stock), and whether
acquired through the direct acquisition of such property or assets or the
acquisition of the Capital Stock of any Person owning such property or assets,
or otherwise; provided that such Indebtedness
is incurred within 180 days after such acquisition.


 


“Qualified Equity Interest” in a Person
means Capital Stock of such Person, other than Redeemable Capital Stock.


 


“Receivables Securitization Transaction” means any sale, discount,
assignment or other transfer by the Company or any Subsidiary of the Company of
accounts receivable, lease receivables or other payment obligations owing to
the Company or such Subsidiary of the Company or any interest in any of the
foregoing, together in each case with any collections and other proceeds
thereof, any collection or deposit account related thereto, and any collateral,
guarantees or other property or claims supporting or securing payment by the
obligor thereon of, or otherwise related to, or subject to leases giving rise
to, any such receivables.


 


“Record Expiration Date” has the meaning specified in
Section 1.04.


 


“Redeemable Capital Stock” means any class or series of
Capital Stock that, either by its terms, by the terms of any security into
which it is convertible or exchangeable or by contract or otherwise, is or upon
the happening of an event or passage of time would be, required to be redeemed
prior to the Maturity Date or is redeemable at the option of the holder thereof
at any time prior to the Maturity Date, or is convertible 


 


25

















 


into
or exchangeable for debt securities at any time prior to the Maturity Date; provided, however, that Capital Stock will
not constitute Redeemable Capital Stock solely because the holders thereof have
the right to require the Company to repurchase or redeem such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale.


 


“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.


 


“Regular Record Date” for the interest payable on any Interest Payment Date means
the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.


 


“Related Business” means any business in which the Company or
any of the Restricted Subsidiaries was engaged on the Issue Date and any
business ancillary or complementary to such business.


 


“Replacement Assets” has the meaning specified in Section 10.14.


 


“Required Filing Dates” has the meaning specified in
Section 10.18.


 


“Responsible Officer,” when used with
respect to the Trustee, means any officer within the Corporate Trust Office,
including, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


“Restricted Payments” has the meaning specified in Section 10.09.


 


“Restricted Subsidiary” means any Subsidiary of the Company
that is not an Unrestricted Subsidiary or a Special Purpose Vehicle.


 


“Revocation” has the meaning set forth in Section 10.17.


 


“RS Special Purpose Vehicle” means a trust, bankruptcy remote
entity or other special purpose entity which is a Subsidiary of the Company or
Holdings (or, if not a Subsidiary of the Company or Holdings, the common equity
of which is wholly owned, directly or indirectly, by the Company or Holdings )
and which is formed for the purpose of, and engages in no material business
other than, acting as an issuer or a depositor in a Receivables Securitization
Transaction (and, in connection therewith, owning accounts receivable, lease
receivables, other rights to payment, leases and related assets and pledging or
transferring any of the foregoing or interests therein).


 


26

















 


“S&P” means Standard & Poor’s Ratings Group, and its successors.


 


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


 


“Securities” means the securities issued on the Issue Date and any
Additional Securities.


 


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


 


“Securities Custodian” has the meaning specified in the
Appendix.


 


“Securitization Transaction” means an Equipment Securitization
Transaction or a Receivables Securitization Transaction.


 


“Security Register” and “Security Registrar” have the respective meanings
specified in Section 3.05.


 


“Senior Indebtedness” means with respect to any Person:


 


(1) Indebtedness of such Person, whether outstanding on the Issue
Date or thereafter created, incurred or assumed; and


 


(2) accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating
to such Person whether or not post-filing interest is allowed in such
proceeding) in respect of (A) indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is responsible
or liable,


 


unless,
in the case of clauses (1) and (2) above, in the instrument creating
or evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such obligations are subordinate or pari passu in right of payment to the Securities or the
Guarantee of the Securities by such Person, as the case may be.


 


Without
limiting the generality of the foregoing, (x) “Senior Indebtedness” shall
include the principal of, premium, if any, and interest on all obligations of
every nature of any Person from time to time owed to the lenders under a Credit
Facility, including, without limitation, principal of and interest on, any
loans and letter of credit disbursements outstanding, and all fees, indemnities
and expenses payable, under a Credit Facility and (y) in the case of Designated
Senior Indebtedness, “Senior Indebtedness” shall include interest accruing
thereon subsequent to the occurrence of any Event of Default specified in
clause (7) or (8) under Section 5.01 relating to the
Company, whether or not the claim for such interest is allowed under any
applicable Bankruptcy Code.


 


27

















 


Notwithstanding
the foregoing, “Senior Indebtedness” shall not include:


 


(a) Indebtedness
evidenced by the Securities and the Guarantees;


 


(b) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) that is expressly subordinate or junior in right
of payment to any other Indebtedness or other obligation of such Person; provided that (i) Indebtedness shall
not be deemed to be expressly subordinate or junior in right of payment solely
because such Indebtedness is secured by Liens that are subordinated to other
Liens on the same assets and (ii) this clause (b) shall not
apply to Indebtedness that is secured by a Permitted Lien that is subordinated
in right of payment only to other Indebtedness that is also secured by a
Permitted Lien on the same assets;


 


(c)           Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of
the Bankruptcy Code, is without recourse to such Person;


 


(d)           Indebtedness which
is represented by Redeemable Capital Stock;


 


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


 


(f)            Indebtedness of or
amounts owed by such Person for compensation to employees or for services
rendered to such Person;


 


(g)           any liability for
federal, state, local or other taxes owed or owing by such Person;


 


(h)           Indebtedness of such
Person to a Subsidiary or any other Affiliate or any of such Affiliate’s
Subsidiaries; and


 


(i)            that portion of any
Indebtedness which is incurred in violation of this Indenture.


 


“Senior Subordinated Indebtedness” means
with respect to a Person, the Securities (in the case of the Company), a
Guarantee of the Securities (in the case of a Guarantor) and any other
Indebtedness of such Person that specifically provides that such Indebtedness
is to rank pari passu with the
Securities or such Guarantee of the Securities, as the case may be, in right of
payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of such Person that is not Senior Indebtedness
of such Person and the 17/8% Convertible Notes and the
guarantees thereof shall constitute Senior Subordinated Indebtedness.  The Securities and the Guarantees of the
Securities shall constitute Senior Subordinated Indebtedness for purposes of
the indentures governing the 17/8% Convertible Notes.


 


“Significant Subsidiary” of any Person means a Restricted
Subsidiary of such Person which would be a significant subsidiary of such
Person as determined in 


 


28

















 


accordance
with the definition in Rule 1-02(w) of Article 1 of
Regulation S-X promulgated by the Commission and as in effect on the Issue
Date.


 


“Special Purpose Vehicle” means an ES Special Purpose Vehicle
or an RS Special Purpose Vehicle.


 


“Special Record Date” for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 3.07.


 


“Standard Securitization Undertakings” means representations,
warranties, covenants and indemnities entered into by the Company or any of its
Restricted Subsidiaries that are reasonably customary in a Securitization
Transaction.


 


“Stated Maturity” means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.


 


“Subordinated Indebtedness” means, with respect to a Person, Indebtedness
of such Person (whether outstanding on the Issue Date or thereafter incurred)
which is subordinate or junior in right of payment to the Securities or a
Guarantee of the Securities of such Person, as the case may be, pursuant to a
written agreement to that effect.


 


“Subsidiary” means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a partnership, limited liability
company, business trust or joint venture, in which such Person, one or more
Subsidiaries thereof or such Person and one or more Subsidiaries thereof,
directly or indirectly, at the date of determination thereof, has at least
majority ownership interest entitled to vote in the election of directors,
managers or trustees thereof (or other Person performing similar
functions).  For purposes of this
definition, any directors’ qualifying shares or investments by foreign
nationals mandated by applicable law shall be disregarded in determining the
ownership of a Subsidiary.


 


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


 


“Subsidiary Guarantors” means the Subsidiaries of the Company
named in Schedule A, together with any additional Domestic Subsidiaries that
execute Guaranty Agreements in accordance with Section 10.16 of this
Indenture, and, in each case, their respective successors and assigns.


 


“Surviving Entity”  has the
meaning specified in Section 8.01.


 


29
















 


“Transaction Date” shall have the meaning set forth in the
definition of “Consolidated Fixed Charge Coverage Ratio.”


 


“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date
as of which this instrument was executed; provided,
however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act”
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 instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Trustee” shall
mean such successor Trustee.


 


“Underwriters” has the meaning specified in the Appendix.


 


“Underwriting Agreement” has the meaning specified in the
Appendix.


 


“Unrestricted Subsidiary” means each Subsidiary of the
Company designated as such pursuant to and in compliance with
Section 10.17 and each Subsidiary of such Unrestricted Subsidiary.


 


“U.S. Government Obligation” has the meaning specified in
Section 12.04.


 


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


 


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


 


“Wholly Owned Restricted Subsidiary” means any Restricted Subsidiary of
which 100% of the outstanding Capital Stock is owned by the Company or another
Wholly Owned Restricted Subsidiary.  For
purposes of this definition, any directors’ qualifying shares or investments by
foreign nationals mandated by applicable law shall be disregarded in
determining the ownership of a Subsidiary.


 


SECTION 1.02.
Compliance Certificates and Opinions.  Upon any application or request by the
Company or a Guarantor to the Trustee to take any action under any provision of
this Indenture, the Company or the Guarantor shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act or
this Indenture.  Each such certificate or
opinion shall be given in the form of an Officer’s Certificate, if to be given
by an officer of the Company or a Guarantor, or an 


 


30

















 


Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


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


 


(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 each 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, in the
opinion of each such individual, such condition or covenant has been complied
with.


 


SECTION 1.03.
Form of Documents Delivered to Trustee.  In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.


 


Any
certificate or opinion of an officer of the Company or a Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous.  Any such
certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or a Guarantor stating that the information
with respect to such factual matters is in the possession of the Company or
such Guarantor, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.


 


Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.


 


SECTION 1.04.
Acts of Holders; Record Dates.  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one 


 


31

















 


or more instruments of
substantially similar tenor signed by such Holders in Person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company or a Guarantor, as applicable. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.


 


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


 


The
ownership of Securities shall be proved exclusively by the Security Register
for all purposes.


 


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


 


The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of Securities, provided, however, that the Company may
not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities on such record date,
and no other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), nor shall anything in this paragraph be construed
to render


 


32

















 


ineffective
any action taken pursuant to or in accordance with any other provision of this
Indenture by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Record Expiration Date to be given to the Trustee in writing and to each Holder
of Securities in the manner set forth in Section 1.06.


 


The
Trustee may but need not set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 5.02, (iii) any request to
institute proceedings referred to in Section 5.07(ii) or (iv) any
direction referred to in Section 5.12. 
If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date.  Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action (whereupon the record date previously set shall
automatically and without any action by any Person be cancelled and of no
effect), nor shall anything in this paragraph be construed to render
ineffective any action taken pursuant to or in accordance with any other
provision of this Indenture by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the matter(s) to be
submitted for potential action by Holders and the applicable Record Expiration
Date to be given to the Company in writing and to each Holder of Securities in
the manner set forth in Section 1.06.


 


With
respect to any record date set pursuant to this Section, the party hereto that
sets such record date may designate any day as the “Record Expiration Date” and
from time to time may change the Record Expiration Date to any earlier or later
day, provided, however, that no
such change shall be effective unless notice of the proposed new Record
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities in the manner set forth in Section 1.06, on or before
the existing Record Expiration Date.  If
a Record Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto that set such record date shall be
deemed to have initially designated the 180th day after such record date as the
Record Expiration Date with respect thereto, subject to its right to change the
Record Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Record
Expiration Date shall be later than the 180th day after the applicable record
date.


 


Without
limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.


 


33

















 


SECTION 1.05.
Notices to Trustee, the Company or a
Guarantor.  Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,


 


(i) the Trustee by any Holder or by the
Company or a Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing and mailed, first-class postage prepaid,
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or


 


(ii) the Company or a Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company or such Guarantor addressed to it
at the address of the Company’s principal office specified in the first
paragraph of this instrument, or at any other address previously furnished in
writing to the Trustee by the Company.


 


SECTION 1.06.
Notice to Holders; Waiver.  Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice.  In any case where notice to Holders is given
by mail, neither the failure to mail or receive such notice, nor any defect in
any such notice, to any particular Holder shall affect the sufficiency or
validity of such notice.  Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.


 


In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.


 


SECTION 1.07.
Conflict with Trust Indenture Act.  If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
the Trust Indenture Act to be part of and govern this Indenture, such provision
of the Trust Indenture Act shall control. 
If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, such provision
shall be deemed to be so modified or excluded, as the case may be.


 


SECTION 1.08.
Effect of Headings and Table of Contents.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


34

















 


SECTION 1.09.
Successors and Assigns.  Without limiting Articles VIII and XIII
hereof, all covenants and agreements in this Indenture by each of the Company
or the Guarantors shall bind their respective successors and assigns, whether
so expressed or not.


 


SECTION 1.10.
Separability Clause.  In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


SECTION 1.11.
Benefits of Indenture.  Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.


 


SECTION 1.12.
Governing Law.  This Indenture, the Securities and the
Guarantees shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflicts of law principles
thereof.


 


SECTION 1.13.
Legal Holidays.  In any case where any Interest Payment Date,
Redemption Date, Purchase Date or Stated Maturity of any Security shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or
of the Securities) payment of interest or principal (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect (including with respect to the accrual of
interest) as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity.


 


SECTION 1.14.
Waiver of Jury Trial.   EACH OF THE COMPANY, THE GUARANTORS AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY.


 


SECTION 1.15.
Force Majeure.   In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


35

















 


ARTICLE II


 


Security
Forms


 


SECTION 2.01.
Form and Dating.  Provisions relating to the Securities are set
forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture.  The Securities
and the Trustee’s certificate of authentication shall be substantially in the
form of Exhibit A hereto, which is hereby incorporated in and expressly
made a part of this Indenture.  The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company or any Guarantor is subject, if
any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Company).  Each
Security shall be dated the date of its authentication.


 


ARTICLE III


 


The
Securities


 


SECTION 3.01.
Title and Terms.  The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture on the Issue Date
is limited to $750,000,000 principal amount. 
Additional Securities may be issued, authenticated and delivered
pursuant to Section 3.13, and Securities may be authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.08 or in
connection with an Offer pursuant to Sections 10.13 or 10.14.


 


The
Securities shall be known and designated as the “8.375% Senior Subordinated
Notes Due 2020” of the Company.  Their
Stated Maturity for payment of principal shall be September 15, 2020.  Interest on the Securities shall accrue at
the rate of 8.375% per annum and shall be payable semiannually in arrears on
each March 15 and September 15, commencing March 15, 2011 to the
Holders of record of Securities at the close of business on March 1 and September 1,
respectively, immediately preceding such Interest Payment Date.  Subject to Section 3.13(3), 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 October 26, 2010.  Interest on the Securities will be computed
on the basis of a 360-day year comprised of twelve 30-day months.


 


The
principal of (and premium, if any) and interest on the Securities shall be
payable at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, or such other office maintained by the Trustee
for such purpose and at any other office or agency maintained by the Company
for such purpose; provided, however, that, at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register,
or wire transfer or other electronic means.


 


36

















 


The
Securities shall be redeemable as provided in Article XI and the
Securities.


 


The
Securities shall be subject to Defeasance and/or Covenant Defeasance as
provided in Article XII.


 


SECTION 3.02.
Denominations.  The Securities shall be issuable only in registered
form without coupons and only in denominations of $1,000 principal amount and
any integral multiple thereof.


 


SECTION 3.03.
Execution and Authentication.  The terms and provisions contained in the
Securities annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.


 


The
Securities shall be executed on behalf of the Company by its Chairman of the
Board of Directors, its Chief Executive Officer, its President or one of its
Vice Presidents, its Chief Operating Officer, or its Chief Financial Officer.  The signature of any of these officers on the
Securities may be manual or facsimile.


 


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


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, which shall specify the amount
of the Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated and, in the case of an issuance of
Additional Securities pursuant to Section 3.13 after the Issue Date, shall
certify that such issuance is in compliance with Section 10.08; and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as provided in this Indenture and not otherwise.


 


Each
Security shall be dated the date of its authentication.


 


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


 


Authentication
by counterpart shall satisfy the requirements of this Section 3.03 and the
requirements of the Securities.


 


37

















 


SECTION 3.04.
Temporary Securities.  Pending the preparation of Definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.


 


If
temporary Securities are issued, the Company will cause Definitive Securities
to be prepared without unreasonable delay. 
After the preparation of Definitive Securities, the temporary Securities
shall be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 10.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Securities of authorized denominations and of a
like tenor. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as Definitive Securities.


 


SECTION 3.05.
Registration, Registration of Transfer and
Exchange.  The Company shall
cause to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 10.02 being herein sometimes collectively referred to
as the “Security Register”) in
which, subject to such reasonable regulations as the Company may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities.  The Trustee is hereby
appointed (a) the initial “Security Registrar” for the purpose of registering
Securities and transfers of Securities as herein provided and (b) the
Securities Custodian with respect to the Global Securities.


 


The
Securities shall be issued in registered form and shall be transferable only
upon the surrender of a Security for registration of transfer and in compliance
with the Appendix.  When a Security is
presented to the Security Registrar with a request to register a transfer, the
Security Registrar shall register the transfer as requested if its requirements
therefor are met.  When Securities are
presented to the Security Registrar with a request to exchange them for an
equal principal amount of Securities of other denominations, the Security
Registrar shall make the exchange as requested if the same requirements are
met.  To permit registration of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Security Registrar’s request.


 


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


 


38

















 


No
service charge shall be made for any registration of transfer or exchange of
Securities except as provided in Section 3.06, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.08
or in accordance with any Change of Control Offer pursuant to
Section 10.13 or any Asset Sale Offer pursuant to Section 10.14, and
in any such case not involving any transfer.


 


Neither
the Company nor the Security Registrar shall be required (i) to issue,
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the day of the mailing of a notice
of redemption of Securities selected for redemption under Section 11.05
and ending at the close of business on the day of such mailing, (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) to register the transfer of any Securities other than
Securities having a principal amount of $1,000 or integral multiples thereof.


 


Prior
to the due presentation for registration to transfer of any Security, the
Company, the Guarantors, the Trustee, the Paying Agent, and the Security
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 of and interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
any Subsidiary Guarantor, the Trustee, the Paying Agent, or the Security
Registrar shall be affected by notice to the contrary.


 


Any
Holder of a Global Security shall, by acceptance of such Global Security, agree
that transfers of beneficial interest in such Global Security may be effected
only through a book-entry system maintained by (a) the Holder of such
Global Security (or its agent) or (b) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.


 


SECTION 3.06.
Mutilated, Destroyed, Lost and Stolen
Securities.  If any mutilated
Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.


 


If
there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of each of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.


 


39
















 


In
case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.


 


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


 


Every
new Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.


 


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


 


SECTION 3.07.
Payment of Interest; Rights Preserved.  Interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more predecessor
securities) is registered at the close of business on the Regular Record Date
for such interest payment.


 


Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in paragraph (1) or (2) below:


 


(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date 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 deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 15 days after the receipt by the
Trustee of the notice of


 


40

















 


the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
given to each Holder in the manner specified in Section 1.06, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).


 


(2) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2), such manner of payment shall be deemed
practicable by the Trustee.


 


Subject
to the foregoing provisions of this Section and Section 3.05, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


SECTION 3.08.
Persons Deemed Owners.  Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee shall treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of (and premium, if any) and (subject to Section 3.07) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.


 


SECTION 3.09.
Cancellation.  All Securities surrendered for payment,
redemption, registration of transfer or exchange or tendered and accepted
pursuant to any Change of Control Offer pursuant to Section 10.13 or any
Asset Sale Offer pursuant to Section 10.14 shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it.  The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee.  No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee
shall be disposed of by the Trustee in its customary manner.


 


SECTION 3.10.
Computation of Interest.  Interest on the Securities shall be computed
on the basis of a 360-day year comprised of twelve 30-day months.


 


41

















 


SECTION 3.11.
CUSIP and CINS Numbers.  The Company in issuing the Securities may use
“CUSIP” and “CINS” numbers (if then generally in use), and, if so, the Trustee
shall use the CUSIP or CINS numbers in notices of redemption or repurchase 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 or repurchase and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption or repurchase shall not be affected by any defect in or omission of
such numbers.  The Company shall promptly
notify the Trustee of any change in the CUSIP or CINS numbers.


 


SECTION 3.12.
Deposits of Monies.  Except to the extent payment of interest is
made by the Company’s check pursuant to Section 3.01, prior to 11:00 a.m.,
New York City time, on each Interest Payment Date, Redemption Date, Stated
Maturity, and Purchase Date, the Company shall deposit with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, Redemption Date, Stated Maturity and Purchase
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, Redemption Date,
Stated Maturity, and Purchase Date, as the case may be.


 


SECTION 3.13.
Issuance of Additional Securities.  The Company shall be entitled, subject to its
compliance with Section 10.08, to issue Additional Securities under this
Indenture which shall have identical terms as the Securities issued on the
Issue Date, other than with respect to the date of issuance and issue price provided, however, that no Additional
Securities shall be issued that are not fungible for U.S. federal income tax
purposes, with any other securities issued under this Indenture.  The Securities issued on the Issue Date and
any Additional Securities shall be treated as a single class for all purposes
under this Indenture.


 


With
respect to any Additional Securities, the Company shall set forth in a
resolution of its Board of Directors and an Officer’s Certificate, a copy of
each which shall be delivered to the Trustee, the following information:


 


(1) whether
such Additional Securities shall be issued as part of a new or existing series
of Securities and the title of such Additional Securities (which shall
distinguish the Additional Securities of the series from Securities of any
other series);


 


(2) the
aggregate principal amount of such Additional Securities which may be
authenticated and delivered under this Indenture, which may be in an unlimited
aggregate principal amount;


 


(3) the
issue price and issuance date of such Additional Securities, including the date
from which interest on such Additional Securities shall accrue; and


 


42

















 


(4) if
applicable, that such Additional Securities shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
respective depositaries for such Global Securities, the form of any legend or
legends which shall be borne by such Global Securities in addition to or in
lieu of those set forth in Exhibit A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.3 of the Appendix
in which any such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global Security in whole
or in part may be registered, in the name or names of Persons other than the
depositary for such Global Security or a nominee thereof.


 


ARTICLE IV


 


Satisfaction
and Discharge


 


SECTION 4.01.
Satisfaction and Discharge of Indenture.  This Indenture shall cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when


 


(1) either


 


(A) all Securities
theretofore authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced or repaid as
provided in Section 3.06 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for
cancellation; or


 


(B) all Securities not
theretofore delivered to the Trustee for cancellation (other than Securities
which have been destroyed, lost or stolen and which have been replaced or
repaid as provided in Section 3.06),


 


(i) have
become due and payable, or


 


(ii) will
become due and payable at their Stated Maturity within one year, or


 


(iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,


 


43

















 


and
the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest on the
Securities to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be, together with irrevocable instructions from the Company directing
the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;


 


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


 


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


 


Notwithstanding
the satisfaction and discharge of this Indenture pursuant to this
Article IV, the obligations of the Company to the Trustee under
Section 6.07, the obligations of the Company to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive such satisfaction and discharge.


 


SECTION 4.02.
Application of Trust Money.  Subject to the provisions of the last
paragraph of Section 10.03, all money deposited with the Trustee pursuant
to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee. 
Money so held in trust is not subject to Article XIV.


 


ARTICLE V


 


Remedies


 


SECTION 5.01.
Events of Default.  “Event of
Default,” wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):


 


44

















 


(1) default
in the payment of the principal of or premium, if any, when due and payable, on
any of the Securities (at Stated Maturity, upon optional or mandatory
redemption, required purchase or otherwise), whether or not prohibited by Article XIV;
or


 


(2) default
in the payment of an installment of interest on any of the Securities, when due
and payable, for 30 days, whether or not prohibited by Article XIV;
or


 


(3) default
in the performance, or breach, of any covenant or agreement of the Company or
the Guarantors under this Indenture (other than a default in the performance or
breach of a covenant or agreement which is specifically dealt with in
clauses (1), (2) or (4)) and such default or breach shall continue
for a period of 30 days after written notice has been given, by certified
mail, (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities; or


 


(4) (a) there
shall be a default in the performance or breach of the provisions of
Section 8.01 with respect to the Company; (b) the Company shall have
failed to make or consummate an Asset Sale Offer in accordance with the
provisions of Section 10.14; or (c) the Company shall have failed to
make or consummate a Change of Control Offer in accordance with the provisions
of Section 10.13, whether or not prohibited by Article XIV; or


 


(5) default
or defaults under one or more agreements, instruments, mortgages, bonds,
debentures or other evidences of Indebtedness under which the Company or any
Restricted Subsidiary of the Company then has outstanding Indebtedness (i) in
excess of $25,000,000, if any 7% Notes or 73⁄4% Notes are outstanding, or (ii) in
excess of $50,000,000, when no 7% Notes or 73⁄4% Notes remain outstanding, in
each case, individually or in the aggregate, and either (a) such
Indebtedness is already due and payable in full or (b) such default or
defaults have resulted in the acceleration of the maturity of such
Indebtedness; or


 


(6) one
or more judgments, orders or decrees of any court or regulatory or administrative
agency of competent jurisdiction for the payment of money (i) in excess of
$25,000,000, if any 7% Notes or 73⁄4% Notes are outstanding, or (ii) in
excess of $50,000,000, when no 7% Notes or 73⁄4% Notes remain outstanding, in
each case, either individually or in the aggregate, shall be entered against
the Company or any Restricted Subsidiary of the Company or any of their
respective properties and shall not be discharged and there shall have been a
period of 60 days after the date on which any period for appeal has
expired and during which a stay of enforcement of such judgment, order or
decree, shall not be in effect; or


 


(7) the
entry of a decree or order by a court having jurisdiction in the premises
(A) for relief in respect of the Company or any Significant Subsidiary in
an involuntary case or proceeding under the Bankruptcy Code or any other


 


45

















 


federal, state or foreign
bankruptcy, insolvency, reorganization or similar law or (B) adjudging the
Company or any Significant Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any Significant Subsidiary under the Bankruptcy Code or any other
similar federal, state or foreign law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or any Significant Subsidiary or of any substantial part of any of
their properties, or ordering the winding up or liquidation of any of their
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or


 


(8) the
institution by the Company or any Significant Subsidiary of a voluntary case or
proceeding under the Bankruptcy Code or any other similar federal, state or
foreign law or any other case or proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any Significant Subsidiary to the
entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary in any involuntary case or proceeding under the
Bankruptcy Code or any other similar 
federal, state or foreign law or to the institution of bankruptcy or
insolvency proceedings against the Company or any Significant Subsidiary, or
the filing by the Company or any Significant Subsidiary of a petition or answer
or consent seeking reorganization or relief under the Bankruptcy Code or any
other similar federal, state or foreign law, or the consent by it to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of any of the Company or any Significant Subsidiary or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action; or


 


(9) any
of the Guarantees ceases to be in full force and effect or any of the
Guarantees is declared to be null and void and unenforceable or any of the
Guarantees is found to be invalid or any of the Guarantors denies its liability
under its Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of this Indenture).


 


SECTION 5.02.
Acceleration of Maturity; Rescission and
Annulment.  If an Event of
Default (other than those covered by clause (7) or (8) of
Section 5.01 with respect to the Company) shall occur and be continuing,
the Trustee, by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then Outstanding, by notice to the
Trustee and the Company, may declare the principal of, premium, if any, and
accrued and unpaid interest, if any, on all of the Outstanding Securities due
and payable immediately.  If an Event of
Default specified in clause (7) or (8) of Section 5.01 with
respect to the Company occurs and is continuing, then the principal of,
premium, if any, and accrued and unpaid interest, if any, on all the
Outstanding Securities shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of Securities.


 


46

















 


After
a declaration of acceleration under this Indenture, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the Holders
of a majority in aggregate principal amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind such declaration if


 


(1) the
Company or any Guarantor has paid or deposited with the Trustee a sum
sufficient to pay:


 


(A) all sums paid or
advanced by the Trustee under this Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;


 


(B) all overdue
interest on all Securities;


 


(C) the principal of
and premium, if any, on any Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne by the
Securities; and


 


(D) to the extent that
payment of such interest is lawful, interest upon overdue interest and overdue
principal at the rate set forth in the Securities which has become due
otherwise than by such declaration of acceleration;


 


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


 


(3) all
Events of Default, other than the non-payment of 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.


 


No
such rescission shall affect any subsequent default or impair any right
consequent thereto.


 


SECTION 5.03.
Collection of Indebtedness and Suits for
Enforcement by Trustee.  The
Company and each Guarantor covenants that if


 


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


 


(ii) default
is made in the payment of the principal of (or premium, if any, on) any
Security on the due date for payment thereof, including, with respect to any
Security required to have been purchased pursuant to a Change of Control Offer
or an Asset Sale Offer made by the Company, at the Purchase Date thereof, the
Company or such Guarantor will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on


 


47

















 


any overdue principal (and
premium, if any) and on any overdue interest, at the rate provided by the
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.


 


In
addition to the rights and powers set forth in Section 317(a) of the
Trust Indenture Act, the Trustee shall be entitled to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities allowed in any judicial proceeding
relative to the Company, any Guarantor or any other obligor upon the
Securities, its creditors, or its property, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for
compensation and expenses, including counsel fees incurred by it up to the date
of such distribution.


 


If
an Event of Default occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem necessary to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.


 


SECTION 5.04.
Trustee May File Proofs of Claim.  In case of any judicial proceeding relative
to the Company, a Guarantor (or any other obligor upon the Securities), any of
their property or any of their creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.


 


No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of


 


48

















 


the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors’ or other similar committee.


 


SECTION 5.05.
Trustee May Enforce Claims Without
Possession of Securities.  All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
distributions and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.


 


SECTION 5.06.
Application of Money Collected.  Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:


 


FIRST:  To the payment of all
amounts due the Trustee under Section 6.07;


 


SECOND:  To holders of Senior
Indebtedness of the Company and, if such money or property has been collected
from the Guarantors, to holders of Senior Indebtedness of the Guarantors, in
each case to the extent required by Articles XIII and XIV;


 


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


 


FOURTH:  To the payment of any
and all other amounts due under this Indenture, the Securities or the
Guarantees; and


 


FIFTH:  To the Company (or such
other Person as a court of competent jurisdiction may direct).


 


SECTION 5.07.
Limitation on Suits.  Subject to Section 5.08, no Holder of
any Security shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless


 


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


 


49
















 


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


 


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


 


(iv)
the Trustee for 45 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and


 


(v)
no direction inconsistent with such written request has been given to the
Trustee during such 45-day period by the Holders of a majority in principal
amount of the Outstanding Securities; it being understood and intended that no
one or more Holders shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.


 


SECTION
5.08. Unconditional Right of Holders to
Receive Principal, Premium and Interest.  Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.07) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date or in the case of a Change of Control Offer or an Asset
Sale Offer made by the Company and required to be accepted as to such Security,
on the relevant Purchase Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.


 


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


 


SECTION
5.10. Rights and Remedies Cumulative.  Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.06, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or


 


50

















 


now or hereafter existing
at law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


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


 


SECTION
5.12. Control by Holders.  The Holders of a majority in principal amount
of the Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee, provided that;


 


(i)
such direction shall not be in conflict with any rule of law or with this
Indenture, and


 


(ii)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


SECTION
5.13. Waiver of Past Defaults.  The Holders of not less than a majority in
principal amount of the Outstanding Securities may on behalf of the Holders of
all the Securities waive any past default hereunder and its consequences,
except a default


 


(i)
in the payment of the principal of (or premium, if any) or interest on any
Security (including any Security which is required to have been purchased
pursuant to a Change of Control Offer or an Asset Sale Offer which has been
made by the Company), or


 


(ii)
in respect of a covenant or provision hereof which under Article IX cannot
be modified or amended without the consent of the Holder of each Outstanding
Security affected.


 


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


 


SECTION
5.14. 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, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit (including reasonable counsel fees and expenses), and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that
neither this Section nor the 


 


51

















 


Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Company or a Guarantor, in any suit
instituted by the Trustee, in any suit instituted by any Holder or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or in any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the Stated Maturity expressed in such Security (or,
in the case of redemption, on or after the Redemption Date or, in the case of a
Change of Control Offer or an Asset Sale Offer, made by the Company and
required to be accepted as to such Security, on the applicable Purchase Date,
as the case may be).


 


SECTION
5.15. Waiver of Stay or Extension Laws.  The Company and each Guarantor covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company and each Guarantor (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 hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.


 


ARTICLE
VI


 


The
Trustee


 


SECTION
6.01. Certain Duties and Responsibilities.  (a) 
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; but in the case of any such certificates
or opinions which by the provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).


 


(b)  In case an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use


 


52

















 


the same degree of care and skill in their exercise,
as a prudent Person would exercise or use under the circumstances in the
conduct of such Person’s own affairs.


 


(c)  No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent
misconduct, except that no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers under this Indenture, unless the Trustee has
received security and indemnity satisfactory to it against any loss, liability
or expense. The Trustee shall not be liable for any error of judgment unless it
is proved that the Trustee was negligent in the performance of its duties
hereunder.


 


(d)  Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.01.


 


SECTION
6.02. Notice of Defaults.  If a Default or an Event of Default occurs
and is known to the Trustee, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Security Register, notice of such
Default or Event of Default hereunder known to the Trustee within 90 days after
obtaining such knowledge, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default or an Event of Default in the payment of
the principal of, premium, if any, or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.


 


SECTION
6.03. Certain Rights of Trustee.  Subject to the provisions of
Section 6.01:


 


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


 


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


 


(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein


 


53

















 


specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s
Certificate;


 


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


 


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


 


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


 


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


 


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


 


(i) in the event that the Trustee is also acting as
Authenticating Agent, Paying Agent, Security Registrar or Securities Custodian
hereunder, the rights and protections afforded to the Trustee pursuant to this
Article VI, including its right to be indemnified, shall also be afforded
to such Authenticating Agent, Paying Agent, Security Registrar and Securities
Custodian;


 


(j) the Trustee shall not be deemed to have notice
of any Default or Event of Default unless a Responsible Officer of the Trustee
has actual


 


54

















 


knowledge
thereof or unless written notice of any event which is in fact such a default
is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture;


 


(k) in no event shall the Trustee be responsible or
liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action; and


 


(l) the Trustee may request that the Company
deliver a certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture.


 


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


 


SECTION
6.05. May Hold Securities.  The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar, any Securities Custodian or any other
agent of the Company or any Guarantor, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 6.08 and
6.13, may otherwise deal with the Company or a Guarantor with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar, Securities Custodian or such other agent.


 


SECTION
6.06. Money Held in Trust.  Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by
law.  The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.


 


SECTION
6.07. Compensation and Reimbursement.  The Company agrees (1) to pay to the Trustee
from time to time such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); (2) except as otherwise
expressly provided herein, to promptly reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may have been
caused by its negligence or willful misconduct; and (3) to indemnify the
Trustee, its directors, officers, agents and employees for, and to hold them
harmless against, any and all loss, damage, claim, liability or expense
incurred without negligence or bad faith on its part, including taxes (other
than taxes based upon,


 


55

















 


measured by or determined
by the revenue or income of the Trustee), arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim (whether asserted by the
Company, a Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.


 


The
Trustee shall have a lien prior to the Securities as to all property and funds
held by it hereunder for any amount owing to it pursuant to this
Section 6.07, except with respect to funds held in trust for the benefit
of the Holders of particular Securities.


 


When
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(7) or Section 5.01(8), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or other similar
law.


 


Notwithstanding
any provisions of this Indenture, the provisions of this Section shall survive
the resignation or removal of the Trustee and any satisfaction and discharge of
this Indenture.


 


SECTION
6.08. Conflicting Interests.  If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.


 


SECTION
6.09. Corporate Trustee Required;
Eligibility.  There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has, or is a
wholly-owned subsidiary of a bank holding company that has, a combined capital
and surplus of at least $50,000,000 and a Corporate Trust Office in the Borough
of Manhattan, The City of New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of a
federal or state supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.


 


SECTION
6.10. Resignation and Removal; Appointment
of Successor.  (a)  No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.


 


(b)  The Trustee may resign at any time by giving
written notice thereof to the Company. 
If an instrument of acceptance by a successor Trustee in accordance with


 


56

















 


the applicable requirements of Section 6.11
shall not have been delivered to the Company and the resigning Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.


 


(c)  The Trustee may be removed at any time by Act
of the Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company. 
If an instrument of acceptance by a successor Trustee in accordance with
the applicable requirements of Section 6.11 shall not have been delivered
to the Company and the Trustee being removed within 30 days after the
giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.


 


(d)  If at any time:


 


(i)
the Trustee shall fail to comply with Section 6.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or


 


(ii)
the Trustee shall cease to be eligible under Section 6.09 and shall fail
to resign after written request therefor by the Company, any Guarantor or by
any such Holder, or


 


(iii)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company or any Guarantor, in
each case by a Board Resolution, may remove the Trustee, or (B) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.


 


(e)  If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee.  If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee and
supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in accordance
with the applicable requirements of Section 6.11, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf of


 


57

















 


himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.


 


(f)  The Company shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee to all Holders in the manner provided in Section 1.06.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


(g)  The resignation or removal of the Trustee
pursuant to this Section 6.10 shall not affect the obligation of the
Company to indemnify the Trustee pursuant to Section 6.07(3) in connection
with the exercise or performance by the Trustee prior to its resignation or
removal of any of its powers or duties hereunder.


 


(h)  No Trustee under this Indenture shall be
liable for any action or omission of any successor Trustee.


 


SECTION
6.11. Acceptance of Appointment by Successor.  Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.


 


No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.


 


SECTION
6.12. Merger, Conversion, Consolidation or
Succession to Business.  Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, however, such corporation shall
be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.  In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.


 


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SECTION 6.13.
Preferential Collection of Claims Against
the Company or a Guarantor. 
If and when the Trustee shall be or become a creditor of the Company or
a Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company or such Guarantor (or any such other obligor).


 


SECTION 6.14.
Appointment of Authenticating Agent.  The Trustee may appoint an Authenticating
Agent or Agents which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption or partial purchase or pursuant
to Section 3.06, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. 
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to all or substantially all of the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 1.06, to all Holders as their


 


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names
and addresses appear in the Security Register. 
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.


 


The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.


 


If
an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in the following form:


 


This
is one of the Securities described in the within-mentioned Indenture.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The
  Bank of New York Mellon, as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  As Authentication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Authorized Signatory

  



 


ARTICLE VII


 


Holders’
Lists and Reports by Trustee and Company


 


SECTION 7.01.
Company to Furnish Trustee Names and
Addresses of Holders.  The
Company will furnish or cause to be furnished to the Trustee a list of the
names and addresses of the Holders in such form as the Trustee may reasonably
request in writing, within 30 days after the receipt by the Company of any
such request, as of a date not more than 15 days prior to the time such
list is furnished; excluding from any such list names and addresses received by
the Trustee in its capacity as Security Registrar.


 


SECTION 7.02.
Preservation of Information; Communications
to Holders.  (a)  The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the


 


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Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar, if so acting.


 


(b)  The rights of
Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and duties
of the Trustee, shall be as provided by the Trust Indenture Act.


 


(c)  Every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, any Guarantor nor the Trustee nor any agent
of any of them shall be held accountable by reason of any disclosure of
information as to the names and addresses of Holders made pursuant to the Trust
Indenture Act.


 


SECTION 7.03.
Reports by Trustee.  (a)  Within 60 days after June 15
of each year commencing June 15, 2011, the Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture to the extent required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.


 


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


 


SECTION 7.04.
Reports by Company.  The Company shall file with the Trustee and
the Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to the Trust
Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed
with the Commission.


 


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


 


ARTICLE VIII


 


Consolidation,
Merger, Conveyance, Transfer or Lease


 


SECTION 8.01.
Company May Consolidate, Etc. Only
on Certain Terms.  (A) The
Company will not, in any transaction or series of transactions, merge or
consolidate with or into, or sell, assign, convey, transfer, lease or otherwise
dispose of all


 


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or substantially all of
its properties and assets as an entirety to, any Person or Persons, and
(B) the Company will not permit any Restricted Subsidiary to enter into
any such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless, in each
of cases (A) and (B), at the time and after giving effect thereto:


 


(1) either:


 


(x) if the transaction or transactions is a
merger or consolidation, the Company, or such Restricted Subsidiary, as the
case may be, shall be the surviving Person of such merger or consolidation, or


 


(y) the Person formed by such consolidation or
into which the Company, or such Restricted Subsidiary, as the case may be, is
merged or to which the properties and assets of the Company or such Restricted
Subsidiary, as the case may be, substantially as an entirety, are transferred,
(any such surviving Person or transferee Person being the “Surviving Entity”) shall be a corporation organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia
and shall expressly assume by a supplemental indenture executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the obligations of the
Company or such Restricted Subsidiary, as the case may be, under this Indenture
and the Securities, and this Indenture, the Securities and the Guarantees shall
remain in full force and effect;


 


(2) immediately
after giving effect to such transaction or series of transactions on a pro
forma basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), no Default or Event of Default shall have occurred
and be continuing; and


 


(3) except
in the case of any merger of the Company with any wholly-owned Subsidiary of
the Company or any merger of a Wholly Owned Restricted Subsidiary of the
Company with and into a Guarantor or merger of Guarantors (and in each case,
with no other Persons), (i) the Company or the Surviving Entity, as the
case may be, after giving effect to such transaction or series of transactions
on a pro forma basis (including, without limitation, any Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), could incur $1.00 of additional
Indebtedness pursuant to paragraph (a) of Section 10.08 (assuming a
market rate of interest with respect to such additional Indebtedness) or
(ii) the Consolidated Fixed Charge Coverage Ratio of the Company (or, if
applicable, the successor company with respect thereto) would equal or exceed
the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior
to giving effect to such transaction.


 


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In
connection with any consolidation, merger, transfer, lease, assignment or other
disposition contemplated by the foregoing provisions of this Section 8.01,
the Company shall deliver, or cause to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
transfer, lease, assignment, or other disposition and the supplemental
indenture in respect thereof (required under clause (1)(y) of this
Section 8.01) comply with the requirements of this Indenture.  Each such Officer’s Certificate shall set
forth the manner of determination of the ability to incur Indebtedness in
accordance with clause (3) of this Section 8.01.


 


SECTION 8.02.
Successor Substituted.  Except as otherwise provided by
Section 13.05, upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 8.01, the
successor Person formed by such consolidation or into which the Company or a
Restricted Subsidiary, as the case may be, is merged or the successor Person to
which such sale, assignment, conveyance, transfer, lease or disposition is made
shall succeed to, and be substituted for, and may exercise every right and
power of the Company under the Securities and this Indenture, as applicable,
with the same effect as if such successor had been named as the Company in the
Securities and this Indenture, as the case may be, and, except in the case of a
lease, the Company, or such Restricted Subsidiary, as the case may be, shall be
released and discharged from its obligations thereunder.


 


For
all purposes of this Indenture and the Securities (including the provisions of
this Article VIII and Sections 10.08, 10.09 and 10.12), Subsidiaries
of any Surviving Entity shall, upon consummation of such transaction or series
of related transactions, become Restricted Subsidiaries unless and until
designated Unrestricted Subsidiaries pursuant to and in accordance with
Section 10.17 and all Indebtedness, and all Liens on property or assets,
of the Company, and the Restricted Subsidiaries, as the case may be, in
existence immediately prior to such transaction or series of related
transactions will be deemed to have been incurred upon consummation of such
transaction or series of related transactions.


 


ARTICLE IX


 


Amendments; Waivers; Supplemental Indentures


 


SECTION 9.01.
Amendments, Waivers and Supplemental
Indentures Without Consent of Holders.  Without the consent of any Holders, when
authorized by a Board Resolution, the Company and each Guarantor, and the
Trustee, at any time and from time to time, may together amend, waive or
supplement this Indenture or the Securities, for any of the following purposes:


 


(i) to
evidence the succession of another Person to the Company or a Guarantor and the
assumption by any such successor of the covenants of the Company or such
Guarantor herein and in the Securities or such Guarantor’s


 


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Guarantee and to evidence
the assumption of obligations under this Indenture and a Guarantee pursuant to
Section 10.16;


 


(ii) to
add to the covenants of the Company or a Guarantor for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company or
a Guarantor;


 


(iii) to
secure the Securities;


 


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


 


(v) to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this Indenture; or


 


(vi) to
make any change that does not adversely affect the rights of the Holders;


 


provided, however, that (a) such
amendment, waiver or supplement does not adversely affect the rights of any
Holder of Securities and (b) the Company shall have delivered to the
Trustee an Opinion of Counsel and Officer’s Certificate stating that such
action pursuant to clauses (i), (ii), (iii), (iv) or (v) above is
permitted by this Indenture.  The Trustee
shall not be obligated to enter into any such amendment, waiver or supplemental
indenture that adversely affects its own rights, duties or immunities under
this Indenture or otherwise.


 


SECTION 9.02.
Modifications, Amendments and Supplemental
Indentures with Consent of Holders. 
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company and the Guarantors, when authorized by
Board Resolutions, and the Trustee may together modify, amend or supplement
this Indenture or the Securities for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture; provided, however,
that no such modification, amendment or supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,


 


(i) reduce
the principal amount of, extend the Stated Maturity of or alter the redemption
provisions of, the Securities,


 


(ii) change
the currency in which any Securities or any premium or the interest thereon is
payable,


 


(iii) reduce
the percentage in principal amount of Outstanding Securities that must consent
to an amendment, supplement or waiver or consent to take any action under this
Indenture or the Securities or any Guarantee,


 


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(iv) impair
the right to institute suit for the enforcement of any payment on or with
respect to the Securities or any Guarantee,


 


(v) waive
a default in payment with respect to the Securities or any Guarantee,


 


(vi) amend,
change or modify in any material respect the obligation of the Company to make
and consummate a Change of Control Offer in respect of a Change of Control that
has occurred or make and consummate an Asset Sale Offer with respect to any
Asset Sale that has been consummated,


 


(vii) reduce
or change the rate or time for payment of interest on the Securities, or


 


(viii) modify
or change any provision of this Indenture affecting the ranking of the
Securities or any Guarantee in a manner adverse to the Holders of the
Securities.


 


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


 


The
Trustee shall join with the Company and each Guarantor in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such amendment or supplemental indenture.


 


SECTION 9.03.
Execution of Supplemental Indentures.  In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be given, and (subject to Section 6.01) shall be fully protected in
relying upon, an Officer’s Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.  The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise; provided that the
Trustee shall enter into and execute all other supplemental indentures which
satisfy all applicable conditions under this Article IX.


 


SECTION 9.04.
Effect of Supplemental Indentures.  Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.


 


SECTION 9.05.
Conformity with Trust Indenture Act.  Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.


 


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SECTION 9.06.
Reference in Securities to Supplemental
Indentures.  Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture, provided
that any failure by the Trustee to make such notation shall not affect the
validity of the matter provided for in such supplemental indenture or any
Security or Guarantee hereunder.  If the
Company shall so determine, new Securities or Guarantees so modified as to conform,
in the opinion of the Trustee, the Guarantors and the Company, to any such
supplemental indenture may be prepared and executed by the Company or Guarantor
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities.


 


SECTION 9.07.
Waiver of Certain Covenants.  The Company may omit in any particular
instance to comply with any covenant or condition set forth in
Section 8.01, Sections 10.04 to 10.17, inclusive, and Section 10.20,
and pursuant to Section 9.01(ii), if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect; provided, however,
with respect to an Offer as to which an Offer to Purchase has been mailed, no
such waiver may be made or shall be effective against any Holder tendering
Securities pursuant to such Offer, and the Company may not omit to comply with
the terms of such Offer as to such Holder.


 


SECTION 9.08.
No Liability for Certain Persons.  No director, officer, employee, or
stockholder of Holdings or the Company, nor any director, officer or employee
of any Guarantor, as such, shall have any liability for any obligations of the
Company or any Guarantor under the Securities, the Guarantees or this Indenture
based on or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The foregoing
waiver and release is an integral part of the consideration for the issuance of
the Securities and the Guarantees.


 


ARTICLE X


 


Covenants


 


SECTION 10.01.
Payment of Principal, Premium and Interest.  The Company shall duly and punctually pay the
principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture.  The Company will deposit or cause to be
deposited with the Trustee or its nominee, no later than the opening of
business on the date of the Stated Maturity of any Security or no later than
the opening of business on the due date for any installment of


 


66

















 


interest, all payments so
due, which payments shall be in immediately available funds on the date of such
Stated Maturity or due date, as the case may be.


 


SECTION 10.02.
Maintenance of Office or Agency.  The Company shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company or any Guarantor in respect of the Securities, the Guarantees and
this Indenture may be served.  The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at a Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. 
In the event any such notice or demands are so made or served on the
Trustee, the Trustee shall promptly forward copies thereof to the Company.


 


The
Company may also from time to time designate one or more other offices or
agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. 
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.


 


The
Company hereby initially designates the Trustee as Paying Agent and Security
Registrar, and the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, located at 101 Barclay Street, Floor 8 West,
New York, New York 10286, Attention: Corporate Trust Administration, as one
such office or agency of the Company for each of the aforesaid purposes.


 


SECTION 10.03.
Money for Security Payments to be Held in
Trust.   If the Company shall
at any time act as its own Paying Agent, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents, the Company will, prior to
11:00 a.m., New York City time, on each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is


 


67

















 


the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.


 


The
Company shall cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will: (i) comply with the provisions of the Trust Indenture Act
applicable to it as Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.


 


The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by such Paying Agent; and, upon such payment by
any Paying Agent (other than the Company) to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.


 


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


 


SECTION 10.04.
Existence; Activities.  Subject to Article VIII, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and material
franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors of
the Company in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.


 


SECTION 10.05.
Maintenance of Properties.  The Company shall cause all material
properties used in the conduct of its business or the business of any
Restricted Subsidiary to be maintained and kept in good condition, repair and
working order


 


68

















 


(regular wear and tear
excepted), all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided,
however, that nothing in this Section shall
prevent the Company from disposing of any asset (subject to compliance with
Section 10.14) or from discontinuing the operation or maintenance of any
of such material properties if such discontinuance is, as determined by the
Company in good faith, desirable in the conduct of its business or the business
of any Restricted Subsidiary and not disadvantageous in any material respect to
the Holders.


 


SECTION 10.06.
Payment of Taxes and Other Claims.  The Company shall pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any of its Restricted Subsidiaries or upon the income, profits or property
of the Company or any of its Restricted Subsidiaries, and (2) all lawful
material claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon property of the Company or any of its Restricted
Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.


 


SECTION 10.07.
Maintenance of Insurance.  The Company shall, and shall cause its
Restricted Subsidiaries to, keep at all times all of their material properties
which are of an insurable nature insured against loss or damage with insurers
believed by the Company to be responsible to the extent that property of
similar character is usually so insured by corporations similarly situated and
owning like properties in accordance with good business practice.  The Company shall, and shall cause its
Restricted Subsidiaries to, use the proceeds from any such insurance policy to
repair, replace or otherwise restore all material properties to which such
proceeds relate, provided, however, that the Company shall not be
required to repair, replace or otherwise restore any such material property if
the Company in good faith determines that such inaction is desirable in the
conduct of the business of the Company or any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.


 


SECTION 10.08.
Limitation on Indebtedness.  (a)   The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create,
incur, issue, assume, guarantee or in any manner become directly or indirectly
liable, contingently or otherwise (in each case, to “incur”), for the payment
of any Indebtedness (including any Acquired Indebtedness); provided, however,
that (i) the Company and any Subsidiary Guarantor will be permitted to
incur Indebtedness (including Acquired Indebtedness), and (ii) a
Restricted Subsidiary will be permitted to incur Acquired Indebtedness, if in
each case the Consolidated Fixed Charge Coverage Ratio of the Company and its
Restricted Subsidiaries is at least 2:1.


 


(b)  Notwithstanding
Section 10.08(a), the Company and the Restricted Subsidiaries shall be
entitled to incur any or all of the following Indebtedness:


 


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(i) Indebtedness
of the Company and the Guarantors related to the Securities and the guarantees
of those Securities (other than any Additional Securities or guarantees
thereof);


 


(ii) Indebtedness
incurred by the Company and its Restricted Subsidiaries pursuant to a Credit
Facility; provided, however,
that, immediately after giving effect to any such incurrence, the aggregate
principal amount of all Indebtedness incurred under this clause (ii) and
then outstanding does not exceed the greater of (A) $1,850,000,000 and
(B) 85% of Consolidated Net Tangible Assets, less, in either case, any
amounts permanently repaid or commitments permanently reduced in accordance
with Section 10.14;


 


(iii) (A) Indebtedness
of the Company or any Restricted Subsidiary outstanding on the Issue Date,
including the 17/8% Convertible Notes, the 7% Notes, the 73⁄4% Notes, the 9.25% Notes and the
10.875% Notes;


 


(iv) Indebtedness
of the Company or any Restricted Subsidiary incurred in respect of
(A) performance bonds, completion guarantees, surety bonds, bankers’
acceptances, letters of credit or other similar bonds, instruments or
obligations in the ordinary course of business, including Indebtedness
evidenced by letters of credit issued in the ordinary course of business to
support the insurance or self-insurance obligations of the Company or any of
its Restricted Subsidiaries (including to secure workers’ compensation and
other similar insurance coverages), but excluding letters of credit issued in
respect of or to secure money borrowed, (B) obligations under Currency
Agreements and Fuel Hedging Agreements entered into for bona fide hedging
purposes of the Company in the ordinary course of business, (C) financing
of insurance premiums in the ordinary course of business or (D) netting, overdraft
protection and other arrangements arising under standard business terms of any
bank at which the Company or any Restricted Subsidiary maintains an overdraft,
cash pooling or other similar facility or arrangement;


 


(v) Indebtedness
consisting of accommodation guarantees for the benefit of trade creditors of
the Company or any Restricted Subsidiary;


 


(vi) (A) Interest
Rate Protection Obligations of the Company covering Indebtedness of the
Company; and (B) Interest Rate Protection Obligations of any Restricted
Subsidiary covering Permitted Indebtedness of such Restricted Subsidiary; provided, however, that,
in the case of either clause (A) or (B):


 


(1) any
Indebtedness to which any such Interest Rate Protection Obligations correspond
is otherwise permitted to be incurred under this covenant; and


 


(2) the
notional principal amount of any such Interest Rate Protection Obligations
shall not exceed the principal amount of the Indebtedness to which such
Interest Rate Protection Obligations relate;


 


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(vii) Indebtedness
of a Restricted Subsidiary owed to and held by the Company or another
Restricted Subsidiary, except that:


 


(A) any transfer of
such Indebtedness by the Company or a Restricted Subsidiary (other than to the
Company or another Restricted Subsidiary); and


 


(B) the sale, transfer
or other disposition by the Company or any Restricted Subsidiary of the Company
of Capital Stock of a Restricted Subsidiary (other than to the Company or a
Restricted Subsidiary) which is owed Indebtedness of another Restricted
Subsidiary


 


shall, in each case, be an
incurrence of Indebtedness by such Restricted Subsidiary subject to the other
provisions of this Indenture;


 


(viii) Indebtedness
of the Company owed to and held by a Restricted Subsidiary which is unsecured
and subordinated in right of payment to the payment and performance of the
obligations of the Company under this Indenture and the Securities, except
that:


 


(1) any
transfer of such Indebtedness by the Company or a Restricted Subsidiary (other
than to another Restricted Subsidiary); and


 


(2) the
sale, transfer or other disposition by the Company or any Restricted Subsidiary
of the Company (other than to the Company or a Restricted Subsidiary) of
Capital Stock of a Restricted Subsidiary which is owed Indebtedness of the
Company


 


shall, in each case, be an
incurrence of Indebtedness by the Company, subject to the other provisions of
this Indenture;


 


(ix) (A) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided, however, that such Indebtedness is extinguished within five
Business Days of incurrence; and


 


(B) customer deposits
and advance payments received in the ordinary course of business from customers
for goods or services purchased or rented in the ordinary course of business;


 


(x) Indebtedness
of the Company or any Restricted Subsidiary under equipment purchase or lines
of credit or for Capitalized Lease Obligations or Purchase Money Obligations
that, when added to all other Indebtedness incurred pursuant to this clause (x) and
then outstanding, shall not exceed the greater of $200,000,000 and 7.5% of
Consolidated Net Tangible Assets in aggregate principal amount outstanding at
any time;


 


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(xi) (A) Indebtedness
of the Company the proceeds of which are used solely to refinance (whether by
amendment, renewal, extension or refunding) Indebtedness of the Company or any
of its Restricted Subsidiaries incurred pursuant to Section 10.08(a) or
pursuant to Section 10.08(b)(i), (iii) or (xi); and


 


(B) Indebtedness of any
Restricted Subsidiary the proceeds of which are used solely to refinance
(whether by amendment, renewal, extension or refunding) Indebtedness of such
Restricted Subsidiary incurred pursuant to Section 10.08(a) or
pursuant to Section 10.08(b)(i), (iii) or (xi); provided, however, that:


 


(1) the principal
amount of Indebtedness incurred pursuant to this clause (xi) (or, if
such Indebtedness provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the maturity
thereof, the original issue price of such Indebtedness) shall not exceed the
sum of the principal amount of Indebtedness so refinanced, plus the amount of
any accrued and unpaid interest and any premium required to be paid in
connection with such refinancing pursuant to the terms of such Indebtedness or
the amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing by means of a tender offer or privately negotiated
purchase, plus the amount of expenses in connection therewith; and


 


(2) in the case of
Indebtedness incurred by the Company pursuant to this clause (xi) to
refinance Subordinated Indebtedness, such Indebtedness:


 


(x) has no scheduled principal payment prior to
the 91st day after the Maturity Date;


 


(y) has an Average Life to Stated Maturity
greater than the remaining Average Life to Stated Maturity of the Securities;
and


 


(z) is subordinated to the Securities in the
same manner and to the same extent that the Subordinated Indebtedness being
refinanced is subordinated to the Securities;


 


(xii) Indebtedness
of a Foreign Subsidiary incurred to finance the working capital of such Foreign
Subsidiary;


 


(xiii) Indebtedness
arising from agreements of the Company or any Restricted Subsidiary providing
for guarantees, indemnification, obligations in respect of earnouts or other
purchase price adjustments or holdback of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
acquisition or disposition of any business, assets, Person or a Subsidiary,
other


 


72

















 


than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such acquisition;


 


(xiv) Indebtedness
arising from the making of Standard Securitization Undertakings by the Company
or any Restricted Subsidiary;


 


(xv) guarantees
by the Company or a Restricted Subsidiary of Indebtedness that was permitted to
be incurred by the Company or any Restricted Subsidiary under this Indenture;
and


 


(xvi) Indebtedness
of the Company or any Restricted Subsidiary, in addition to that described in
clauses (i) through (xv) of this Section 10.08(b), in an
aggregate principal amount outstanding at any time that, when added to all
other Indebtedness incurred pursuant to this clause (xvi) and then
outstanding, shall not exceed the greater of $200,000,000 and 7.5% of
Consolidated Net Tangible Assets.


 


(c)  For the purposes
of determining compliance with, and the outstanding principal amount of
Indebtedness incurred pursuant to and in compliance with, this
Section 10.08, (x) in the event that Indebtedness meets the criteria
of more than one of the types of Indebtedness described in Section 10.08(a) and
(b), the Company, in its sole discretion, shall classify, and may from time to
time reclassify, such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the clauses of
Section 10.08(b) or Section 10.08(a); provided
that Indebtedness incurred under the Credit Agreement prior to or on the Issue
Date shall be treated as incurred pursuant to Section 10.08(b)(ii) above
and (y) any other obligation of the obligor on such indebtedness (or of
any other Person who could have incurred such indebtedness under this
Section 10.08) arising under any guarantee, Lien or letter of credit,
bankers’ acceptance or other similar instrument or obligation supporting such
Indebtedness shall be disregarded to the extent that such guarantee, Lien or
letter of credit, bankers’ acceptance or other similar instrument or obligation
secures the principal amount of such Indebtedness.


 


SECTION 10.09.
Limitation on Restricted Payments.  The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly:


 


(a) declare or pay any dividend or make any
other distribution or payment on or in respect of Capital Stock of the Company
or any Restricted Subsidiary or make any payment to the direct or indirect
holders (in their capacities as such) of Capital Stock of the Company or any
Restricted Subsidiary (other than dividends or distributions payable solely in
Capital Stock of the Company (other than Redeemable Capital Stock) or in
options, warrants or other rights to purchase Capital Stock of the Company
(other than Redeemable Capital Stock)) (other than the declaration or payment
of dividends or other distributions to the extent declared or paid to the
Company or any Restricted Subsidiary);


 


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(b) purchase, redeem, defease or otherwise
acquire or retire for value any Capital Stock of the Company or any Restricted
Subsidiary or any options, warrants, or other rights to purchase any such
Capital Stock (other than any such securities owned by the Company or a
Restricted Subsidiary);


 


(c) make any principal payment on, or
purchase, defease, repurchase, redeem or otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled repayment, scheduled sinking fund
payment or other Stated Maturity, any Subordinated Indebtedness (other than (A) any
such Subordinated Indebtedness owned by the Company or a Restricted Subsidiary
or (B) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value (collectively, for purposes of this clause
(c), a “purchase”) of
Subordinated Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment, final maturity or exercise of a right to put
on a set scheduled date (for the avoidance of doubt, not including any put
right in connection with a change of control event), in each case due within
one year of the date of such purchase; provided
that, in the case of any such purchase in anticipation of the exercise of a put
right, at the time of such purchase, it is more likely than not, in the good
faith judgment of the Board of Directors of the Company, that such put right
would be exercised if such put right were exercisable on the date of such
purchase); or


 


(d) make any Investment (other than any
Permitted Investment) in any Person,


 


(such
payments or Investments described in the preceding clauses (a), (b), (c) and
(d) are collectively referred to as “Restricted Payments”),
unless, after giving effect to the proposed Restricted Payment (the amount of
any such Restricted Payment, if other than cash, shall be the Fair Market Value
of the asset(s) proposed to be transferred by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted
Payment), (A) no Default or Event of Default shall have occurred and be
continuing (or would result therefrom), (B) immediately after giving
effect to such Restricted Payment, the Company would be able to incur $1.00 of
additional Indebtedness pursuant to Section 10.08(a) and (C) the
aggregate amount of such Restricted Payment together with all other Restricted
Payments (including the Fair Market Value of any non-cash Restricted Payments)
declared or made since the Issue Date would not exceed the sum of (without
duplication):


 


(1) 50%
of the Consolidated Net Income of the Company accrued during the period
(treated as one accounting period) from the Issue Date to the end of the most
recent fiscal quarter of the Company ending at least 45 days prior to the date
of such proposed Restricted Payment (or, if such aggregate cumulative Consolidated
Net Income of the Company for such period shall be a deficit, minus 100% of
such deficit);


 


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(2)
the aggregate net cash proceeds and the Fair Market Value of property or assets
received by the Company as capital contributions to the Company after the Issue
Date;


 


(3)
the aggregate net cash proceeds and the Fair Market Value of property or assets
received by the Company from the issuance or sale of Capital Stock (excluding
Redeemable Capital Stock of the Company) of the Company to any Person (other
than an issuance or sale to a Subsidiary of the Company and other than an
issuance or sale to an employee stock ownership plan or to a trust established
by the Company or any Subsidiary of the Company for the benefit of employees of
the Company or any Subsidiary of the Company) after the Issue Date;


 


(4)
the aggregate net cash proceeds received by the Company from any Person (other
than a Subsidiary of the Company) upon the exercise of any options, warrants or
rights to purchase shares of Capital Stock (other than Redeemable Capital
Stock) of the Company after the Issue Date;


 


(5)
the aggregate net cash proceeds and the Fair Market Value of property or assets
received after the Issue Date by the Company from any Person (other than a
Subsidiary of the Company) for debt securities that have been converted or
exchanged into or for Capital Stock of the Company or Holdings (other than
Redeemable Capital Stock) (to the extent such debt securities were originally
sold by the Company for cash) plus the aggregate amount of cash received by the
Company (other than from a Subsidiary of the Company) in connection with such
conversion or exchange;


 


(6)
in the case of the disposition or repayment of any Investment constituting a
Restricted Payment made after the Issue Date, an amount equal to the return of
capital with respect to such Investment less the cost of the disposition of
such Investment;


 


(7)
the aggregate amount equal to the net reduction in Investments (other than
Permitted Investments) in Unrestricted Subsidiaries resulting from dividends,
distributions, interest payments, return of capital, repayments of Investments
or other transfers of assets to the Company or any Restricted Subsidiary from
any Unrestricted Subsidiary; and


 


(8)
so long as the Designation thereof was treated as a Restricted Payment made
after the Issue Date, with respect to any Unrestricted Subsidiary that has been
redesignated as a Restricted Subsidiary in accordance with Section 10.17
below, the Fair Market Value of the Company’s interest in such Subsidiary.


 


For
purposes of the preceding clause (C)(4), the value of the aggregate net
proceeds received by the Company upon the issuance of Capital Stock upon the
exercise of options, warrants or rights will be the net cash proceeds received
upon the issuance of


 


75

















 


such
options, warrants or rights plus the incremental amount received by the Company
upon the exercise thereof.


 


None
of the foregoing provisions shall prohibit, so long, in the case of
clauses (i), (v), (vi), (vii), (viii), (ix), (xi) and (xv) below, as there
is no Default or Event of Default continuing, (i) the payment of any
dividend or distribution within 60 days after the date of its declaration,
if at the date of declaration such payment would be permitted by the first
paragraph of this Section 10.09; (ii) the purchase, redemption, repurchase
or other acquisition or retirement of any shares of any class of Capital Stock
or Subordinated Indebtedness of the Company in exchange for, or out of the net
cash proceeds of, a substantially concurrent issue and sale of other shares of
Capital Stock of the Company (other than Redeemable Capital Stock of the
Company) to any Person (other than to a Subsidiary of the Company) or a
substantially concurrent cash capital contribution to the Company; provided, however,
that such net cash proceeds are excluded from clause (C) of the first
paragraph of this Section 10.09; (iii) any redemption, repurchase, defeasance
or other acquisition or retirement of Subordinated Indebtedness by exchange
for, or out of the net cash proceeds of, a substantially concurrent issue and
sale of (1) Capital Stock of the Company (other than Redeemable Capital
Stock) to any Person (other than to a Subsidiary of the Company); provided, however,
that any such net cash proceeds are excluded from clause (C) of the first
paragraph of this Section 10.09; or (2) Indebtedness of the Company so
long as such Indebtedness is Subordinated Indebtedness which (x) has no
scheduled principal payment prior to the 91st day after the Maturity Date,
(y) has an Average Life to Stated Maturity greater than the remaining
Average Life to Stated Maturity of the Securities and (z) is subordinated
to the Securities in the same manner and to the same extent as the Subordinated
Indebtedness so purchased, exchanged, redeemed, acquired or retired; (iv) Investments
constituting Restricted Payments made as a result of the receipt of non-cash
consideration from any Asset Sale or other sale of assets or property made
pursuant to and in compliance with this Indenture; (v) payments to
purchase Capital Stock of the Company or Holdings from officers of the Company
or Holdings in an amount, together with all Restricted Payments made pursuant
to this clause (v), not to exceed the sum of (1) $15,000,000 plus (2) $5
million multiplied by the number of calendar years that have commenced since
the Issue Date; (vi) payments (other than those covered by
clause (v)) to purchase Capital Stock of the Company or Holdings from
management or employees of the Company or any of its Subsidiaries, or their
authorized representatives, upon the death, disability or termination of
employment of such employees, in aggregate amounts under this clause (vi)
not to exceed $1,000,000 in any fiscal year of the Company; (vii) payments
to Holdings in an amount sufficient to permit it to (I) make scheduled payments
of interest on (A) the 4% Notes and (B) any Indebtedness incurred by
Holdings to refinance any Indebtedness described in clause (A); provided that such Indebtedness would otherwise satisfy the
requirements of Section 10.08(b)(xi)(B)(1), and (II) purchase, repurchase,
redeem, defease or otherwise acquire or retire within one year of final
maturity the 4% Notes; provided that
any payments made pursuant to this clause (II) are made with the proceeds of
Indebtedness permitted to be incurred under this Indenture and any such
Indebtedness would otherwise satisfy the requirements of
Section 10.08(b)(xi)(B)(1) and (2)(x) and (y); (viii) upon the occurrence
of a Change of Control and within 60 days after the completion of the
offer to


 


76

















 


repurchase
the Securities pursuant to Section 10.13 (including the purchase of the
Securities tendered), any purchase or redemption of Subordinated Indebtedness
or any Capital Stock of Holdings, the Company or any Restricted Subsidiaries
required pursuant to the terms thereof as a result of such Change of Control at
a purchase or redemption price not to exceed 101% of the outstanding principal
amount or liquidation amount thereof, plus accrued and unpaid interest or dividends
(if any); provided, however, that
at the time of such purchase or redemption no Default shall have occurred and
be continuing (or would result therefrom); (ix) upon the occurrence of an Asset
Sale and within 60 days after the completion of an Asset Sale Offer to
repurchase the Securities pursuant to Section 10.14 (including the
purchase of the Securities tendered), any purchase or redemption of
Subordinated Indebtedness or any Capital Stock of Holdings, the Company or any
Restricted Subsidiaries required pursuant to the terms thereof as a result of
such Asset Sale; provided, however,
that at the time of such purchase or redemption no Default shall have occurred
and be continuing (or would result therefrom); (x) payments to Holdings in
an amount sufficient to enable Holdings to pay (1) its taxes, legal,
accounting, payroll, benefits, incentive compensation, insurance and corporate
overhead expenses (including Commission, stock exchange and transfer agency
fees and expenses) and expenses of United Rentals Trust I payable by Holdings
pursuant to the terms of the trust agreement governing such trust,
(2) trade, lease, payroll, benefits, incentive compensation and other
obligations in respect of goods to be delivered to, services (including
management and consulting services) performed for and properties used by, the
Company and the Restricted Subsidiaries, (3) the purchase price for
Investments in other Persons; provided,
however, that promptly following such Investment either
(x) such other Person either becomes a Restricted Subsidiary or is merged
or consolidated with, or transfers or conveys all or substantially all of its
assets to, the Company or a Restricted Subsidiary, or (y) such Investment
would otherwise be permitted under this Indenture if made by the Company and
such Investment is contributed or transferred by Holdings to the Company or a
Restricted Subsidiary and (4) reasonable and customary incidental expenses
as determined in good faith by the Board of Directors of Holdings; (xi) cash
payments in lieu of the issuance of fractional shares in connection with the
exercise of any warrants, options or other securities convertible into or
exchangeable for Capital Stock of Holdings, the Company or any Restricted
Subsidiary; (xii) the deemed repurchase of Capital Stock on the cashless
exercise of stock options; (xiii) the payment of any dividend or
distribution by a Restricted Subsidiary to the holders of its Capital Stock on
a pro rata basis; (xiv) any Investment made in a Special Purpose Vehicle in
connection with a Securitization Transaction, which Investment consists of the
assets described in the definition of “Equipment Securitization Transaction” or
“Receivables Securitization Transaction”; and (xv) any Restricted Payment in an
amount which, when taken together with all Restricted Payments made after the
Issue Date pursuant to this clause (xv), does not exceed
$150,000,000.  Any payments made pursuant
to clauses (i) or (xv) of this paragraph shall be taken into account in
calculating the amount of Restricted Payments made from and after the Issue
Date.


 


SECTION
10.10. Limitation on Preferred Stock of
Restricted Subsidiaries.  The
Company shall not permit any Restricted Subsidiary to issue any Preferred Stock
other than Preferred Stock issued to the Company or a Wholly Owned Restricted


 


77

















 


Subsidiary.  The Company shall not sell, transfer or
otherwise dispose of Preferred Stock issued by a Restricted Subsidiary or
permit a Restricted Subsidiary to sell, transfer or otherwise dispose of
Preferred Stock issued by a Restricted Subsidiary, other than to the Company or
a Wholly Owned Restricted Subsidiary. 
Notwithstanding the foregoing, nothing in this Section 10.10 shall prohibit
Preferred Stock (other than Redeemable Capital Stock) issued by a Person prior
to the time (A) such Person becomes a Restricted Subsidiary, (B) such
Person merges with or into a Restricted Subsidiary or (C) a Restricted
Subsidiary merges with or into such Person; provided,
however, that such Preferred Stock was not issued or incurred by
such Person in anticipation of a transaction contemplated by
subclause (A), (B) or (C) above.


 


SECTION
10.11. Limitation on Transactions with
Affiliates.  The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
enter into any transaction or series of related transactions (including,
without limitation, the sale, transfer, disposition, purchase, exchange or
lease of assets, property or services) with, or for the benefit of, any of its
Affiliates (other than Restricted Subsidiaries), except (a) on terms that
are not materially less favorable to the Company or such Subsidiary, as the
case may be, than those which could have been obtained in a comparable transaction
at such time from Persons who are not Affiliates of the Company, (b) with
respect to a transaction or series of related transactions involving aggregate
payments or value equal to or greater than $10,000,000 the Company shall have
delivered an Officer’s Certificate to the Trustee certifying that such
transaction or transactions comply with the preceding clause (a), (c) with
respect to a transaction or series of related transactions involving aggregate
payments or value equal to or greater than $20,000,000, such transaction or
transactions shall have been approved by a majority of the Disinterested
Members of the Board of Directors of the Company, and (d) with respect to a
transaction or series of related transactions involving aggregate payments or
value equal to or greater than $50,000,000, the Board of Directors of the
Company shall also have received a written opinion from an Independent
Qualified Party to the effect that such transaction or series of related
transactions is fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries or is not less favorable to the Company and its
Restricted Subsidiaries than could reasonably be expected to be obtained at the
time in an arm’s length transaction with a non-Affiliate.


 


Notwithstanding
the foregoing, the restrictions set forth in this Section 10.11 shall not apply
to (i) transactions with or among the Company and the Restricted
Subsidiaries, (ii) transactions in the ordinary course of business, or approved
by a majority of the Board of Directors of the Company, between the Company or
any Restricted Subsidiary and any Affiliate of the Company that is a joint
venture or similar entity, including United Rentals Industrial
Services Inc., (iii) (A) customary directors’ fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the
Company or any Restricted Subsidiary entered into in the ordinary course of
business and (B) any transaction with an officer or director in the ordinary
course of business not involving more than $100,000 in any one case,
(iv) any dividends, payments or investments made in compliance with
Section 10.09, (v) loans and advances to officers, directors and


 


78

















 


employees
of the Company or any Restricted Subsidiary for travel, entertainment, moving
and other relocation expenses, in each case made in the ordinary course of
business, (vi) the incurrence of intercompany Indebtedness which
constitutes Indebtedness permitted to be incurred under Section 10.08,
(vii) transactions pursuant to agreements in effect on the Issue Date,
(viii) any sale, conveyance or other transfer of assets customarily
transferred in a Securitization Transaction to a Special Purpose Vehicle, (ix)
transactions with customers, clients, suppliers, joint venture partners, joint
ventures, including their members or partners, or purchasers or sellers of
goods or services, in each case in the ordinary course of business, including
pursuant to joint venture agreements, and otherwise in compliance with the
terms of this Indenture which are, in the aggregate (taking into account all
the costs and benefits associated with such transactions), materially no less
favorable to the Company or the applicable Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
that Restricted Subsidiary with an unrelated Person or entity, in the good
faith determination of the Company’s Board of Directors or its senior
management, or are on terms at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party, (x) transactions
described in, or permitted by, clauses (vii) and (x) of the final
paragraph of Section 10.09 and (xi) any issuance or sale of Capital Stock
(other than Redeemable Capital Stock and other than proceeds from the issuance
of Capital Stock to Holdings or a Subsidiary of Holdings or to an employee
stock ownership plan or to a trust established by Holdings or any of its
Subsidiaries for the benefit of their employees) of the Company or capital
contribution to the Company.


 


SECTION
10.12. Limitation on Liens.  The Company shall not, and shall not permit
any Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien
(the “Initial Lien”) of any kind
against or upon any of its property or assets, or any proceeds therefrom,
unless the Securities are equally and ratably secured (except that Liens
securing Subordinated Indebtedness shall be expressly subordinate to Liens
securing the Securities to the same extent such Subordinated Indebtedness is
subordinate to the Securities), except for (a) Liens securing Senior
Indebtedness, (b) Liens securing the Securities and (c) Permitted Liens.  Any Lien created for the benefit of the
Holders of the Securities pursuant to the preceding sentence shall provide by
its terms that such Lien shall be automatically and unconditionally released
and discharged upon the release and discharge of the Initial Lien.


 


SECTION
10.13. Change of Control.  (a)  On
or before the 30th day after the date of the occurrence of a Change of Control,
the Company shall make an Offer to Purchase (a “Change of Control Offer”) on a Business Day not more than 60
nor less than 30 days following the occurrence of the Change of Control
(the “Change of Control Purchase Date”),
all of the then Outstanding Securities tendered at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, thereon to the Change of Control Purchase Date.  The Company shall be required to purchase all
Securities tendered into the Change of Control Offer and not withdrawn.  The Change in Control Offer shall remain open
for at least 20 Business Days.


 


(b)  On the Change of Control Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof (not
less than $1,000 principal


 


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amount and integral multiples thereof) tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money, in immediately available funds, sufficient to pay the purchase
price of all Securities or portions thereof so tendered and accepted and
(iii) deliver to the Trustee the Securities so accepted together with an
Officer’s Certificate setting forth the Securities or portions thereof tendered
to and accepted for payment by the Company. 
The Paying Agent shall promptly mail or deliver to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and
the Trustee shall promptly authenticate and make available for delivery to such
Holders a new Security of like tenor equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Change of Control Offer not
later than the third Business Day following the Change of Control Purchase
Date.


 


(c)  The Company shall 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 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.


 


(d)  The Company shall comply with Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder, to the extent such laws or regulations are applicable, in the event
that a Change of Control occurs and the Company is required to purchase
Securities as described above.


 


(e)  Upon the occurrence of a Change of Control,
the Company shall not repurchase any Subordinated Indebtedness of the Company
pursuant to an offer to purchase or otherwise until (1) the requirements
of this Section 10.13 have been satisfied or (2) the Company shall have
obtained the requisite consent under this Indenture to permit the repurchase of
such Subordinated Indebtedness.


 


SECTION
10.14. Disposition of Proceeds of Asset
Sales.  The Company will not,
and will not permit any Restricted Subsidiary to, make any Asset Sale unless
(a) the Company or such Restricted Subsidiary, as the case may be,
receives consideration (including by way of relief from, or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise) at the
time of such Asset Sale at least equal to the Fair Market Value of the shares
or assets sold or otherwise disposed of and (b) at least 75% of such
consideration consists of cash or Cash Equivalents or Replacement Assets; provided, however,
that (i) the amount of any liabilities (as shown on the most recent
balance sheet of the Company or such Restricted Subsidiary) of the Company or
such Restricted Subsidiary that are assumed by the transferee of such assets
and (ii) any securities, notes or other obligations received by the
Company or such Restricted Subsidiary from such transferee that are converted
within 180 days into cash or Cash Equivalents (to the extent of the cash
or Cash Equivalents received) shall be deemed to be cash for the purposes of
this provision; provided further,
that the 75% limitation referred to in clause (b) will not apply to any
Asset Sale in which the cash or Cash Equivalent portion of the consideration
received therefrom, determined in


 


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accordance with the
foregoing provision, is equal to or greater than what the after-tax proceeds
would have been had such Asset Sale complied with the aforementioned 75%
limitation.


 


To
the extent that the Net Cash Proceeds of any Asset Sale are not required to be applied
to repay, and permanently reduce the commitments under, Senior Indebtedness of
the Company or any Restricted Subsidiary, or are not so applied, the Company or
such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds
from such Asset Sale, within 365 days of such Asset Sale, to an investment
in properties and assets that replace the properties and assets that were the
subject of such Asset Sale or in properties and assets that are used or useful
in the business of the Company and its Restricted Subsidiaries conducted at
such time or in businesses reasonably related thereto or in Capital Stock of a
Person, the principal portion of whose assets consist of such property or
assets (collectively, “Replacement Assets”); provided
however, that any such reinvestment in Replacement Assets made
pursuant to a definitive binding agreement or commitment approved by the Board
of Directors of the Company that is executed or approved within such time shall
satisfy this requirement, so long as such investment is consummated within 180
days of such 365th day; provided that
in the event such binding agreement or commitment is later canceled or
terminated for any reason before such Net Cash Proceeds are so applied, the
Company or such Restricted Subsidiary may satisfy its obligations as to any Net
Cash Proceeds by entering into another binding agreement or commitment within
six months of such cancellation or termination of the prior binding agreement
or commitment or treating such Net Cash Proceeds as Excess Proceeds; provided further that the Company or such Restricted
Subsidiary may only enter into such an agreement or commitment under the
foregoing provision one time with respect to each Asset Sale.  Any Net Cash Proceeds from any Asset Sale that
are neither used to repay, and permanently reduce the commitments under, Senior
Indebtedness of the Company, nor invested in Replacement Assets pursuant to the
preceding sentence constitute “Excess Proceeds” subject to disposition as
provided below.


 


When
the aggregate amount of Excess Proceeds equals or exceeds $35,000,000, the
Company shall make an offer to purchase (an “Asset
Sale Offer”), from
all Holders of the Securities, an aggregate principal amount of Securities
equal to such Excess Proceeds, at a price in cash equal to 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
thereon to the Purchase Date (the “Asset
Sale Offer Price”).  To the extent that the aggregate principal
amount of Securities tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use such deficiency for general corporate
purposes.  The Securities shall be
purchased by the Company, at the option of the Holder thereof, in whole or in
part in integral multiples of $1,000, on a date that is not earlier than
30 days and not later than 60 days from the date the notice is given
to Holders, or such later date as may be necessary for the Company to comply
with the requirements under the Exchange Act. 
If Securities purchasable at an aggregate Purchase Price in excess of
the Purchase Amount are tendered and not withdrawn pursuant to the Asset Sale
Offer to Purchase, the Company shall purchase Securities on a pro rata basis,
based on the Purchase Price therefor, or such other method as the Trustee shall
deem fair and appropriate (subject in


 


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each
case to applicable rules of the Depositary and any securities exchange upon
which the Securities may then be listed), with such adjustments as may be
deemed appropriate so that only Securities in denominations of $1,000 principal
face amount or integral multiples thereof shall be purchased. Notwithstanding
the foregoing, if the Company is required to commence an Asset Sale Offer at any
time when securities of the Company ranking pari passu
in right of payment with the Securities are outstanding and the terms of such
securities provide that a similar offer must be made with respect to such other
securities, then the Asset Sale Offer for the Securities shall be made
concurrently with such other offers and securities of each issue will be
accepted on a pro rata basis in proportion to the aggregate principal amount of
securities of each issue which the holders thereof elect to have purchased. Any
Asset Sale Offer will be made only to the extent permitted under, and subject
to prior compliance with, the terms of agreements governing Senior
Indebtedness. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero.


 


On
the Purchase Date under this Section 10.14, the Company shall
(i) accept for payment (subject to proration as described in the Offer to
Purchase) Securities or portions thereof tendered pursuant to the Asset Sale
Offer, (ii) deposit with the Paying Agent money, in immediately available
funds, sufficient to pay the purchase price of all Securities or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the
Securities so accepted together with an Officer’s Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by the
Company.  The Paying Agent shall promptly
mail or deliver to the Holders of Securities so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
make available for delivery to such Holders a new Security of like tenor equal
in principal amount to any unpurchased portion of the Security
surrendered.  Any Securities not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof.  The Company shall publicly
announce the results of the Asset Sale Offer not later than the third Business
Day following the Asset Sale Offer Purchase Date.


 


Whenever
the aggregate amount of Excess Proceeds received by the Company and its
Restricted Subsidiaries exceeds $35,000,000, such Excess Proceeds shall, prior
to the purchase of Securities, be set aside by the Company or such Restricted
Subsidiary, as the case may be, in a separate account pending (i) deposit
with the Paying Agent of the amount required to purchase the Securities
tendered in an Asset Sale Offer or (ii) delivery by the Company of the
Asset Sale Offer Price to the Holders of the Securities validly tendered and
not withdrawn pursuant to an Asset Sale Offer. 
Such Excess Proceeds may be invested in Cash Equivalents, as directed by
the Company, having a maturity date which is not later than the earliest
possible date for purchase of Securities pursuant to the Asset Sale Offer.  The Company will be entitled to any interest
or dividends accrued, earned or paid on such Cash Equivalents.


 


The
Company shall comply with Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder, to the extent such laws and
regulations are applicable, in the event that an Asset Sale occurs and the
Company is required to purchase Securities as described above.


 


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SECTION
10.15. Limitation on Dividends and Other
Payment Restrictions Affecting Restricted Subsidiaries.  The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to (a) pay
dividends, in cash or otherwise, or make any other distributions on or in
respect of its Capital Stock or any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness owed to the Company or
any other Restricted Subsidiary, (c) make loans or advances to the Company
or any other Restricted Subsidiary, (d) transfer any of its properties or
assets to the Company or any other Restricted Subsidiary or (e) guarantee
any Indebtedness of the Company or any other Restricted Subsidiary, except for
such encumbrances or restrictions existing under or by reason of
(i) applicable law or any applicable rule, regulation or order,
(ii) (A) customary non-assignment provisions of any contract or any
lease governing a leasehold interest of the Company or any Restricted
Subsidiary and (B) pursuant to customary provisions restricting
dispositions of real property interests set forth in any reciprocal easement
agreement of the Company or any Restricted Subsidiary, (iii) customary restrictions
on transfers of property subject to a Lien permitted under this Indenture,
(iv) instruments governing Indebtedness as in effect on the Issue Date,
including the Credit Agreement, (v) any agreement or other instrument of a
Person, or relating to Indebtedness or Capital Stock of a Person, which Person
is acquired by or merged or consolidated with the Company or any Restricted
Subsidiary, or which agreement or instrument is assumed by the Company or any
Restricted Subsidiary in connection with an acquisition of assets from such
Person, as in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, (vi) an agreement
entered into for the sale or disposition of Capital Stock or assets of a
Restricted Subsidiary or an agreement entered into for the sale of specified
assets (in either case, so long as such encumbrance or restriction, by its
terms, terminates on the earlier of the termination of such agreement or the
consummation of such agreement and so long as such restriction applies only to
the Capital Stock or assets to be sold), (vii) any agreement in effect on
the Issue Date, (viii) this Indenture and the Guarantees, (ix) joint
venture agreements and other similar agreements entered into in the ordinary
course of business that prohibit actions of the type described in clauses (a),
(c), (d) and (e) above, (x) any agreement entered into with respect to a
Special Purpose Vehicle in connection with a Securitization Transaction,
containing customary restrictions required by the institutional sponsor or
arranger of such Securitization Transaction in similar types of documents
relating to the purchase of similar assets in connection with the financing
thereof, (xi) restrictions relating to Foreign Subsidiaries contained in
Indebtedness incurred pursuant to clause (xii) or (xvi) of Section 10.08(b), (xii)
(A) on cash or other deposits or net worth imposed by customers or suppliers
under agreements entered into in the ordinary course of business, (B) that
arises or is agreed to in the ordinary course of business and does not detract
from the value of property or assets of the Company or any Restricted
Subsidiary in any manner material to the Company or such Restricted Subsidiary
or adversely effect the ability of the Company to make interest and principal
payments with respect to the Securities or (C) pursuant to Interest Rate
Protection Agreements, (xiii) Purchase Money


 


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Obligations with respect
to property or assets acquired in the ordinary course of business that impose
encumbrances or restrictions on the property or assets so acquired, (xiv) an
agreement or instrument relating to any Indebtedness permitted to be incurred
subsequent to the Issue Date pursuant to Section 10.08 (A) if the
encumbrances and restrictions contained in any such agreement or instrument
taken as a whole are not materially less favorable to the Holders of the
Securities than the encumbrances and restrictions contained in instruments
governing Indebtedness as in effect on the Issue Date (as determined in good
faith by the Company), or (B) if such encumbrance or restriction is not
materially more disadvantageous to the Holders of the Securities than is
customary in comparable financings (as determined in good faith by the Company)
and either (x) the Company determines in good faith that such encumbrance
or restriction will not materially affect the Company’s ability to make
principal or interest payments on the Securities or (y) such encumbrance
or restriction applies only if a default occurs in respect of a payment or
financial covenant relating to such Indebtedness and (xv) any agreement that
amends, extends, refinances, renews or replaces any agreement described in the
foregoing clauses; provided, however,
that the terms and conditions of any such agreement are not materially less favorable
to the Holders of the Securities with respect to such dividend and payment
restrictions than those under or pursuant to the agreement amended, extended,
refinanced, renewed or replaced.


 


SECTION
10.16. Additional Subsidiary Guarantees.  The Company will cause each Domestic
Subsidiary that guarantees any Indebtedness of the Company or any other
Restricted Subsidiary to at the same time execute and deliver to the Trustee a
Guaranty Agreement pursuant to which such Domestic Subsidiary will guarantee payment
of the Securities on the same terms and conditions as those set forth in this
Indenture.  This Section 10.16 shall
not apply to any of the Company’s Subsidiaries that have been properly
designated as an Unrestricted Subsidiary or as a Special Purpose Vehicle.


 


SECTION
10.17. Limitations on Designation of
Unrestricted Subsidiaries. 
(a)  The Company may designate any
Restricted Subsidiary as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:


 


(i)
no Default shall have occurred and be continuing at the time of or after giving
effect to such Designation;


 


(ii)
the Company would be permitted to make an Investment (other than a Permitted
Investment, except a Permitted Investment covered by clause (xii) of the
definition thereof) at the time of Designation (assuming the effectiveness of
such Designation) pursuant to the first paragraph of Section 10.09 in an
amount (the “Designation Amount”) equal to the Fair Market Value of
the Company’s interest in such Subsidiary on such date calculated in accordance
with GAAP; and


 


(iii)
the Company would be permitted under this Indenture to incur $1.00 of
additional Indebtedness pursuant to Section 10.08(a) at the time of such
Designation (assuming the effectiveness of such Designation).


 


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In
the event of any such Designation, the Company shall be deemed to have made an
Investment constituting a Restricted Payment pursuant to Section 10.09 for
all purposes of this Indenture in the Designation Amount.


 


All
Subsidiaries of Unrestricted Subsidiaries shall automatically be deemed to be
Unrestricted Subsidiaries.


 


(b)  The Company may revoke any Designation of a
Subsidiary as an  Unrestricted Subsidiary
(a “Revocation”) if:


 


(i) no Default shall have
occurred and be continuing at the time of and after giving effect to such
Revocation, and


 


(ii)
all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if incurred at such time by a
Restricted Subsidiary, have been permitted to be incurred for all purposes of
this Indenture.


 


(c)  All Designations and Revocations must be
evidenced by Board Resolutions of the Company delivered to the Trustee
certifying compliance with the foregoing provisions.


 


SECTION
10.18. Provision of Financial Information.  For so long as the Securities are
outstanding, whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company
shall file with the Commission (if permitted by Commission practice and applicable
law and regulations) the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the
Company were so subject, such documents to be filed with the Commission on or
prior to the respective dates (the “Required
Filing Dates”) by which the Company would have been required so to
file such documents if the Company were so subject.  If, notwithstanding the preceding sentence,
filing such documents by the Company with the Commission is not permitted by
Commission practice or applicable law or regulations, the Company will transmit
(or cause to be transmitted) by mail to the Trustee and all Holders of the
Securities, as their names and addresses appear in the Securities Register,
copies of such documents within 30 days after the Required Filing
Date.  In addition, for so long as any
Securities remain outstanding, the Company will furnish to the Holders of
Securities and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act, and, to any beneficial Holder of
Securities, if not obtainable from the Commission, information of the type that
would be filed with the Commission pursuant to the foregoing provisions upon
the request of any such Holder.


 


SECTION
10.19. Statement by Officers as to Default;
Compliance Certificates. 
(a)  The Company shall deliver to
the Trustee, prior to March 31 in each year commencing with the year
beginning on January 1, 2011, an Officer’s Certificate,


 


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stating whether or not to
the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which he may have knowledge.


 


(b)  The Company shall deliver to the Trustee, as
soon as possible and in any event within five days after the Company becomes
aware of the occurrence of a Default or an Event of Default, an Officer’s
Certificate setting forth the details of such Default or Event of Default, and
the action which the Company proposes to take with respect thereto.


 


SECTION
10.20. Limitation of the Issuance of
Subordinated Indebtedness. 
The Company will not, directly or indirectly, incur any indebtedness
(including Acquired Indebtedness) that is subordinate in right of payment to
any Indebtedness of the Company and senior in right of payment to the
Securities.


 


ARTICLE
XI


 


Redemption
of Securities


 


SECTION
11.01. Right of Redemption/Mandatory
Redemption.  The Securities
may be redeemed at the election of the Company, in the amounts, at the times,
at the Redemption Prices (together with any applicable accrued and unpaid
interest to the Redemption Date), and subject to the conditions specified in
the form of Security and hereinafter set forth. 
The Company also shall redeem the Securities in the amounts, at the
times, at the Redemption Prices (together with any applicable accrued and
unpaid interest to the Redemption Date), and subject to the conditions
specified in the form of Security and hereinafter set forth.


 


SECTION
11.02. Applicability of Article.  Redemption of Securities at the election of
the Company, as permitted by this Indenture and the provisions of the
Securities, shall be made in accordance with such provisions and this Article.


 


SECTION
11.03. Election to Redeem; Notice to Trustee.  The election of the Company to redeem any
Securities pursuant to Section 11.01 shall be evidenced by a Board
Resolution.  In the event of any
redemption at the election of the Company pursuant to Section 11.01, the
Company shall notify the Trustee, in case of a redemption of less than all the
Securities, at least 60 days, and in the case of a redemption of all the
Securities, at least 40 days, prior to the Redemption Date fixed by the
Company (in each case, unless a shorter notice shall be satisfactory to the
Trustee) of such Redemption Date and of the principal amount of Securities to
be redeemed.


 


SECTION
11.04. Selection by Trustee of Securities to
Be Redeemed.  In the event
that less than all of the Securities are to be redeemed at any time, selection
of such Securities for redemption will be made by the Trustee in compliance
with the


 


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requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not then listed on a national securities
exchange, on a pro rata basis, to the extent practicable (subject to the rules
of the Depositary); provided, however, that Securities shall only be
redeemable in amounts of $1,000 or an integral multiple of $1,000.


 


The
Trustee shall promptly notify the Company and each Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.


 


For
all purposes of this Indenture and of the Securities, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.


 


SECTION
11.05. Notice of Redemption.  Notice of redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
his address appearing in the Security Register, except that redemption notices
may be mailed more than 60 days prior to the Redemption Date if the notice
of redemption is issued in connection with (i) a satisfaction and
discharge of securities in accordance with Article IV or (ii) a defeasance
in accordance with Article XII.


 


All
notices of redemption shall identify the Securities to be redeemed (including,
if used, CUSIP or CINS numbers) and shall state:


 


(i)
the Redemption Date;


 


(ii)
the Redemption Price;


 


(iii)
if less than all the Outstanding Securities are to be redeemed,  the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities to be
redeemed;


 


(iv)
that on the Redemption Date the Redemption Price and accrued interest to, but
excluding, the Redemption Date, will become due and payable upon each such
Security to be redeemed and that interest thereon will cease to accrue on and
after such Redemption Date;


 


(v)
the place or places where such Securities are to be surrendered for payment of
the Redemption Price accrued interest to, but excluding, the Redemption Date;
and


 


(vi)
if the redemption is being made pursuant to the provisions of the Securities
regarding a Public Equity Offering, a brief description of the transaction or
transactions giving rise to such redemption, the aggregate purchase price
thereof and the net cash  proceeds
therefrom available for such redemption, the date or dates on which such
transaction or transactions were completed and


 


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the percentage of the
aggregate principal amount of Outstanding Securities being redeemed.


 


Notice
of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s request and provision of such
notice information to the Trustee five days prior to the mailing of such
notice, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.


 


SECTION
11.06. Deposit of Redemption Price.  Prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date) any
applicable accrued interest on, all the Securities which are to be redeemed on
that date.


 


SECTION
11.07. Securities Payable on Redemption Date.  Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and any applicable accrued interest or the Paying Agent is
prohibited from making such payment pursuant to Article XIV) interest shall
cease to accrue on such Securities or portions thereof.  Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with any applicable accrued and
unpaid interest to the Redemption Date; provided,
however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more predecessor
securities, registered as such at the close of business on the relevant record
dates according to their terms and the provisions of Section 3.07.


 


If
any Security called for redemption in accordance with the election of the
Company made pursuant to Section 11.01 shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Security.


 


SECTION
11.08. Securities Redeemed in Part.  Any Security which is to be redeemed only in
part shall be surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 10.02 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount at Stated Maturity equal to and in exchange for the unredeemed portion
of the principal amount at Stated Maturity of the Security so surrendered.


 


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ARTICLE
XII


 


Defeasance
and Covenant Defeasance


 


SECTION
12.01. Company’s Option to Effect Defeasance
or Covenant Defeasance.  The
Company may elect, at its option at any time, to have Section 12.02 or
Section 12.03 applied to the Outstanding Securities (as a whole and not in
part) upon compliance with the conditions set forth below in this Article.  Any such election shall be evidenced by a
Board Resolution.


 


SECTION
12.02. Defeasance and Discharge.  Upon the Company’s exercise of its option to
have this Section applied to the Outstanding Securities (as a whole and not in
part), the Company shall be deemed to have been discharged from its obligations
with respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 12.04 are satisfied (hereinafter
called “Defeasance”).  For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights
of Holders of Outstanding Securities to receive, solely from the trust fund
described in Section 12.04 and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Securities when payments are due, (2) the Company’s obligations with
respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and
10.03, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. 
Subject to compliance with this Article, the Company may exercise its
option to have this Section applied to the Outstanding Securities (as a whole
and not in part) notwithstanding the prior exercise of its option to have
Section 12.03 applied to such Securities.


 


SECTION
12.03. Covenant Defeasance.  Upon the Company’s exercise of its option to
have this Section applied to the Outstanding Securities (as a whole and not in
part), (i) the Company shall be released from its obligations under
Section 8.01(3), Sections 10.05 through 10.18, inclusive, Section
10.20, and any covenant provided pursuant to Section 9.01(ii) and the
Guarantors shall be released from their obligations under Article XIII and
the Guarantees, and (ii) the occurrence of any event specified in
Sections 5.01(3) and 5.01(4) (with respect to Section 8.01(3) and any
of Sections 10.05 through 10.18, inclusive, and Section 10.20, and any
such covenants provided pursuant to Section 9.01(ii)), shall be deemed not
to be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 12.04 are satisfied (hereinafter called “Covenant Defeasance”).  For this purpose, such Covenant Defeasance
means that, with respect to such Securities, 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 specified Section (to the extent so specified
in the case of Section 5.01(3) or 5.01(4)), whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
by reason


 


89

















 


of any reference in any
such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.


 


SECTION
12.04. Conditions to Defeasance or Covenant
Defeasance.  The following
shall be the conditions to the application of Section 12.02 or
Section 12.03 to the Outstanding Securities:


 


(1)
The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by
Section 6.09 and agrees to comply with the provisions of this Article
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal of,
premium, if any, and any installment of interest on such Securities on the
respective Stated Maturities or Redemption Date thereof, in accordance with the
terms of this Indenture and such Securities. 
As used herein, “U.S. Government Obligation” means (x) any security
which is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation
which is so specified and held; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.


 


(2)
In the event of an election to have Section 12.02 apply to the Outstanding
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this instrument, there has been a change in the applicable federal income
tax law,


 


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in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.


 


(3)
In the event of an election to have Section 12.03 apply to the Outstanding
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit 
and Covenant Defeasance were not to occur.


 


(4)
No Default or Event of Default with respect to the Outstanding Securities shall
have occurred and be continuing at the time of such deposit (excluding a
Default or an Event of Default due to a breach of Sections 10.08 or 10.12
which arises due to the borrowing of funds applied to such deposit).


 


(5)
Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities of the Company or any
Guarantor.


 


(6)
Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other material agreement or
instrument to which the Company or any Subsidiary is a party or by which it is
bound (excluding a Default or an Event of Default due to a breach of
Sections 10.08 or 10.12 which arises due to the borrowing of funds applied
to such deposit).


 


(7)
The Company shall have delivered to the Trustee an Opinion of Counsel (which
opinion may be subject to customary assumptions and exceptions) 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.


 


(8)
The Company shall have delivered to the Trustee an Officer’s Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of the Securities over the other creditors of the
Company or any Guarantor with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or any Guarantor or others.


 


(9)
No event or condition shall exist that would prevent the Company from making
payments of the principal of, premium, if any, and interest on the


 


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Securities on the date of
such deposit or at any time ending on the 91st day after the date of such
deposit.


 


(10)
The Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent under this
Indenture to either Defeasance or Covenant Defeasance, as the case may be, have
been complied with.


 


SECTION
12.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous Provisions.  Subject to the provisions of the last
paragraph of Section 10.03, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 12.06, the
Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 12.04
in respect of the Outstanding Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 12.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.


 


Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 12.04 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to the Outstanding Securities.


 


SECTION
12.06. Reinstatement.  If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining, or otherwise prohibiting such application,
then the obligations under this Indenture, such Securities and the Guarantees
from which the Company and the Guarantors have been discharged or released
pursuant to Section 12.02 or 12.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to this Section 12.05 with respect
to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or
interest on any such Security following


 


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such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.


 


ARTICLE
XIII


 


Guarantee


 


SECTION
13.01. Guarantee.  Each Guarantor hereby unconditionally and
irrevocably guarantees on a senior subordinated basis, jointly and severally,
to each Holder and to the Trustee and its successors and assigns (a) the
full and prompt payment (within applicable grace periods) of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company
under this Indenture and the Securities and (b) the full and prompt
performance within applicable grace periods of all other obligations of the
Company under this Indenture and the Securities (all the foregoing being hereinafter
collectively called the “Guaranty
Obligations”).  Each Guarantor
further agrees that the Guaranty Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Guarantor, and
that such Guarantor will remain bound under this Article XIII
notwithstanding any extension or renewal of any Guaranty Obligation.


 


To
the extent that any Subsidiary Guarantor shall be required to pay any amounts
on account of the Securities pursuant to a Guarantee in excess of an amount
calculated as the product of (i) the aggregate amount payable by the
Subsidiary Guarantors on account of the Securities pursuant to their respective
Guarantees times (ii) the proportion (expressed as a fraction) that such
Subsidiary Guarantor’s net assets (determined in accordance with GAAP) at the
date enforcement of the Subsidiary Guarantees is sought bears to the aggregate
net assets (determined in accordance with GAAP) of all Subsidiary Guarantors at
such date, then such Subsidiary Guarantor shall be reimbursed by the other
Subsidiary Guarantors for the amount of such excess, pro rata, based upon the
respective net assets (determined in accordance with GAAP) of such other
Subsidiary Guarantors at the date enforcement of the Subsidiary Guarantees is
sought.  This paragraph is intended only
to define the relative rights of Subsidiary Guarantors as among themselves, and
nothing set forth in this paragraph is intended to or shall impair the joint
and several obligations of the Subsidiary Guarantors under their respective
Subsidiary Guarantees.


 


The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under any Guarantee.


 


Each
Guarantor waives presentation to, demand of payment from and protest to the
Company of any of the Guaranty Obligations and also waives notice of protest
for nonpayment.  Each Guarantor waives
notice of any default under the Securities or the Guaranty Obligations.  The obligations of each Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to
assert any claim or


 


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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;
(b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Guaranty Obligations or any
of them; (e) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranty Obligations; or (f) any
change in the ownership of any Guarantor (subject to Section 13.05).


 


Each
Guarantor further agrees that its Guarantee herein constitutes a guaranty of
payment, performance and compliance when due (and not a guaranty of collection)
and waives any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranty Obligations.


 


To
the fullest extent permitted by law, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranty Obligations or
otherwise.  Without limiting the
generality of the foregoing, to the fullest extent permitted by law, the
obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities
or any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Guaranty Obligations, or by any other act or thing or omission or delay to do
any other act or thing which may or might in any manner or to any extent vary
the risk of such Guarantor or would otherwise operate as a discharge of each
Guarantor as a matter of law or equity.


 


Each
Guarantor further agrees that its Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Guaranty Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.


 


In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against each Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest on
any Guaranty Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise (within applicable grace
periods), or to perform or comply with any other Guaranty Obligation (within
applicable grace periods), each Guarantor hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid,
in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid principal amount of such Guaranty Obligations,
(ii) accrued and unpaid interest on such Guaranty Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary Guaranty
Obligations of the Company to the Holders and the Trustee.


 


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Each
Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guaranty Obligations Guaranteed
hereby until payment in full of all Guaranty Obligations.  Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the Guaranty Obligations guaranteed hereby may
be accelerated as provided in Article V for the purposes of its Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guaranty Obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such Guaranty
Obligations as provided in Article V, such Guaranty Obligations (whether
or not due and payable) shall forthwith become due and payable by each
Guarantor for the purposes of this Section.


 


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


 


SECTION 13.02.
Limitation on Liability.  Any term or provision of this Indenture to
the contrary notwithstanding, the maximum aggregate amount of the obligations
guaranteed hereunder by each Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it relates to
such Guarantor, voidable under applicable federal or state law relating to
fraudulent conveyance or fraudulent transfer.


 


SECTION 13.03.
Execution and Delivery of Guarantees.  The Guarantees to be endorsed on the
Securities shall be in the form set forth in Exhibit B.  Each of the Guarantors hereby agrees to
execute its Guarantee in such form, to be endorsed on each Security
authenticated and delivered by the Trustee.


 


Each
Guarantee shall be executed on behalf of each respective Guarantor by any one
of such Guarantor’s Chairman of the Board of Directors, Vice Chairman of the
Board of Directors, President, Chief Financial Officer or Vice Presidents and
any authorized signatories for any Guarantors that are not corporations.  The signature of any or all of these officers
on the Guarantee may be manual or facsimile.


 


A
Guarantee bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of a Guarantor shall bind such Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Security on which such Guarantee
is endorsed or did not hold such offices at the date of such Guarantee.


 


Each
Guarantee shall be registered, transferred, exchanged and cancelled, and shall
be held in definitive or global form, in the same manner and together with the
Security to which it relates, in accordance with Article III.


 


The
delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee endorsed thereon on
behalf of the Guarantors.  Each of the
Guarantors hereby jointly and severally agrees that


 


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its
Guarantee set forth in Section 13.01 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.


 


SECTION 13.04.
Guarantors May Consolidate, Etc.,
on Certain Terms.  Nothing
contained in this Indenture or in any of the Securities or any Guarantee shall
prevent any consolidation or merger of a Guarantor with or into the Company or
a Guarantor or the merger of a wholly owned Restricted Subsidiary of the
Company with and into a Guarantor or shall prevent any sale or conveyance of
the assets of a Guarantor as an entirety or substantially as an entirety or the
Capital Stock of a Guarantor to the Company or a Guarantor.


 


SECTION 13.05.
Release of Guarantors.  The Guarantee of a Subsidiary Guarantor shall
automatically be released from all obligations under its Guarantee endorsed on
the Securities and under this Article XIII without need for any further
act or the execution or delivery or any document: (i) upon the sale or
other disposition (including by way of consolidation or merger) of such
Subsidiary Guarantor other than to the Company or a Restricted Subsidiary and
as permitted by this Indenture, including Section 10.14; (ii) upon
the sale or disposition of all or substantially all of the assets of such
Subsidiary Guarantor other than to the Company or a Restricted Subsidiary and
as permitted by this Indenture, including Section 10.14; (iii) upon
Defeasance or Covenant Defeasance in accordance with Article XII; or (iv) if
the Company properly designates any Restricted Subsidiary that is a Subsidiary
Guarantor as an Unrestricted Subsidiary. 
Upon delivery by the Company to the Trustee of an Officer’s Certificate
to the effect that such transaction was made in accordance with the provisions
hereof, the Trustee shall execute any documents reasonably required in order to
evidence the release of such Guarantor from its obligations under its Guarantee
endorsed on the Securities and under this Article XIII.


 


SECTION 13.06.
Successors and Assigns.  This Article XIII shall be binding upon
each Guarantor and its 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 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.


 


SECTION 13.07.
No Waiver, etc.  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 XIII 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 XIII at law, in equity,
by statute or otherwise.


 


SECTION 13.08.
Modification, etc.  No modification, amendment or waiver of any
provision of this Article, nor the consent to any departure by a Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed


 


96

















 


by the Trustee, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.  No notice
to or demand on a Guarantor in any case shall entitle such Guarantor or any
other guarantor to any other or further notice or demand in the same, similar
or other circumstances.


 


SECTION 13.09.
Subordination of Guarantee.  The obligations of each Guarantor pursuant to
its Guarantee and this Article XIII shall be (a) junior and
subordinated in right of payment to the prior payment in full in cash of all
Senior Indebtedness of such Guarantor (b) pari
passu in all respects with all
existing and future Senior Subordinated Indebtedness of such Guarantor and (c) senior
in right of payment to all existing and future Subordinated Indebtedness of
such Guarantor, in each case on the same basis as the Securities and the
obligations of the Company hereunder are junior and subordinated to all Senior
Indebtedness, pari  passu with all Senior Subordinated
Indebtedness and senior in right of payment to all Subordinated
Indebtedness.  For the purposes of this Section 13.09,
Article XIV shall apply to the obligations of each Guarantor under its
Guarantee, this Article XIII, and the other provisions of this Indenture
as if references therein to the Company, the Securities, Senior Indebtedness,
Subordinated Indebtedness and Designated Senior Indebtedness were references to
such Guarantor, such Guarantor’s Guarantee, Senior Indebtedness of such
Guarantor, Subordinated Indebtedness of such Guarantor and Designated Senior
Indebtedness of such Guarantor, respectively.


 


ARTICLE XIV


 


Subordination


 


SECTION 14.01.
Agreement to Subordinate, Securities
Subordinate to Senior Indebtedness and Senior to Subordinated Indebtedness.  The Company covenants and agrees, and each
Holder of a Security, by his acceptance thereof, likewise covenants and agrees
that, to the extent and in the manner hereinafter set forth in this
Article XIV, the Indebtedness evidenced by the Securities is hereby
expressly made subordinate in right of payment to the prior payment in full in
cash of all Senior Indebtedness and senior in right of payment to all existing
and future Subordinated Indebtedness of the Company.  The Securities shall in all respects rank pari  passu
with all other Senior Subordinated Indebtedness of the Company.


 


SECTION 14.02.
Payment Over of Proceeds Upon Dissolution, Etc.  In the event of any insolvency or bankruptcy
case or proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relating to the Company or
its assets, or any liquidation, dissolution or other winding-up of the Company,
whether voluntary or involuntary, or any assignment for the benefit of
creditors or other marshalling of assets or liabilities of the Company, all
Senior Indebtedness (including, in the case of Designated Senior Indebtedness,
any interest accruing subsequent to the filing of a petition for bankruptcy
(regardless of whether such interest is an allowed claim in the bankruptcy
proceeding)) must be paid in full in cash before any payment (other than
payments in the form of Qualified Equity Interests or


 


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other securities the
payment of which is subordinated, at least to the same extent as the
Securities, to the payment of all Senior Indebtedness which may at the time be
outstanding) is made on account of the principal of, premium, if any, or
interest on the Securities.


 


SECTION 14.03.
No Payment When Designated Senior
Indebtedness is in Default. 
During the continuance of any default in the payment of principal, or
premium, if any, or interest on any Senior Indebtedness, when the same becomes
due, and after receipt by the Trustee and the Company from representatives of
holders of such Senior Indebtedness of written notice of such default, no direct
or indirect payment by or on behalf of the Company of any kind or character
(other than Qualified Equity Interests or other securities the payment of which
is subordinated, at least to the same extent as the Securities, to the payment
of all Senior Indebtedness which may at the time be outstanding) may be made on
account of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the Securities unless and until such
default has been cured or waived or has ceased to exist or such Senior
Indebtedness shall have been discharged or paid in full in cash, after which
the Company shall resume making any and all required payments in respect of the
Securities, including any missed payments.


 


In
addition, during the continuance of any other default with respect to any
Designated Senior Indebtedness that permits, or would permit with the passage
of time or the giving of notice or both, the maturity thereof to be accelerated
(a “Non-payment Default”) and upon the
earlier to occur of (a) receipt by the Trustee and the Company from the
representatives of holders of such Designated Senior Indebtedness of a written
notice of such Non-payment Default or (b) if such Non-payment Default
results from the acceleration of the maturity of the Securities, the date of
such acceleration, no payment of any kind or character (excluding Qualified
Equity Interests or subordinated securities) may be made by the Company on
account of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the Securities for the period specified
below (the “Payment Blockage Period”).


 


The
Payment Blockage Period shall commence upon the receipt of notice of a
Non-payment Default by the Trustee and the Company from the representatives of
holders of Designated Senior Indebtedness or the date of the acceleration
referred to in clause (b) of the preceding paragraph, as the case may be,
and shall end on the earliest to occur of the following events: (i) 179
days have elapsed since the receipt of such notice or the date of the
acceleration referred to in clause (b) of the preceding paragraph (provided the maturity of such Designated Senior Indebtedness
shall not theretofore have been accelerated), (ii) such default is cured
or waived or ceases to exist or such Designated Senior Indebtedness is
discharged or paid in full in cash, or (iii) such Payment Blockage Period
shall have been terminated by written notice to the Company or the Trustee from
the representatives of holders of Designated Senior Indebtedness initiating
such Payment Blockage Period, after which the Company shall promptly resume
making any and all required payments in respect of the Securities, including
any missed payments. Only one Payment Blockage Period with respect to the
Securities may be commenced within any 360 consecutive day period. No
Non-payment Default with


 


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respect
to Designated Senior Indebtedness that existed or was continuing on the date of
the commencement of any Payment Blockage Period shall be, or can be, made the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 360 consecutive days, unless such default has been cured or
waived for a period of not less than 90 consecutive days. In no event shall a
Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the notice or the date of the acceleration initiating
such Payment Blockage Period and there must be a 180 consecutive day period in
any 360 day period during which no Payment Blockage Period is in effect.


 


SECTION 14.04.
Subrogation to Rights of Holders of Senior
Indebtedness.  Subject to the
payment in full in cash of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XIV to the rights of the holders of such Senior Indebtedness
to receive payments and distributions of cash, property and securities
applicable to the Senior Indebtedness until the principal of, premium, if any,
and interest on the Securities shall be paid in full.  For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
for the benefit of the Holders of the Securities would be entitled except for
the provisions of this Article XIV, and no payments over pursuant to the
provisions of this Article XIV to the holders of Senior Indebtedness by
Holders of the Securities, shall, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.


 


SECTION 14.05.
Provisions Solely to Define Relative Rights.  The provisions of this Article XIV are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior
Indebtedness on the other hand.  Nothing
contained in this Article XIV or elsewhere in this Indenture or in the
Securities is intended to or shall: 
(a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any and interest on the Securities as
and when the same shall become due and payable in accordance with their terms;
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Securities
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this
Article XIV of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.


 


SECTION 14.06.
Trustee to Effectuate Subordination.  Each Holder of a Security by its acceptance
thereof authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided


 


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in this Article XIV
and appoints the Trustee its attorney-in-fact for any and all such purposes.


 


SECTION 14.07.
No Waiver of Subordination Provisions.  No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.


 


Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article XIV or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.


 


SECTION 14.08.
Notice to Trustee.  The Company shall give prompt written notice
to the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities.  Notwithstanding the provisions of this
Article XIV or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Indebtedness or from any trustee
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.01, shall be entitled in all
respects to assume that no such facts exist; provided,
however, that if a Responsible Officer of the Trustee shall not have
received at its Corporate Trust Office the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment in cash of the principal of, premium, if any or interest on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date. 
Subject to the provisions of Section 6.01, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or agent on behalf of such holder) to establish that such


 


100

















 


notice has been given by
a holder of Senior Indebtedness (or a trustee or agent on behalf of any such
holder).  In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person  to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such Person pursuant to the terms of this Indenture pending judicial
determination as to the rights of such Person to receive such payment.


 


SECTION 14.09.
Reliance on Judicial Order or Certificate of
Liquidating Agent.  Upon any
payment or distribution of assets of the Company referred to in this
Article XIV, the Trustee, subject to the provisions of Section 6.01,
and the Holders of the Securities shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIV.


 


SECTION 14.10.
Trustee Not Fiduciary for Holders of Senior
Indebtedness.  The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this
Article XIV or otherwise.


 


With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.


 


SECTION 14.11.
Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee’s Rights.  The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XIV with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.


 


Nothing
in this Article XIV shall apply to claims of, or payments to, the Trustee
or its agent or counsel under or pursuant to Section 6.07.


 


101

















 


SECTION 14.12.
Article Applicable to Paying Agents.  In case at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee” as used in this Article XIV shall in such
case (unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article XIV in
addition to or in place of the Trustee; provided,
however, that Section 14.11 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.


 


102

















 


This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.


 


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


 


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UNITED
  RENTALS (NORTH AMERICA), INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and

  Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  UNITED
  RENTALS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and

  Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  INFOMANAGER, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  



 


103

















 


	
   

  	
  UNITED
  RENTALS HIGHWAY TECHNOLOGIES GULF, LLC, BY UNITED RENTALS (NORTH AMERICA),
  INC., ITS SOLE INITIAL MEMBER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer

  



 


 


	
   

  	
  UNITED
  RENTALS NORTHWEST, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


 


	
   

  	
  UNITED
  RENTALS REALTY, LLC, BY UNITED RENTALS (NORTH AMERICA), INC., ITS MANAGING
  MEMBER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:
  

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:
  

  	
  Executive
  Vice President and

  
	
   

  	
   

  	
   

  	
  Chief
  Financial Officer

  



 


 


	
   

  	
  WYNNE
  SYSTEMS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  William B. Plummer

  
	
   

  	
   

  	
  Name:
  

  	
  William
  B. Plummer

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  



 


 


	
   

  	
  THE
  BANK OF NEW YORK MELLON, AS TRUSTEE,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Timothy W. Casey

  
	
   

  	
   

  	
  Name:
  

  	
  Timothy
  W. Casey

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Associate

  



 


104
















 


SCHEDULE A


 


	
  Guarantor

  	
   

  	
  Place of Formation

  
	
   

  	
   

  	
   

  
	
  InfoManager, Inc.

  	
   

  	
  Texas

  
	
   

  	
   

  	
   

  
	
  United
  Rentals Highway Technologies Gulf, LLC

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  United
  Rentals Northwest, Inc.

  	
   

  	
  Oregon

  
	
   

  	
   

  	
   

  
	
  United
  Rentals Realty, LLC

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Wynne
  Systems, Inc.

  	
   

  	
  California

  



 


105

















 


APPENDIX


 


PROVISIONS RELATING TO THE SECURITIES


 


1.                                      Definitions


 


1.1          Definitions


 


For
the purposes of this Appendix the following terms shall have the meanings
indicated below:


 


“Definitive
Security” means a certificated Security that does not include the Global
Securities Legend.


 


“Global
Securities Legend” means the legend set forth under that caption in Exhibit A
to this Indenture.


 


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


 


“Underwriters”
means (i) with respect to the Securities issued on the Issue Date, the
underwriters listed in the Underwriting Agreement and (ii) with respect to
each issuance of Additional Securities, the Persons purchasing such Additional
Securities under the related underwriting agreement.


 


“Underwriting
Agreement” means (a) the Underwriting Agreement, dated October 21,
2010, among the Company, the Guarantors and Morgan Stanley & Co.
Incorporated, Banc of America Securities LLC and Wells Fargo Securities, LLC,
as representatives of the Underwriters, and (b) any other similar
Underwriting Agreement relating to Additional Securities.


 


1.2          Other Definitions


 


	
  Term:

  	
   

  	
  Defined
  in Section:

  
	
   

  	
   

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  2.1(c)

  
	
  “Global
  Security”

  	
   

  	
  2.1(b)

  



 


2.                                      The Securities


 


2.1          Form and Dating.


 


(a)           The Securities issued on the date
hereof will be offered and sold by the Company pursuant to an Underwriting Agreement.  Additional Securities offered after the date
hereof may be offered and sold by the Company from time to time pursuant to one
or more Underwriting Agreements in accordance with applicable law.


 


(b)           Global Securities.  The Securities shall be issued initially in
the form of one or more global securities in definitive, fully registered form
(each, a “Global Security”) without interest coupons and bearing the Global
Securities Legend, which shall be deposited on behalf of 


 


106

















 


the
Holders of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in
this Indenture.  The aggregate principal
amount of any Global Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depositary or its
nominee and on the schedules thereto as hereinafter provided.


 


(c)           Book-Entry Provisions.  This Section 2.1(c) shall apply
only to a Global Security deposited with or on behalf of the Depositary.


 


The
Company shall execute and the Trustee shall, in accordance with this Section 2.1(c) and
Section 2.2 and pursuant to an order of the Company signed by one officer
of the Company, authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for
such Global Security or Global Securities or the nominee of such Depositary and
(ii) shall be delivered by the Trustee to such Depositary or pursuant to
such Depositary’s instructions or held by the Trustee as Securities Custodian.


 


Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf
by the Depositary or by the Trustee as Securities Custodian or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.


 


(c)           Definitive Securities.  Except as provided in Section 2.3 or
2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.


 


2.2          Authentication.  The Trustee shall authenticate and make
available for delivery upon a written order of the Company signed by one
Officer of the Company (a) Securities for original issue on the date
hereof in an aggregate principal amount of $750,000,000 and (b) subject to
the terms of this Indenture, Additional Securities in an unlimited aggregate
principal amount.  Such order shall
specify the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated and, in the case of an
issuance of Additional Securities pursuant to Section 3.13 after the Issue
Date, shall certify that such issuance is in compliance with
Section 10.08.


 


2.3          Transfer and Exchange.


 


(a)           Transfer and Exchange of
Definitive Securities.  When Definitive
Securities are presented to the Security Registrar with a request:


 


(i)            to register the
transfer of such Definitive Securities; or


 


107

















 


(ii)           to exchange such
Definitive Securities for an equal principal amount of Definitive Securities of
other authorized denominations,


 


the
Security Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided, however, that
the Definitive Securities surrendered for transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.


 


(b)           Restrictions on Transfer of a
Definitive Security for a Beneficial Interest in a Global Security.  A Definitive Security may not be exchanged
for a beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below.  Upon
receipt by the Trustee of a Definitive Security, duly endorsed or accompanied
by a written instrument of transfer in form reasonably satisfactory to the
Company and the Security Registrar, together with written instructions directing
the Trustee to make, or to direct the Securities Custodian to make, an
adjustment on its books and records with respect to the applicable Global
Security to reflect an increase in the aggregate principal amount of the
Securities represented by such Global Security, such instructions to contain
information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by such Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in such Global Security
equal to the principal amount of the Definitive Security so canceled.  If no applicable Global Securities are then
outstanding and the applicable Global Security has not been previously
exchanged for certificated securities pursuant to Section 2.4, the Company
shall issue and the Trustee shall authenticate, upon written order of the
Company in the form of an Officer’s Certificate, a new applicable Global
Security in the appropriate principal amount.


 


(c)           Transfer and Exchange of Global
Securities.


 


(i)            The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor.  A transferor of a
beneficial interest in a Global Security shall deliver a written order given in
accordance with the Depositary’s procedures containing information regarding
the participant account of the Depositary to be credited with a beneficial
interest in such Global Security or another Global Security and such account
shall be credited in accordance with such order with a beneficial interest in
the applicable Global Security and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial interest in the
Global Security being transferred.


 


(ii)           If the proposed
transfer is a transfer of a beneficial interest in one Global Security to a
beneficial interest in another Global Security, the Security Registrar shall
reflect on its books and records the date and an increase in the principal amount
of the Global Security to which such interest is being transferred in an amount
equal to the 


 


108

















 


principal
amount of the interest to be so transferred, and the Security Registrar shall
reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Security from which such interest is being
transferred.


 


(iii)          Notwithstanding any
other provisions of this Appendix (other than the provisions set forth in Section 2.4),
a Global Security may not be transferred as a whole except 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.


 


(d)           Cancelation or Adjustment of
Global Security.  At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee.  At any time prior to such cancelation, if any
beneficial interest in a Global Security is exchanged for Definitive
Securities, transferred in exchange for an interest in another Global Security,
redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by
the Trustee or the Securities Custodian, to reflect such reduction.


 


(e)           Obligations with Respect to
Transfers and Exchanges of Securities.


 


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


 


(ii)           No service charge
shall be made for any registration of transfer or exchange of Securities except
as provided in Section 3.06 of this Indenture, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.08
of this Indenture or in accordance with any Change of Control Offer pursuant to
Section 10.13 or any Asset Sale Offer pursuant to Section 10.14 of
this Indenture, and in any such case not involving any transfer.


 


(iii)          Prior to the due
presentation for registration of transfer of any Security, the Company, the
Trustee, the Paying Agent or the Security 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 of and interest 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 Security Registrar shall be affected by notice to the contrary.


 


109

















 


(iv)          All Securities
issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same debt and shall be entitled to the same benefits under
this Indenture as the Securities surrendered upon such transfer or exchange.


 


(f)            No Obligation of the Trustee.


 


(i)            The Trustee shall
have no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in the Depositary or any other Person
with respect to the accuracy of the records of the Depositary or its nominee or
of any participant or member thereof, with respect to any ownership interest in
the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption or repurchase) or the payment of any
amount, under or with respect to such Securities.  All notices and communications to be given to
the Holders and all payments to be made to Holders under the Securities shall
be given or made only to the registered Holders (which shall be the Depositary
or its nominee in the case of a Global Security).  The rights of beneficial owners in any Global
Security shall be exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary.  The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect
to its members, participants and any beneficial owners.


 


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


 


2.4          Definitive Securities


 


(a)           A Global Security deposited with the
Depositary or with the Trustee as Securities Custodian pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies
the Company that it is unwilling or unable to continue as a Depositary for such
Global Security or if at any time the Depositary ceases to be a “clearing
agency” registered under the Exchange Act, and, in either case, a successor
depositary is not appointed by the Company within 90 days of such notice or
after the Company becomes aware of such cessation, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.


 


(b)           Any Global Security that is
transferable to the beneficial owners thereof pursuant to this Section 2.4
shall be surrendered by the Depositary to the Trustee, to be so transferred, in



 


110

















 


whole
or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global
Security, an equal aggregate principal amount of Definitive Securities of
authorized denominations.  Any portion of
a Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depositary shall direct.


 


(c)           Subject to the provisions of Section 2.4(b),
the registered Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.


 


(d)           In the event of the occurrence of any
of the events specified in Section 2.4(a)(i), (ii) or (iii), the
Company will promptly make available to the Trustee a reasonable supply of
Definitive Securities in fully registered form without interest coupons.


 


111
















 


EXHIBIT A


 


[FORM OF SECURITY]


 


[Global Securities Legend]


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS 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.


 


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.


 


112

















 


United Rentals (North America), Inc.


 


8.375% Senior Subordinated Note Due 2020


 


	
  No.

  	
  $

  
	
   

  	
  CUSIP NO.

  



 


United
Rentals (North America), Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the “Company”, which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum listed on the Schedule of Increases or
Decreases in Global Security attached hereto on September 15, 2020, and to
pay interest thereon from October 26, 2010, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on March 15 and September 15 in each year,
commencing March 15, 2011, at the rate of 8.375% per annum, until the
principal hereof is paid or duly provided for; provided, however,
that any principal and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of 8.375% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or duly provided for.  The interest so payable and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the March 1 and
September 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. 
Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of securities not less than
10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.


 


Payment
of the principal of (and premium, if any) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided,
however, that, at the option of
the Company, payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.


 


Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.


 


113

















 


Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.


 


114

















 


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


 


 


	
   

  	
  UNITED
  RENTALS (NORTH AMERICA), INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attest:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
  TRUSTEE’S
  CERTIFICATE OF AUTHENTICATION

  	
   

  
	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  
	
  THE
  BANK OF NEW YORK MELLON, AS TRUSTEE

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
				



 


115

















 


Form of Reverse of Security


 


This
Security is one of a duly authorized issue of Securities of the Company
designated as 8.375% Senior Subordinated Notes Due 2020 (herein called the “Securities”),
limited in aggregate principal amount on the Issue Date to $750,000,000 issued
and to be issued under an Indenture, dated as of October 26, 2010 (herein
called the “Indenture,” which term shall have the meaning assigned to it in
such instrument), among the Company, the guarantors named therein and The Bank
of New York Mellon, as Trustee (herein called the “Trustee,” which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. 
The Company shall be entitled, subject to its compliance with
Section 10.08 of the Indenture, to issue Additional Securities pursuant to
Section 3.13 of the Indenture.  The
Securities include the Securities issued on the Issue Date and any Additional
Securities.  The Securities issued on the
Issue Date and any Additional Securities are treated as a single class of
securities under the Indenture.


 


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 of 1939 (15
U.S.C. 7aaa - 77bbbb (the “TIA”), as in effect on the date of the
Indenture.  Notwithstanding anything to
the contrary herein, the Securities are subject to all such terms, and Holders
of Securities are referred to the Indenture and the TIA for a statement of such
terms.


 


Except
as set forth below, the Company will not be entitled to redeem this Security at
its option prior to September 15, 2015.


 


This
Security is redeemable at the option of the Company, in whole or in part, at
any time on or after September 15, 2015, at the Redemption Prices
(expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest, if any, thereon to the Redemption Date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), if redeemed during the twelve month
period beginning September 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Redemption

  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2015

  	
   

  	
  104.188

  	
  %

  
	
  2016

  	
   

  	
  102.792

  	
  %

  
	
  2017

  	
   

  	
  101.396

  	
  %

  
	
  2018 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition, at any time, or from time to time, on or prior to September 15,
2013, the Company may, at its option, use the net cash proceeds of one or more
Public Equity Offerings to redeem up to an aggregate of 35% of the principal
amount of the 


 


116

















 


Securities
(which includes Additional Securities, if any), at a redemption price equal to
108.375% of the principal amount thereof plus accrued and unpaid interest, if
any, thereon to the Redemption Date; provided,
however, that at least 65% of the aggregate principal amount of
Securities (which includes Additional Securities, if any) remains outstanding
immediately after the occurrence of such redemption. In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, the
Company shall send a redemption notice to the Trustee not later than
90 days after the consummation of any such Public Equity Offering.


 


Prior
to September 15, 2015, the Company may at its option redeem the
Securities, in whole or in part, at a redemption price equal to 100% of the
principal amount of the Securities plus the Applicable Premium as of, and
accrued and unpaid interest to, the redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the relevant
interest payment date).


 


“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 (if no maturity is within three
months before or after September 15, 2015, 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 0.50%.


 


“Applicable
Premium” means, with respect to any redemption date, the greater of (i) 1.00%
of the principal amount of such Securities and (ii) the excess of (A) the
present value at such redemption date of (1) the redemption price of such
Securities on September 15, 2015 (as set forth above exclusive of any
accrued interest) plus (2) all required remaining scheduled interest
payments due on such Securities through September 15, 2015 (but excluding
accrued and unpaid interest to the redemption date), computed using a discount
rate equal to the Adjusted Treasury Rate, over (B) the principal amount of
such Securities on such redemption date.


 


“Comparable
Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the
Securities from the redemption date to September 15, 2015, that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing


 


117

















 


new
issues of corporate debt securities of a maturity most nearly equal to September 15,
2015.


 


“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 given to by the Trustee, Reference Treasury Dealer Quotations for
such redemption date.


 


“Quotation
Agent” means the Reference Treasury Dealer selected by the Company.


 


“Reference
Treasury Dealer” means three nationally recognized investment banking firms
selected by the Company that are primary U.S. Government securities dealers.


 


“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, 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 such redemption date.


 


The
Securities are not subject to any sinking fund.


 


The
Indenture provides that the Company is obligated (a) upon the occurrence
of a Change in Control to make an offer to purchase all outstanding Securities
at a purchase price equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, thereon to the date of purchase and (b) to
make an offer to purchase Securities with a portion of the net cash proceeds of
certain sales or other dispositions of assets (not applied as specified in the
Indenture within the periods set forth therein) at a purchase price equal to
100% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase.


 


In
the event of redemption or purchase of this Security in part only pursuant to a
Change of Control Offer or an Asset Sale Offer, a new Security or Securities
for the unredeemed or unpurchased portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.


 


The
Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.


 


If
an Event of Default shall occur and be continuing, there may be declared due
and payable the principal of, premium, if any, and accrued and unpaid interest,
if any, on all of the outstanding Securities, in the manner and with the effect
provided in the Indenture.


 


118

















 


The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding.  The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in principal amount of the Securities at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity reasonably satisfactory to the Trustee and the Trustee shall
not have received from the Holders of a majority in principal amount of
Securities at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding for 45 days after
receipt of such notice, request and offer of indemnity.  The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein (or, in the case of redemption, on or after the Redemption Date or, in
the case of any purchase of this Security required to be made pursuant to a
Change of Control Offer or an Asset Sale Offer, on or after the relevant Purchase
Date).


 


No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.


 


As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon surrender
of this Security for registration of transfer at the office or agency of the
Company in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.


 


119

















 


This
Security is issuable only in registered form without coupons in denominations
of $1,000 and any integral multiple thereof. 
As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.


 


No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.


 


Prior
to due presentment of this Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.


 


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


 


The
obligations of the Company under the Indenture and this Security are expressly
subordinated to all Senior Indebtedness and senior in right of payment to all
Subordinated Indebtedness, in each case to the extent set forth in
Article XIV of the Indenture, and reference is hereby made to such
Indenture for the precise terms of such subordination.


 


As
provided in the Indenture and subject to certain limitations therein set forth,
the obligations of the Company under the Indenture and this Security are
Guaranteed pursuant to Guarantees endorsed hereon as provided in the Indenture.  Each Holder, by holding this Security, agrees
to all of the terms and provisions of said Guarantees.  The Indenture provides that each Guarantor
shall be released from its Guarantee upon compliance with certain conditions.


 


All
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.


 


The
Indenture and this Security shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflicts of laws
principles thereof.


 


120
















 


ASSIGNMENT FORM


 


To
assign this Security, fill in the form below:


 


I
or we assign and transfer this Security to


 


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


 


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


 


and
irrevocably
appoint                           agent
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 other side of this Security.


 


121

















 


[TO BE ATTACHED TO GLOBAL SECURITIES]


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY


 


The
initial principal amount of this Global Security is
$              .  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

  signatory of Trustee or

  Securities Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


122

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Security purchased in its entirety by the Company
pursuant to Section 10.13 or 10.14 of the Indenture, check the applicable
box:


 


Section 10.13  o


 


Section 10.14  o


 


If
you want to elect to have only a part of the principal amount of this Security
purchased by the Company pursuant to Section 10.13 or 10.14 of the
Indenture, state the portion of such amount: 
$


 


 


	
  Dated:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  



 


 


Signature
Guarantee:


 


(Signature
must be guaranteed by a financial institution that is a member of the
Securities Transfer Agent Medallion Program (“STAMP”), the Stock Exchange
Medallion Program (“SEMP”), the New York Stock Exchange, Inc. Medallion
Signature Program (“MSP”) or such other signature guarantee program as may be
determined by the Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934,
as amended.)


 


123

















 


EXHIBIT B


 


[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]


 


GUARANTEE


 


Each
of the undersigned guarantors (each a “Guarantor,” or together, the “Guarantors”),
which term includes any successor under the Indenture (the “Indenture”)
referred to in the Security upon which this notation is endorsed), hereby
unconditionally and irrevocably guarantees on a senior subordinated basis,
jointly and severally with each other Guarantor of the Securities, to each
Holder and to the Trustee and its successors and assigns (a) the full and
prompt payment (within applicable grace periods) of principal of and interest
on the Securities when due, whether at maturity, by acceleration, by redemption
or otherwise, and all other monetary obligations of the Company under the
Indenture and the Securities and (b) the full and prompt performance
within applicable grace periods of all other obligations of the Company under
the Indenture and the Securities, subject to certain limitations set forth in
the Indenture (all the foregoing being hereinafter collectively called the “Guarantee
Obligations”).  The Guarantor further
agrees that the Guarantee Obligations may be extended or renewed, in whole or
in part, without notice or further assent from such Guarantor, and that such
Guarantor will remain bound under Article XIII of the Indenture
notwithstanding any extension or renewal of any Guarantee Obligation.  Capitalized terms used herein have the
meanings assigned to them in the Indenture unless otherwise indicated.


 


Subject
to the terms of the Indenture, this Guarantee shall be binding upon the
Guarantor and its 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 by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions hereof.


 


This
Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the
signature of one of its authorized signatories.


 


Notwithstanding
any other provision of the Indenture or this Guarantee, under the Indenture and
this Guarantee the maximum aggregate amount of the obligations guaranteed by
the Guarantor shall not exceed the maximum amount that can be guaranteed
without rendering the Indenture or this Guarantee, as it relates to such
Guarantor, voidable under applicable federal or state law relating to
fraudulent conveyance or fraudulent transfer. 
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of laws provisions
thereof.


 


[Signature page follows]


 

















 


	
   

  	
  UNITED
  RENTALS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 


 


	
   

  	
  INFOMANAGER,
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 


 


	
   

  	
  UNITED
  RENTALS HIGHWAY TECHNOLOGIES GULF, LLC, BY UNITED RENTALS (NORTH
  AMERICA), INC., ITS SOLE INITIAL MEMBER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 


 


	
   

  	
  UNITED
  RENTALS NORTHWEST, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 


 


	
   

  	
  UNITED
  RENTALS REALTY, LLC, BY UNITED RENTALS (NORTH AMERICA), INC. ITS
  MANAGING MEMBER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 


2

















 


	
   

  	
  WYNNE
  SYSTEMS, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 


3

















 


SCHEDULE A


 


	
  Guarantor

  	
   

  	
  Place of Formation

  
	
   

  	
   

  	
   

  
	
  InfoManager, Inc.

  	
   

  	
  Texas

  
	
   

  	
   

  	
   

  
	
  United
  Rentals Highway Technologies Gulf, LLC

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  United
  Rentals Northwest, Inc.

  	
   

  	
  Oregon

  
	
   

  	
   

  	
   

  
	
  United
  Rentals Realty, LLC

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Wynne
  Systems, Inc.

  	
   

  	
  California

  



 


4