Exhibit 4.1




 





 


THE MANITOWOC COMPANY, INC.,

as Issuer,


 


the Guarantors named herein,

as Guarantors


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee








 


Second Supplemental Indenture


 


Dated as of October 18, 2010


 






 


 8.50% Senior Notes due 2020




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE ONE

  
	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
  SECTION 1.02.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  28

  
	
  SECTION 1.03.

  	
  Rules of Construction

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  
	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  The Notes

  	
  29

  
	
  SECTION 2.02.

  	
  Legends

  	
  30

  
	
  SECTION 2.03.

  	
  Execution and Authentication

  	
  31

  
	
  SECTION 2.04.

  	
  Transfer and Exchange

  	
  31

  
	
  SECTION 2.05.

  	
  Defaulted Interest

  	
  34

  
	
  SECTION 2.06.

  	
  Issuance of Additional Notes

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  
	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Optional Redemption

  	
  35

  
	
  SECTION 3.02.

  	
  [reserved]

  	
  36

  
	
  SECTION 3.03.

  	
  Selection of Notes to Be Redeemed

  	
  36

  
	
  SECTION 3.04.

  	
  Notice of Redemption

  	
  36

  
	
  SECTION 3.05.

  	
  Effect of Notice of Redemption

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Notes

  	
  37

  
	
  SECTION 4.02.

  	
  Maintenance of Office or Agency

  	
  38

  
	
  SECTION 4.03.

  	
  Limitation on Incurrence of Additional Indebtedness

  	
  38

  
	
  SECTION 4.04.

  	
  RESERVED

  	
  38

  
	
  SECTION 4.05.

  	
  Limitation on Restricted Payments

  	
  38

  
	
  SECTION 4.06.

  	
  Limitation on Dividend and Other Payment Restrictions
  Affecting Restricted Subsidiaries

  	
  41

  
	
  SECTION 4.07.

  	
  Limitation on Preferred Stock of Restricted Subsidiaries

  	
  43

  



 


i

















 


	
  SECTION 4.08.

  	
  Limitation on Transactions with Affiliates

  	
  43

  
	
  SECTION 4.09.

  	
  Limitation on Liens

  	
  44

  
	
  SECTION 4.10.

  	
  Limitation on Asset Sales

  	
  45

  
	
  SECTION 4.11.

  	
  Repurchase of Notes upon a Change of Control

  	
  49

  
	
  SECTION 4.12.

  	
  Additional Subsidiary Guarantees

  	
  50

  
	
  SECTION 4.13.

  	
  Existence

  	
  50

  
	
  SECTION 4.14.

  	
  Payment of Taxes and Other Claims

  	
  50

  
	
  SECTION 4.15.

  	
  Reports to Holders

  	
  51

  
	
  SECTION 4.16.

  	
  Conduct of Business

  	
  51

  
	
  SECTION 4.17.

  	
  Waiver of Stay, Extension or Usury Laws

  	
  52

  
	
  SECTION 4.18.

  	
  Compliance Certificates

  	
  52

  
	
  SECTION 4.19.

  	
  Maintenance of Properties

  	
  52

  
	
  SECTION 4.20.

  	
  Insurance

  	
  53

  
	
  SECTION 4.21.

  	
  Changes in Covenants when Notes Rated Investment Grade

  	
  53

  
	
   

  
	
  ARTICLE FIVE

  
	
   

  
	
  SUCCESSOR CORPORATION

  
	
   

  
	
  SECTION 5.01.

  	
  Merger, Consolidation and Sale of Assets

  	
  54

  
	
  SECTION 5.02.

  	
  Successor Substituted

  	
  56

  
	
   

  
	
  ARTICLE SIX

  
	
   

  
	
  DEFAULT AND REMEDIES

  
	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
  56

  
	
  SECTION 6.02.

  	
  Notice of Defaults

  	
  59

  
	
  SECTION 6.03.

  	
  Other Remedies

  	
  59

  
	
  SECTION 6.04.

  	
  Waiver of Past Defaults

  	
  59

  
	
  SECTION 6.05.

  	
  Control by Majority

  	
  59

  
	
  SECTION 6.06.

  	
  Limitation on Suits

  	
  59

  
	
  SECTION 6.07.

  	
  Rights of Holders to Receive Payment

  	
  60

  
	
  SECTION 6.08.

  	
  Collection Suit by Trustee

  	
  60

  
	
  SECTION 6.09.

  	
  Trustee May File Proofs of Claim

  	
  61

  
	
  SECTION 6.10.

  	
  Priorities

  	
  61

  
	
  SECTION 6.11.

  	
  Undertaking for Costs

  	
  61

  
	
  SECTION 6.12.

  	
  Restoration of Rights and Remedies

  	
  62

  
	
  SECTION 6.13.

  	
  Rights and Remedies Cumulative

  	
  62

  
	
  SECTION 6.14.

  	
  Delay or Omission Not Waiver

  	
  62

  
	
   

  
	
  ARTICLE SEVEN

  
	
   

  
	
  RESERVED

  



 


ii

















 


	
  ARTICLE EIGHT

  
	
   

  
	
  DISCHARGE OF INDENTURE

  
	
   

  
	
  SECTION 8.01.

  	
  Termination of Company’s Obligations

  	
  62

  
	
  SECTION 8.02.

  	
  Defeasance and Discharge of Indenture

  	
  63

  
	
  SECTION 8.03.

  	
  Defeasance of Certain Obligations

  	
  65

  
	
  SECTION 8.04.

  	
  Application of Trust Money

  	
  66

  
	
  SECTION 8.05.

  	
  Repayment to Company

  	
  66

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
  67

  
	
   

  
	
  ARTICLE NINE

  
	
   

  
	
  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  
	
  SECTION 9.01.

  	
  Without Consent of Holders

  	
  67

  
	
  SECTION 9.02.

  	
  With Consent of Holders

  	
  68

  
	
  SECTION 9.03.

  	
  Revocation and Effect of Consent

  	
  69

  
	
  SECTION 9.04.

  	
  Notation on or Exchange of Notes

  	
  70

  
	
  SECTION 9.05.

  	
  Trustee to Sign Amendments, Etc.

  	
  70

  
	
  SECTION 9.06.

  	
  Conformity with Trust Indenture Act

  	
  70

  
	
  SECTION 9.07.

  	
  Base Indenture

  	
  70

  
	
   

  
	
  ARTICLE TEN

  
	
   

  
	
  [RESERVED]

  
	
   

  
	
  ARTICLE ELEVEN

  
	
   

  
	
  GUARANTEE OF NOTES

  
	
  SECTION 11.01.

  	
  Guarantee

  	
  70

  
	
  SECTION 11.02.

  	
  Execution and Delivery of Guarantee

  	
  71

  
	
  SECTION 11.03.

  	
  Waiver of Subrogation

  	
  72

  
	
  SECTION 11.04.

  	
  Immediate Payment

  	
  72

  
	
  SECTION 11.05.

  	
  No Set-Off

  	
  72

  
	
  SECTION 11.06.

  	
  Obligations Absolute

  	
  72

  
	
  SECTION 11.07.

  	
  Obligations Continuing

  	
  73

  
	
  SECTION 11.08.

  	
  Obligations Not Reduced

  	
  73

  
	
  SECTION 11.09.

  	
  Obligations Reinstated

  	
  73

  
	
  SECTION 11.10.

  	
  Obligations Not Affected

  	
  73

  
	
  SECTION 11.11.

  	
  Waiver

  	
  74

  
	
  SECTION 11.12.

  	
  No Obligation to Take Action Against Company

  	
  74

  
	
  SECTION 11.13.

  	
  Default and Enforcement

  	
  75

  
	
  SECTION 11.14.

  	
  Costs and Expenses

  	
  75

  



 


iii

















 


	
  SECTION 11.15.

  	
  No Merger or Waiver; Cumulative Remedies

  	
  75

  
	
  SECTION 11.16.

  	
  Survival of Obligations

  	
  75

  
	
  SECTION 11.17.

  	
  Guarantee in Addition to Other Obligations

  	
  75

  
	
  SECTION 11.18.

  	
  Successors and Assigns

  	
  76

  
	
  SECTION 11.19.

  	
  Limitation of Guarantor’s Liability

  	
  76

  
	
  SECTION 11.20.

  	
  Release of Guarantee

  	
  76

  
	
   

  
	
  ARTICLE TWELVE

  
	
   

  
	
  RESERVED

  
	
   

  
	
  ARTICLE THIRTEEN

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  
	
  SECTION 13.01.

  	
  Payment Date Other Than a Business Day

  	
  76

  
	
  SECTION 13.02.

  	
  Governing Law

  	
  77

  
	
  SECTION 13.03.

  	
  No Adverse Interpretation of Other Agreements

  	
  77

  
	
  SECTION 13.04.

  	
  No Recourse Against Others

  	
  77

  
	
  SECTION 13.05.

  	
  Successors

  	
  77

  
	
  SECTION 13.06.

  	
  Duplicate Originals

  	
  77

  
	
  SECTION 13.07.

  	
  Separability

  	
  78

  
	
  SECTION 13.08.

  	
  Table of Contents, Headings, Etc.

  	
  78

  
	
  SECTION 13.09.

  	
  Waiver of Jury Trial

  	
  78

  
	
  SECTION 13.10.

  	
  Unclaimed Money; Prescription

  	
  78

  
	
  SECTION 13.11.

  	
  Force Majeure

  	
  78

  
	
  SECTION 13.12.

  	
  U.S.A. Patriot Act

  	
  78

  



 


iv

















 


	
  EXHIBIT A

  	
  -

  	
   

  	
  Form of
  Note

  
	
  EXHIBIT B

  	
  -

  	
   

  	
  Form of
  Guarantee

  



 


v

















 


SECOND
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of October 18,
2010 among The Manitowoc Company, Inc., a Wisconsin corporation, the
Guarantors (as defined herein) and Wells Fargo Bank, National Association, as
Trustee.


 


WHEREAS,
the Company and the Trustee have entered into a Base Indenture, dated as of February 8,
2010 (the “Base Indenture”);


 


WHEREAS,
Sections 2.01, 2.02, 3.01 and 10.01 of the Base Indenture provide, among other
things, that the Company, the Guarantors and the Trustee may enter into a
supplemental indenture to the Base Indenture for, among other things, the
purpose of establishing the designation, form, terms and provisions of Debt
Securities (as defined in the Base Indenture) of any series as permitted by
Sections 2.01, 2.02, 3.01 and 10.01 of the Base Indenture;


 


WHEREAS,
clause (i) of Section 10.01 of the Base Indenture provides that the
Company and the Trustee may enter into a supplemental indenture changing or
eliminating any provision of the Base Indenture; provided,
that any such change shall become effective only when there is no Debt Security
Outstanding (as defined in the Base Indenture) which is entitled to the
benefits of such provisions;


 


WHEREAS,
the Company desires to establish and issue a new series of the Company’s 8.50%
Senior Notes due 2020 pursuant to the Base Indenture, as modified by this
Supplemental Indenture; and


 


WHEREAS,
the Company and the Guarantors desire to enter into a supplemental indenture
pursuant to Sections 2.01, 2.02, 3.01 and 10.01 of the Base Indenture to
establish the designation, form, terms and provisions of the Notes and to make
deletions, modifications and additions to the Base Indenture pertaining to the
Notes, as contemplated by Sections 2.01, 2.02, 3.01 and 10.01 of the Base
Indenture;


 


NOW,
THEREFORE, in consideration of the foregoing, the parties hereto, for the
benefit of each other and for the equal and proportionate benefit of all
Persons who hereafter become Holders (as defined herein) of Notes, hereby enter
into this Supplemental Indenture, which amends, modifies, supplements and
restates (as applicable) the Base Indenture with respect to (and only with
respect to) the Notes, as follows:


 


ARTICLE ONE


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


SECTION 1.01.                                    Definitions.


 


The
terms defined in this Section 1.01 (except as herein otherwise expressly
provided or unless the context of this Supplemental Indenture otherwise
requires) for all purposes of this Supplemental Indenture and of any indenture
supplemental hereto have the respective meanings specified in this Section 1.01.  All other terms used in this Supplemental
Indenture that are defined in the Base Indenture or the Trust Indenture Act, either
directly or by reference therein (except as herein otherwise expressly provided
or unless the context of this 


 

















 


Supplemental
Indenture otherwise requires), have the respective meanings assigned to such
terms in the Base Indenture or the Trust Indenture Act, as the case may be, as
in force at the date of this Supplemental Indenture as originally executed.


 


“Acceleration
Notice” has the meaning given such term in Section 6.01(b).


 


“Acquired
Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary of the Company
or at the time it merges or consolidates with or into the Company or any of its
Restricted Subsidiaries or that is assumed in connection with the acquisition
of assets from such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.


 


“Additional
Notes” means, subject to the Company’s compliance with Section 4.03,
8.50% Senior Notes due 2020, substantially in the form of Exhibit A,
issued from time to time after the Issue Date under the terms of this
Supplemental Indenture (other than issuances pursuant to Sections 3.05, 3.06 or
3.07 of the Base Indenture).


 


“Affiliate
Transaction” has the meaning given such term in Section 4.08.


 


“Agent”
means any Registrar, Paying Agent, Transfer Agent, authenticating agent or
co-Registrar.


 


“amend”
means to amend, supplement, restate, amend and restate or otherwise modify; and
“amendment” shall have a correlative meaning.


 


“Applicable Premium” means, with
respect to a Note at any date of redemption, the greater of (1) 1.0% of
the principal amount of such Note; and (2) the excess of (a) the
present value at such Redemption Date of (i) the redemption price of such
Note on November 1, 2015 (such redemption price being that described in Section 3.01(b))
plus (ii) all required
remaining scheduled interest payments due on such note through November 1,
2015, computed using a discount rate equal to the Treasury Rate (as defined
below) plus 50 basis points; over (b) the principal amount of such Note on
such Redemption Date. Calculation of the Applicable Premium will be made by the
Company or on behalf of the Company by such Person as the Company shall
designate; provided, however, that such calculation, or
determination of the Treasury Rate referenced below, shall not be a duty or
obligation of the Trustee.


 


“Applicable
Procedures” means with respect to any transfer, exchange or other
transaction involving a Global Note or beneficial interest therein, the rules and
procedures of the Depository that may apply to such transfer or exchange.


 


“Asset
Acquisition” means (1) an Investment by the Company or any Restricted
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the
Company or any Restricted Subsidiary of the Company of the assets of any 


 


2

















 


Person
(other than a Restricted Subsidiary of the Company) that constitute all or
substantially all of the assets of such Person or comprises 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 direct or indirect sale, issuance, conveyance, transfer,
lease, assignment or other transfer for value by the Company or any of its
Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company of:  (1) any Capital Stock
of any Restricted Subsidiary of the Company; or (2) any other property or
assets of the Company or any Restricted Subsidiary of the Company other than in
the ordinary course of business; provided, however, that Asset Sales or other dispositions shall not
include:


 


(a)                                  a transaction
or series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $25.0 million;


 


(b)                                 the sale,
lease, conveyance, disposition or other transfer of all or substantially all of
the assets of the Company as permitted under Section 5.01;


 


(c)                                  the sale or
discount, in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof;


 


(d)                                 sales of
accounts receivable and related assets (including contract rights) of the type
specified in the definition of “Qualified Securitization Transaction” to a
Securitization Entity for the fair market value thereof;


 


(e)                                  sales of
accounts receivable and related assets (including contract rights) to the
Factor pursuant to the Factoring Agreement;


 


(f)                                    disposals or
replacements of obsolete equipment in the ordinary course of business;


 


(g)                                 the sale or
other disposition of cash or Cash Equivalents; and


 


(h)                                 any Restricted
Payment permitted by Section 4.05 or that constitutes a Permitted
Investment.


 


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


 


“Board
of Directors” means, as to any Person, the board of directors of such    Person or any duly authorized committee
thereof, or, with respect to any Person that is not a corporation, the Person
or Persons performing corresponding functions.


 


“Board
Resolution” means, with respect to any Person, a copy of a resolution
certified by the Secretary or an Assistant Secretary of such Person to have
been duly adopted by 


 


3

















 


the
Board of Directors of such Person and to be in full force and effect on the
date of such certification, and delivered to the Trustee.


 


“Book-Entry
Interest” means a beneficial interest held by or through a Participant in a
Global Note.


 


“Capitalized
Lease Obligations” means, as to any Person, the obligations of such Person
under a lease that are required to be classified and accounted for as capital
lease obligations under GAAP and, for purposes of this definition, the amount
of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


“Cash
Equivalents” means:


 


(1)                                  marketable
direct obligations issued by, or unconditionally guaranteed by, the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year from the
date of acquisition thereof;


 


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


 


(3)                                  commercial
paper maturing no more than one year from the date of creation thereof and, at
the time of acquisition, having a rating of at least A-1 from S&P or at
least P-1 from Moody’s;


 


(4)                                  certificates of
deposit or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250.0 million;


 


(5)                                  repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (1) above entered into with any bank meeting
the qualifications specified in clause (4) above;


 


(6)                                  Investments in
money market funds that invest substantially all their assets in securities of
the types described in clauses (1) through (5) above; and


 


(7)                                  Foreign Cash
Equivalents.


 


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


 


4
















 


(1)                                  any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company to any
Person or group of related Persons for purposes of Section 13(d) of
the Exchange Act (a “Group”), together with any Affiliates thereof
(whether or not otherwise in compliance with the provisions of this
Supplemental Indenture);


 


(2)                                  the approval by
the holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Supplemental Indenture);


 


(3)                                  any Person or
Group shall become the owner, directly or indirectly, beneficially or of
record, of shares representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding Capital Stock of the Company;
or


 


(4)                                  the replacement
of a majority of the Board of Directors of the Company over a two-year period
from the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by
a vote of at least a majority of the Board of Directors of the Company then
still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved.


 


“Change
of Control Offer” has the meaning given to such term in Section 4.11.


 


“Change
of Control Payment Date” has the meaning given to such term in Section 4.11.


 


“Common
Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person’s common stock, and includes, without limitation,
all series and classes of such common stock.


 


“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum (without
duplication) of:


 


(1)                                  Consolidated
Net Income; and


 


(2)                                  to the extent
Consolidated Net Income has been reduced thereby:


 


(a)                                  all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business);


 


(b)                                 Consolidated
Interest Expense;


 


5

















 


(c)                                  Consolidated
Non-cash Charges less any non-cash items increasing Consolidated Net Income for
such period, all as determined on a consolidated basis for such Person and its
Restricted Subsidiaries in accordance with GAAP, and


 


(d)                                 cash
restructuring charges incurred in the year ended December 31, 2009.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio
of Consolidated EBITDA of such Person during the four full fiscal quarters (the
“Four Quarter Period”) ending prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio for which financial statements are available (the “Transaction Date”)
to Consolidated Fixed Charges of such Person for the Four Quarter Period.  In addition to and without limitation of the
foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated
Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:


 


(1)                                  the incurrence
or repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of
the  Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period; and


 


(2)                                  any asset sales
or Asset Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such Person or
one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma
expense and cost reductions calculated on a basis consistent with Regulation
S-X promulgated under the Exchange Act) attributable to the assets that are the
subject of the Asset Acquisition or asset sale during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if
such asset sale or Asset Acquisition (including the incurrence or assumption of
any such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period.  If such Person or any of its
Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of
such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of
such Person had directly incurred or otherwise assumed such other Indebtedness
that was so guaranteed.


 


Furthermore,
in calculating “Consolidated Fixed Charges” for purposes of determining the
denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage
Ratio”:


 


6

















 


(1)                                  interest on
outstanding Indebtedness determined on a fluctuating basis as of 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


 


(2)                                  notwithstanding
clause (1) of this paragraph, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreements.


 


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


 


(1)                                  Consolidated
Interest Expense; plus


 


(2)                                  the product of (x) the
amount of all dividend payments on any series of Preferred Stock of such Person
and, to the extent permitted under this Supplemental Indenture, its Restricted
Subsidiaries (other than dividends paid in Qualified Capital Stock) paid,
accrued or scheduled to be paid or accrued during such period, times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local income
tax rate of such Person, expressed as a decimal.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum
of, without duplication:


 


(1)                                  the aggregate
of the interest expense of such Person and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, including
without limitation:  (a) any
amortization of debt discount and amortization or write-off of deferred
financing costs; (b) the net costs under Interest Swap Obligations; (c) all
capitalized interest; and (d) the interest portion of any deferred payment
obligation; and


 


(2)                                  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
aggregate net income (or loss) of such Person and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom:


 


(1)                                  after-tax gains
from Asset Sales (without regard to the $5.0 million limitation set forth in
the definition thereof) or abandonments or reserves relating thereto;


 


(2)                                  after-tax items
classified as extraordinary or nonrecurring gains or losses;


 


7

















 


(3)                                  the net income
of any Person acquired in a “pooling of interests” transaction accrued prior to
the date it becomes a Restricted Subsidiary of the referent Person or is merged
or consolidated with the referent Person or any Restricted Subsidiary of the
referent Person;


 


(4)                                  the net income
(but not loss) of any Restricted Subsidiary of the referent Person to the
extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by contract, operation of
law or otherwise;


 


(5)                                  the net income
of any Person, other than a Restricted Subsidiary of the Company, except to the
extent of cash dividends or distributions paid to the Company or to a
Restricted Subsidiary of the Company by such Person;


 


(6)                                  income or loss
attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued);


 


(7)                                  in the case of
a successor to the referent Person by consolidation or merger or as a
transferee of the referent Person’s assets, any earnings of the successor
entity prior to such consolidation, merger or transfer of assets; and


 


(8)                                  non-cash
charges relating to compensation expense in connection with benefits provided
under employee stock option plans, restricted stock option plans and other
employee stock purchase or stock incentive plans.


 


“Consolidated
Net Worth” of any Person means the consolidated stockholders’ equity of
such Person, determined on a consolidated basis in accordance with GAAP, less
(without duplication) amounts attributable to Disqualified Capital Stock of
such Person.


 


“Consolidated
Non-cash Charges” means, with respect to any Person, for any period, the
aggregate depreciation, amortization 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 that require an
accrual of or a reserve for cash charges for any future period).


 


“Consolidated
Secured Debt Ratio” as of any date of determination means the ratio of (1) Consolidated
Total Indebtedness of the Company and its Restricted Subsidiaries that is
secured by Liens as of the end of the most recent fiscal period for which
internal quarterly financial statements are available immediately preceding the
date on which such event for which such calculation is being made to (2) the
Company’s Consolidated EBITDA for the most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being
made, in each case with such pro forma
adjustments to Consolidated Total Indebtedness and Consolidated EBITDA as are
appropriate and consistent with the pro forma
adjustment provisions set forth in the definition of “Consolidated Fixed Charge
Coverage Ratio.”


 


8

















 


“Consolidated
Total Assets” means the total consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent consolidated balance sheet
of the Company and its Restricted Subsidiaries.


 


“Consolidated
Total Indebtedness” means, as at any date of determination, an amount equal
to the sum of (1) the aggregate amount of all outstanding Indebtedness of
the Company and its Restricted Subsidiaries on a consolidated basis consisting
of Indebtedness for borrowed money, obligations in respect of Capitalized Lease
Obligations and debt obligations evidenced by promissory notes and similar
instruments and (2) the aggregate amount of all outstanding Disqualified
Capital Stock of the Company and all Preferred Stock of its Restricted
Subsidiaries on a consolidated basis, with the amount of such Disqualified
Capital Stock and Preferred Stock equal to the greater of their respective
voluntary or involuntary liquidation preferences and maximum fixed repurchase
prices, in each case determined on a consolidated basis in accordance with
GAAP.  For purposes hereof, the “maximum
fixed repurchase price” of any Disqualified Capital Stock or Preferred Stock
that does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock or Preferred Stock as if such
Disqualified Capital Stock or Preferred Stock were purchased on any date on
which Consolidated Total Indebtedness shall be required to be determined
pursuant to this Supplemental Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Disqualified Capital Stock or
Preferred Stock, such Fair Market Value shall be determined reasonably and in
good faith by the Company.


 


“Covenant
Defeasance” has the meaning given such term in Section 8.03.


 


“Credit
Agreement” means the Amended and Restated Credit Agreement, dated as of August 25,
2008 (as previously and hereafter amended), between the Company, the subsidiary
borrowers signatory thereto, JPMorgan Chase Bank, N.A., as administrative agent
and collateral agent, and the other financial institutions party thereto,
together with the related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case as amended through October 18,
2010 and as such agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including increasing the amount of available
borrowings thereunder or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.


 


“Credit
Facilities” means one or more debt facilities, including the Credit
Agreement, or other financing arrangements (including, without limitation,
commercial paper facilities or indentures) providing for revolving credit
loans, term loans, letters of credit or other indebtedness, including any
notes, mortgages, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements or refundings thereof and any
indentures or credit facilities or commercial paper facilities that replace,
refund or refinance any part of the loans, notes, other credit facilities or
commitments thereunder, including any such replacement, refunding or 


 


9

















 


refinancing
facility or indenture that increases the amount permitted to be borrowed
thereunder or alters the maturity thereof, whether by the same or any other
agent, investor, lender or group of lenders.


 


“Currency
Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary of the Company against fluctuations in currency values.


 


“Custodian”
has the meaning provided in Section 2.01.


 


“Default”
means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.


 


“Definitive
Registered Note” means any Note that is not a Global Note and that is
registered in the Register, the form of which is attached hereto as Exhibit A.


 


“Designated
Non-Cash Consideration” means the Fair Market Value of non-cash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as “Designated Non-Cash
Consideration” pursuant to an Officers’ Certificate, setting forth the basis of
such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of such Designated Non-Cash Consideration.


 


“Disqualified
Capital Stock” means that portion of any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder thereof), or upon the happening of
any event (other than an event which would constitute a Change of Control),
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof (except,
in each case, upon the occurrence of a Change of Control), on or prior to the
final maturity date of the Notes.


 


“Domestic
Restricted Subsidiary” means any Restricted Subsidiary of the Company
incorporated or otherwise existing under the laws of the United States, any
state thereof or the District of Columbia.


 


“Events
of Default” has the meaning provided in Section 6.01.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto.


 


“Existing
2018 Notes” means the Company’s $400.0 million 9.50% Senior Notes due 2018.


 


“Existing
Notes” means the Existing 2018 Notes and the Company’s $150.0 million
7.125% Senior Notes due 2013.


 


10

















 


“Factor”
means, collectively, one or more purchasers of receivables under the Factoring
Agreement.


 


“Factoring
Agreement” means one or more receivables purchase agreements (or similar
agreements) entered into by the Company or any of its Restricted Subsidiaries
with one or more Factors, as the same may be amended, modified, supplemented
and/or replaced from time to time so long as any such replacement agreement is
on terms no less favorable to the Company or any of its Restricted Subsidiaries
in any material respect than those terms set forth in the Factoring Agreements
as in effect on the Issue Date.


 


“Fair
Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.  Fair Market Value shall be determined by the
Board of Directors of the Company acting reasonably and in good faith and shall
be evidenced by a Board Resolution of the Board of Directors of the Company
delivered to the Trustee.


 


“Foreign
Cash Equivalents” means certificates of deposit or bankers’ acceptances of
any bank organized under the laws of Canada, Singapore, Australia, China or any
country that is a member of the European Union, whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from
Moody’s is at least P-1 or the equivalent thereof, in each case with maturities
of not more than one year from the date of acquisition.


 


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


 


“Four
Quarter Period” has the meaning given such term in the definition of “Consolidated
Fixed Charge Coverage Ratio.”


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the 
accounting profession of the United States, which are in effect as of
the Issue Date.


 


“guarantee”
means a direct or indirect guarantee by any Person of any Indebtedness of any
other Person and includes any obligation, direct or indirect, contingent or
otherwise, of such Person:  (1) to
purchase or pay (or advance or supply funds for the purchase or payment of)
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services (unless such purchase arrangements are on arm’s-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise); or (2) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part). 
When used as  verbs, “guarantee”
and “guaranteed” have correlative meanings.


 


11

















 


“Guarantee”
means any guarantee of the Obligations of the Company under this Supplemental
Indenture and the Notes by a Guarantor. 
When used as a verb, “Guarantee” shall have a corresponding
meaning.


 


“Guarantor”
means:  (1) each of Manitowoc Crane
Companies, LLC; Manitowoc Foodservice Companies, LLC; Manitowoc Cranes, LLC;
Grove U.S. LLC; Manitowoc FP, Inc.; Manitowoc FSG Operations, LLC; MMG
Holding Co., LLC; McCann’s Engineering &     Manufacturing Co., LLC; Manitowoc FSG
Services, LLC; Manitowoc FSG International Holdings, Inc.; Kysor Nevada
Holding Corp.; Cleveland Range, LLC; The Delfield Company LLC; Frymaster LLC;
Kysor Industrial Corporation; Welbilt Walk-ins, LP; MTW County Limited; Enodis
Limited; Enodis Corporation; Enodis Holdings, Inc.; Manitowoc FSG U.S.
Holding, LLC;  Manitowoc Crane Group U.S.
Holding, LLC; Environmental Rehab, Inc.; Manitowoc CP, Inc.;
Manitowoc MEC, Inc.; Manitowoc Re-Manufacturing, LLC; and Manitowoc
Equipment Works, Inc.; and (2) each of the Company’s Domestic
Restricted Subsidiaries that in the future executes a supplemental indenture in
which such Domestic Restricted Subsidiary agrees to be bound by the terms of
this Supplemental Indenture as a Guarantor; provided that
any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of this Supplemental Indenture.


 


“Holder”
means any Person shown on the Register as the registered holder, from time to
time, of the Notes.


 


“incur”
has the meaning given such term in Section 4.03.


 


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


 


(1)                                  all Obligations
of such Person for borrowed money;


 


(2)                                  all Obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;


 


(3)                                  all Capitalized
Lease Obligations of such Person;


 


(4)                                  all Obligations
of such Person issued or assumed as the deferred purchase price of property,
all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business);


 


(5)                                  all Obligations
for the reimbursement of any obligor on any letter of credit, banker’s
acceptance or similar credit transaction which is issued in respect of
Indebtedness referred to in clauses (1) through (4) above and clause (8) below;


 


(6)                                  guarantees and
other contingent obligations in respect of Indebtedness referred to in clauses (1) through
(5) above and clause (8) below;


 


12

















 


(7)                                  all Obligations
of any other Person of the type referred to in clauses (1) through (6) above
that are secured by any Lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the fair market
value of such property or asset or the amount of the Obligation so secured;


 


(8)                                  all net
Obligations under Currency Agreements and interest swap agreements of such
Person; and


 


(9)                                  all
Disqualified Capital Stock issued by such Person, with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the
greater of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any.


 


For
purposes hereof, the “maximum fixed repurchase price” of any
Disqualified Capital Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Supplemental
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital 
Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the Company.


 


“Indenture”
means the Base Indenture, as amended and supplemented by this Supplemental
Indenture and one or more supplemental indentures thereto applicable to the
Notes, if any.


 


“Indenture
Obligations” has the meaning given such term in Section 11.01.


 


“Independent
Financial Advisor” means a firm:  (1) that
does not, and whose directors, officers and employees or Affiliates do not,
have a direct or indirect financial interest in the Company; and (2) that,
in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged.


 


“Indirect
Participant” is defined to mean a Person who holds a Book-Entry Interest
through a Participant.


 


“Initial
Notes” means (i) $600,000,000 aggregate principal amount of 8.50%
Senior Notes due 2020 issued on the Issue Date, substantially in the form of Exhibit A,
and (ii) Additional Notes.


 


“interest”
means, with respect to the Notes, interest on the Notes.


 


“Interest
Payment Date” means each semi-annual interest payment date on May 1
and November 1 of each year, commencing May 1, 2011.


 


“Interest
Swap Obligations” means the obligations of any Person pursuant to 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


 


13
















 


rate
of interest on a stated notional amount in exchange for periodic payments made
by such other 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.


 


“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.  “Investment” shall exclude
extensions of trade credit by the Company and its Restricted Subsidiaries on
commercially reasonable terms.  If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Common Stock of any direct or indirect Wholly Owned Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 100% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted
Subsidiary not sold or disposed of.


 


“Investment
Grade Rating” means a rating of Baa3 or better by Moody’s and BBB- or
better by S&P (or its equivalent under any successor rating categories of
S&P) (or, in each case, if such Rating Agency ceases to rate the Notes for
reasons outside of the control of the Company, the equivalent investment grade
credit rating from any Rating Agency selected by the Company as a replacement
Rating Agency).


 


“Issue
Date” means October 18, 2010.


 


“Legal
Defeasance” has the meaning given such term in Section 8.02.


 


“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).


 


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


 


“Net
Cash Proceeds” means, with respect to any Asset Sale, the proceeds 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
(other than the portion of any such deferred payment constituting interest)
received by the Company or any of its Restricted Subsidiaries from such Asset
Sale net of:


 


(1)           reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions);


 


14

















 


(2)           taxes paid or
payable after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing arrangements;


 


(3)           repayment of
Indebtedness that is secured by the property or assets that are the subject of
such Asset Sale; and


 


(4)           appropriate amounts
to be provided by the Company or any Restricted Subsidiary, as the case may be,
as a reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary, 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.


 


“Net
Proceeds Offer” has the meaning provided in Section 4.10(b).


 


“Net
Proceeds Offer Amount” has the meaning provided in Section 4.10(b).


 


“Net
Proceeds Offer Payment Date” has the meaning provided in Section 4.10(b).


 


“Net
Proceeds Offer Trigger Date” has the meaning provided in Section 4.10(b).


 


“Non-payment
Default” has the meaning provided in Section 10.02(b).


 


“Notes”
means the Initial Notes and the Additional Notes, if any.  The Initial Notes and any Additional Notes
shall be treated as a single class for all purposes under this Supplemental
Indenture, and unless the context otherwise requires, all references to the
Notes shall include the Initial Notes and any Additional Notes.


 


“Obligations”
means all obligations for principal, premium, interest, penalties, fees,
indemnification, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.


 


“Officer”
means any of the following of the Company: 
the Chairman of the Board of Directors, Vice Chairman of the Board of
Directors, Chief Executive Officer, President, Chief Operating Officer, Chief
Financial Officer, Vice President, Treasurer, Secretary, Assistant Secretary or
Assistant Treasurer (including interim officers).


 


“Pari
Passu Indebtedness” means any Indebtedness of the Company or any Guarantor
that ranks pari passu in right of payment with the
Notes or the Guarantee of such Guarantor, as applicable.


 


“Participants”
means, with respect to the Depository, Persons who have accounts with the
Depository.


 


“Paying
Agent” has the meaning provided in Section 2.04, except that, for the
purposes of Article Eight, the Paying Agent shall not be the Company, any
Guarantor or any 


 


15

















 


Subsidiary
of the Company, a Guarantor or an Affiliate of any of them.  The term “Paying Agent” includes any
additional Paying Agent.


 


“Permitted
Indebtedness” means, without duplication, each of the following:


 


(1)           Indebtedness under
the Notes issued on the Issue Date in an aggregate principal amount not to
exceed $600.0 million and the related Guarantees;


 


(2)           Indebtedness
incurred pursuant to Credit Facilities in an aggregate principal amount at any
time outstanding not to exceed $2,675.0 million (i) less the amount of all
mandatory principal payments actually made by the Company or any Restricted
Subsidiary with the Net Cash Proceeds from Asset Sales in respect of the term
loans thereunder (excluding any such payments to the extent refinanced at the
time of payment under a replaced Credit Facility); and (ii) reduced by any
mandatory permanent repayments of revolving loans made by the Company
thereunder (which are accompanied by a corresponding permanent commitment
reduction) with the Net Cash Proceeds from Asset Sales (excluding any such
payments and commitment reductions to the extent refinanced at the time of
payment under a replaced Credit Agreement).


 


(3)           Indebtedness of the
Company and its Restricted Subsidiaries outstanding on the Issue Date (other
than Indebtedness under clauses (1) and (2) above) reduced by the
amount of any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions therein;


 


(4)           Interest Swap
Obligations of the Company or any of its Restricted Subsidiaries covering
Indebtedness of the Company or such Restricted Subsidiary; provided, however,
that such Interest Swap Obligations are entered into to protect the Company and
its Restricted Subsidiaries from fluctuations in interest rates on Indebtedness
incurred without violation of this Supplemental Indenture to the extent the
notional principal amount of such Interest Swap Obligation does not exceed, at
the time of the incurrence thereof, the principal amount of the Indebtedness to
which such Interest Swap Obligation relates;


 


(5)           Indebtedness under
Currency Agreements; provided that
in the case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its Restricted
Subsidiaries outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;


 


(6)           Indebtedness of a
Restricted Subsidiary of the Company to the Company, to a Guarantor or to
another Wholly Owned Restricted Subsidiary of the Company for so long as such
Indebtedness is held by the Company, such Guarantor, such Wholly Owned
Restricted Subsidiary or the holders of a Lien permitted under this
Supplemental Indenture, in each case subject to no Lien held by a Person other
than the Company, a Guarantor, such Wholly Owned Restricted Subsidiary or
holders of a Lien permitted under this Supplemental Indenture; provided that if as of any date any Person other than the
Company, a Guarantor, a Wholly Owned Restricted Subsidiary of the Company or 


 


16

















 


the
holder of a Lien permitted under this Supplemental Indenture owns or holds any
such Indebtedness or holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the issuer of such Indebtedness pursuant to this clause (6);


 


(7)           Indebtedness of the
Company to a Wholly Owned Restricted Subsidiary of the Company for so long as
such Indebtedness is held by a Wholly Owned Restricted Subsidiary of the
Company or the holders of a Lien permitted under this Supplemental Indenture,
in each case subject to no Lien other than a Lien permitted under this
Supplemental Indenture; provided that (a) any
Indebtedness of the Company to any Wholly Owned Restricted Subsidiary of the
Company that is not Guarantor is unsecured and subordinated, pursuant to a
written agreement, to the Company’s obligations under this Supplemental
Indenture and the Notes and (b) if as of any date any Person other than a
Wholly Owned Restricted Subsidiary of the Company or the holders of a Lien
permitted under this Supplemental Indenture owns or holds any such Indebtedness
or any Person holds a Lien in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted Indebtedness
by the Company pursuant to this clause (7);


 


(8)           Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however, that
such  Indebtedness is extinguished within
four business days of incurrence;


 


(9)           Indebtedness of the
Company or any of its Restricted Subsidiaries represented by letters of credit
for the account of the Company or such Restricted Subsidiary, as the case may
be, in order to provide security for workers’ compensation claims, payment
obligations in connection with self-insurance, the purchase of goods or similar
requirements in the ordinary course of business;


 


(10)         Indebtedness
represented by guarantees by the Company or its Restricted Subsidiaries of
Indebtedness otherwise permitted to be incurred under this Supplemental
Indenture; provided that, in the case of a
guarantee by a Restricted Subsidiary, such Restricted Subsidiary complies with Section 4.12
(to the extent applicable);


 


(11)         Indebtedness of the
Company or any of its Restricted Subsidiaries in respect of bid, payment and performance
bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal
bonds, payment obligations in connection with self-insurance or similar
obligations, and bank overdrafts (and letters of credit in respect thereof) in
the ordinary course of business;


 


(12)         Indebtedness of the
Company or any Restricted Subsidiary consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets;


 


17

















 


(13)         Indebtedness
represented by Capitalized Lease Obligations and Purchase Money Indebtedness of
the Company and its Restricted Subsidiaries incurred in the ordinary course of
business not to exceed $25.0 million at any one time outstanding;


 


(14)         Indebtedness of
Foreign Restricted Subsidiaries of the Company in an aggregate principal amount
not to exceed $50.0 million under lines of credit to any such Foreign
Restricted Subsidiary from Persons other than the Company or any of its
Subsidiaries, the proceeds of which Indebtedness are used for such Foreign
Restricted Subsidiary’s working capital and other general corporate purposes;


 


(15)         Indebtedness that may
be deemed to exist pursuant to the Factoring Agreements and Indebtedness by a
Securitization Entity in a Qualified Securitization Transaction that is not
recourse (except for Standard Securitization Undertakings) to the Company or
any of its Restricted Subsidiaries; provided that
any amounts incurred under this clause (15) in excess of $125.0 million will
reduce the amounts available for borrowing under clause (2) above in an
equal amount;


 


(16)         Indebtedness of the
Company evidenced by commercial paper issued by the Company; provided that the aggregate outstanding principal amount of
Indebtedness incurred pursuant to clause (2) of this definition and this
clause (16) does not exceed the maximum amount of Indebtedness permitted under
clause (2) of this definition;


 


(17)         Refinancing
Indebtedness;


 


(18)         Indebtedness of the
Company or any of its Restricted Subsidiaries consisting of obligations to
repurchase equipment or guarantees of the residual value of equipment incurred
in the ordinary course of business, to the extent such obligations do not
exceed the fair market value of such equipment; and


 


(19)         additional
Indebtedness of the Company and its Restricted Subsidiaries in an aggregate
principal amount not to exceed $200.0 million at any one time outstanding
(which amount may, but need not, be incurred in whole or in part under Credit
Facilities).


 


For
purposes of determining any particular amount of Indebtedness under Section 4.03,
guarantees, Liens or letter of credit obligations supporting Indebtedness
otherwise included in the determination of such particular amount shall not be
included.  For purposes of determining
compliance with Section 4.03, in the event that all or a portion of an
item of Indebtedness meets the criteria of more than one of the categories of
Permitted Indebtedness described in clauses (1) through (19) above or is
permitted to be incurred pursuant to the Consolidated Fixed Charge Coverage
Ratio provisions of such section, the Company shall, in its sole discretion,
classify (or later reclassify) such item or portion of such item of
Indebtedness in any manner that complies with such section, except that
Indebtedness outstanding under the Existing 2018 Notes and the Credit Agreement
on the Issue Date shall be deemed to have been incurred under clause (2) above.
Accrual of interest, accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, the payment of dividends on Disqualified Capital Stock in
the form of additional shares of the same class of Disqualified Capital Stock
and change in the amount 


 


18

















 


outstanding
due solely to the result of fluctuations in the exchange rates of currencies
will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Capital Stock for purposes of Section 4.03.


 


“Permitted
Investments” means:


 


(1)           Investments by the
Company or any Restricted Subsidiary of the Company in any Person that is or
will become after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company and other Investments to the extent
constituting intercompany Indebtedness permitted under clause (6) or (7) of
the definition of “Permitted Indebtedness”;


 


(2)           Investments in the
Company by any Restricted Subsidiary of the Company; provided
that any Indebtedness evidencing such Investment, to the extent held by a
Restricted Subsidiary that is not a Guarantor, is unsecured and subordinated,
pursuant to a written agreement, to the Company’s obligations under the Notes
and this Supplemental Indenture;


 


(3)           Investments in cash
and Cash Equivalents;


 


(4)           loans and advances
to employees and officers of the Company and its Restricted Subsidiaries in the
ordinary course of business for bona fide business purposes not in excess of
$5.0 million at any one time outstanding;


 


(5)           Currency Agreements
and Interest Swap Obligations entered into in the ordinary course of the
Company’s or its Restricted Subsidiaries’ businesses and otherwise in
compliance with this Supplemental Indenture;


 


(6)           additional
Investments not to exceed $25.0 million at any one time outstanding;


 


(7)           Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers;


 


(8)           Investments made by
the Company or its Restricted Subsidiaries as a result of consideration
received in connection with an Asset Sale made in compliance with Section 4.10;


 


(9)           Investments
represented by guarantees that are otherwise permitted under this Supplemental
Indenture;


 


(10)         Investments the
payment for which is Qualified Capital Stock of the Company;


 


19

















 


(11)         any Investment by the
Company or a Wholly Owned Subsidiary of the Company in a Securitization Entity
or any Investment by a Securitization Entity in any other Person in connection
with a Qualified Securitization Transaction; provided
that any Investment in a Securitization Entity is in the form of a Purchase
Money Note or an equity interest;


 


(12)         Investments by the
Company consisting of obligations of one or more officers, directors or other
employees of the Company or any of its Subsidiaries in connection with such
officers’, directors’ or employees’ acquisition of shares of capital stock of
the Company so long as no cash is paid by the Company or any of its
Subsidiaries to such officers, directors or employees in connection with the
acquisition of any such obligations;


 


(13)         Investments in
existence on the date of this Supplemental Indenture; and


 


(14)         Investments in joint
ventures not to exceed $50.0 million at any one time outstanding.


 


“Permitted
Liens” means the following types of Liens:


 


(1)           Liens for taxes,
assessments or governmental charges or claims either (a) not delinquent or
(b) 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;


 


(2)           statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen and 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, if such reserve or other appropriate provision, if any, as shall be
required by GAAP has been made in respect thereof;


 


(3)           Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of
business in connection therewith, 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 the payment of borrowed money);


 


(4)           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;


 


(5)           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;


 


20

















 


(6)           Liens upon specific
items of inventory or other goods and proceeds of any Person securing such
Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods;


 


(7)           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;


 


(8)           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;


 


(9)           Liens securing
Interest Swap Obligations which Interest Swap Obligations relate to
Indebtedness that is otherwise permitted under this Supplemental Indenture;


 


(10)         Liens securing
Capitalized Lease Obligations and Purchase Money Indebtedness permitted
pursuant to clause (13) of the definition of “Permitted Indebtedness”; provided, however, that
in the case of Purchase Money Indebtedness (a) the Indebtedness shall not
exceed the cost of such property or assets and shall not be secured by any
property or assets of the Company or any Restricted Subsidiary of the Company
other than the property and assets so acquired or constructed and the proceeds
thereof and (b) the Lien securing such Indebtedness shall be created
within 90 days of such acquisition or construction or, in the case of a
refinancing of any Purchase Money Indebtedness, within 90 days of such
refinancing;


 


(11)         Liens securing Indebtedness
under Currency Agreements;


 


(12)         Liens securing
Acquired Indebtedness incurred in accordance with Section 4.03; provided that:


 


(a)           such
Liens secured such Acquired Indebtedness at the time of and prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Indebtedness by the Company or
a Restricted Subsidiary of the Company; and


 


(b)           such
Liens do not extend to or cover any property or assets of the Company or of any
of its Restricted Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary of the Company and are
no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company;


 


21

















 


(13)         Liens on assets of a
Restricted Subsidiary of the Company that is not a Guarantor to secure
Indebtedness of such Restricted Subsidiary that is otherwise permitted under
this Supplemental Indenture;


 


(14)         Liens on assets
transferred to a Securitization Entity or on assets of a Securitization Entity,
in either case incurred in connection with a Qualified Securitization
Transaction, and Liens in favor of a Factor solely on those accounts receivable
(and the rights ancillary thereto) of the Company and its Restricted
Subsidiaries that are purchased by a Factor pursuant to a Factoring Agreement
from time to time;


 


(15)         leases, subleases,
licenses and sublicenses granted to others that do not materially interfere
with the ordinary course of business of the Company and its Restricted
Subsidiaries;


 


(16)         banker’s Liens,
rights of set-off and similar Liens with respect to cash and Cash Equivalents
on deposit in one or more bank accounts in the ordinary course of business;


 


(17)         Liens arising from
filing Uniform Commercial Code financing statements regarding leases;


 


(18)         Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
custom duties in connection with the importation of goods;


 


(19)         rights of customers
with respect to inventory which arise from deposits and progress payments made
in the ordinary course of business;


 


(20)         Liens securing
Indebtedness permitted pursuant to clause (14) of the definition of “Permitted
Indebtedness”; and


 


(21)         additional Liens not
to exceed $25.0 million at any one time.


 


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


 


“Preferred
Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.


 


“principal”
means, with respect to the Notes, the principal of, and premium, if any, on the
Notes.


 


“Prior
Issue Date” means November 6, 2003.


 


“Public
Equity Offering” means an underwritten public offering of Qualified Capital
Stock of the Company pursuant to a registration statement filed with the
Commission in accordance with the Securities Act.


 


22

















 


“Purchase
Money Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries incurred in the normal course of business for the purpose of
financing all or any part of the purchase price, or the cost of installation,
construction or improvement, of property or equipment.


 


“Purchase
Money Note” means a promissory note of a Securitization Entity evidencing a
line of credit, which may be irrevocable, from the Company or any Subsidiary of
the Company in connection with a Qualified Securitization Transaction to a
Securitization Entity, which note shall be repaid from cash available to the
Securitization Entity other than amounts required to be established as reserves
pursuant to agreements, amounts paid to investors in respect of interest and
principal and amounts paid in connection with the purchase of newly generated
receivables or newly acquired equipment.


 


“Qualified
Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.


 


“Qualified
Securitization Transaction” means any transaction or series of transactions
that may be entered into by the Company, any of its Restricted Subsidiaries or
a Securitization Entity pursuant to which the Company or such Restricted
Subsidiary or that Securitization Entity may, pursuant to customary terms,
sell, convey or otherwise transfer to, or grant a security interest in for the
benefit of, (1) a Securitization Entity or the Company or any of its
Restricted Subsidiaries that subsequently transfers to a Securitization Entity
(in the case of a transfer by the Company or such Restricted Subsidiary) and (2) any
other Person (in the case of transfer by a Securitization Entity), any accounts
receivable (whether now existing or arising or acquired in the future) of the
Company or any of its Restricted Subsidiaries that arose in the ordinary course
of business of the Company and its Restricted Subsidiaries, and any assets
related thereto, including, without limitation, all collateral securing such
accounts receivable, all contracts and contract rights and all guarantees or
other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets (including contract rights) that are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.


 


“Rating
Agency” means (1) each of Moody’s and S&P and (2) if Moody’s
or S&P ceases to rate the Notes for reasons outside of the control of the
Company, a “nationally recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected
by the Company as a replacement agency for Moody’s or S&P, as the case may
be.


 


“redeem”
means to redeem, repurchase, purchase, defease, retire, discharge or otherwise
acquire or retire for value; and “redemption” shall have a correlative
meaning.


 


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


 


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


 


23
















 


“Reference
Date” has the meaning provided in Section 4.05.


 


“Refinance”
means, in respect of any security or Indebtedness, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part.  “Refinanced”
and “Refinancing” shall have correlative meanings.


 


“Refinancing
Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of the Company of Indebtedness incurred in accordance with Section 4.03
(other than pursuant to clause (2), (4), (5), (6), (7), (8), (9), (10), (11),
(12), (13), (14), (15), (16), (18) or (19) of the definition of “Permitted
Indebtedness”), in each case to the extent that it does not:


 


(1)                                  result in an
increase in the aggregate principal amount of Indebtedness of such Person as of
the date of such proposed Refinancing (plus the amount of any premium required
to be paid under the terms of the instrument governing such Indebtedness and plus
the amount of reasonable expenses incurred by the Company in connection with
such Refinancing); or


 


(2)                                  create
Indebtedness with:  (a) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced; or (b) a final maturity
earlier than the final maturity of the Indebtedness being Refinanced; provided that (x) if such Indebtedness being Refinanced
is Indebtedness solely of the Company, then such Refinancing Indebtedness shall
be Indebtedness solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes, then such Refinancing
Indebtedness shall be subordinate to the Notes at least to the same extent and
in the same manner as the Indebtedness being Refinanced.


 


“Register”
has the meaning provided in Section 2.04.


 


“Registrar”
has the meaning provided in Section 2.04.


 


“Regular
Record Date” for the interest payable on any Interest Payment Date means
the April 15 or October 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.


 


“Restricted
Payment” has the meaning provided in Section 4.05.


 


“Restricted
Subsidiary” of any Person means any Subsidiary of such Person which at the
time of determination is not an Unrestricted Subsidiary.


 


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


 


“Sale
and Leaseback Transaction” means any direct or indirect arrangement with
any Person or to which any such Person is a party, providing for the leasing to
the Company or a Restricted Subsidiary of any property, whether owned by the
Company or any Restricted 


 


24

















 


Subsidiary
at the Issue Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person or to
any other Person from whom funds have been or are to be advanced by such Person
on the security of such Property.


 


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


 


“Securitization
Entity” means a Wholly Owned Subsidiary of the Company (or another Person
in which the Company or any Subsidiary of the Company makes an Investment and
to which the Company or any Subsidiary of the Company transfers accounts
receivable and related assets) that engages in no activities other than in
connection with the financing of accounts receivable and that is designated by
the Board of Directors of the Company (as provided below) as a Securitization
Entity; and


 


(1)                                  no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which:


 


(a)                                  is guaranteed by the Company
or any Restricted Subsidiary of the Company (other than the Securitization
Entity) (excluding guarantees of obligations (other than the principal of, and
interest on, Indebtedness)) pursuant to Standard Securitization
Undertakings,


 


(b)                                 is recourse to or obligates
the Company or any Restricted Subsidiary of the Company (other than the
Securitization Entity) in any way other than pursuant to Standard
Securitization Undertakings or


 


(c)                                  subjects any asset of the
Company or any Restricted Subsidiary of the Company (other than the
Securitization Entity), directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings and other than any interest in the accounts receivable and related
assets being financed (whether in the form of an equity interest in such assets
or subordinated indebtedness payable primarily from such financed assets),
retained or acquired by the Company or any Restricted Subsidiary of the
Company;


 


(2)                                  with which
neither the Company nor any Restricted Subsidiary of the Company has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company, other
than fees payable in the ordinary course of business in connection with
servicing receivables of such entity; and


 


(3)                                  to which
neither the Company nor any Restricted Subsidiary of the Company has any
obligation to maintain or preserve such entity’s financial condition or cause
such entity to achieve certain levels of operating results.


 


Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such 


 


25

















 


designation
and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.


 


“Significant
Subsidiary,” with respect to any Person, means any Restricted Subsidiary of
such Person that satisfies the criteria for a “significant subsidiary” set
forth in Rule 1-02(w) of Regulation S-X under the Securities Act.


 


“Standard
Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Company or any Subsidiary of the Company
that are reasonably customary in an accounts receivable securitization
transaction.


 


“Subordinated
Indebtedness” means Indebtedness of the Company or any Guarantor that is
subordinated or junior in right of payment to the Notes or the Guarantee of
such Guarantor, as the case may be.


 


“Subsidiary,”
with respect to any Person, means:


 


(1)                                  any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or through another Subsidiary, by such
Person; or


 


(2)                                  any other
Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or through another Subsidiary, owned by
such Person.


 


“Surviving
Entity” has the meaning given such term in Section 5.01(a)(1)(B).


 


“TIA”
or “Trust Indenture Act” means the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbb), as in effect on the date this
Supplemental Indenture was executed, except as provided in Section 9.06.


 


“Transaction
Date” has the meaning given such term in the definition of “Consolidated
Fixed Charge Coverage Ratio.”


 


“Transfer
Agent” means Wells Fargo Bank, National Association in its capacity as
transfer agent.


 


“Treasury Rate” means, with
respect to a date of redemption, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days
prior to such date of redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly
equal to the period from such date of redemption to November 1, 2015; provided, however,
that if the period from such date of redemption to November 1, 2015 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-


 


26

















 


twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the period from such date of
redemption to November 1, 2015 is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.


 


“Unrestricted
Subsidiary” of any Person means:


 


(1)                                  any Subsidiary
of such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below; and


 


(2)                                  any Subsidiary
of an Unrestricted Subsidiary.


 


The
Board of Directors of the Company may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided
that:


 


(1)                                  the Company
certifies to the Trustee that such designation complies with Section 4.05;
and


 


(2)                                  each Subsidiary
to be so designated and each of its Subsidiaries has not at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries.


 


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


 


(1)                                  immediately
after giving effect to such designation, the Company is able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.03; and


 


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


 


Any
such designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing provisions.


 


“U.S.
Government Obligations” means securities issued or directly and fully
guaranteed or insured by the government of the United States of America rated
AAA or better by S&P and Aaa or better by Moody’s.


 


27

















 


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


 


“Wholly
Owned Restricted Subsidiary” of any Person means any Wholly Owned
Subsidiary of such Person which at the time of determination is a Restricted
Subsidiary of such Person.


 


“Wholly
Owned Subsidiary” of any Person means any Subsidiary of such Person of
which all the outstanding voting securities (other than in the case of a
Restricted Subsidiary that is incorporated in a jurisdiction other than a State
in the United States or the District of Columbia, directors’ qualifying shares
or an immaterial amount of shares required to be owned by other Persons
pursuant to applicable law are owned by such Person or any Wholly Owned
Subsidiary of such Person.


 


SECTION 1.02.                                    Incorporation
by Reference of Trust Indenture Act.  Whenever this Supplemental Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and
made a part of this Supplemental Indenture. 
The following TIA term used in this Supplemental Indenture has the
following meaning:


 


“obligor”
on the indenture securities means the Company or any other obligor on the
Notes.


 


All
other TIA terms used in this Supplemental Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of
the Commission and not otherwise defined herein have the meanings assigned to
them therein.


 


SECTION 1.03.                                    Rules of
Construction.  Unless the
context otherwise requires:


 


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


 


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


 


(iii)                               “or” is not
exclusive;


 


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


 


(v)                                 provisions
apply to successive related events and transactions;


 


28

















 


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


 


(vii)                           all ratios and
computations based on GAAP contained in this Supplemental Indenture shall be
computed in accordance with the definition of “GAAP” set forth in Section 1.01;


 


(viii)                        all references
to Sections or Articles refer to Sections or Articles of this Supplemental
Indenture unless otherwise indicated;


 


(ix)                                all references
to “$,” “Dollars,” “U.S. Dollars” or money refer to the lawful currency of the
United States, unless the content expressly contemplates otherwise.


 


ARTICLE TWO


 


THE NOTES


 


SECTION 2.01.                                    The Notes.


 


(a)                                  Form and
Dating.  The Notes and the Trustee’s
certificate of authentication thereon shall be substantially in the form
annexed hereto as Exhibit A with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Supplemental Indenture.  The Notes
may have notations, legends or endorsements required by law, stock exchange
agreements to which the Company is subject or usage.  The Company shall approve the form of the
Notes and any notation, legend or endorsement on the Notes.  Each Note shall be dated the date of its
authentication.


 


The
terms and provisions contained in the forms of the Notes annexed hereto as Exhibit A
shall constitute, and are hereby expressly made, a part of this Supplemental
Indenture.  The Global Notes and the
Definitive Registered Notes shall be issued only in registered form.  The Notes shall be issued without
coupons.  The Notes shall be issued only
in denominations of $2,000 principal amount or any integral multiple of $1,000
in excess thereof.  To the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby.


 


(b)                                 Global Notes.  Notes issued in global form will be
substantially in the form of Exhibit A attached hereto (including the
Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto).  Notes
issued in definitive form will be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the “Schedule
of Exchanges of Interests in the Global Note” attached thereto).  Each Global Note will represent such of the
outstanding Notes as will be specified therein and each shall provide that it
represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect 


 


29

















 


the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.


 


(c)                                  Definitive
Registered Notes.  Definitive
Registered Notes issued upon transfer of a Book-Entry Interest or a Definitive
Registered Note, or in exchange for a Book-Entry Interest or a Definitive
Registered Note, shall be issued in accordance with this Supplemental
Indenture, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.  The Definitive
Registered Notes shall be typed, printed, lithographed or engraved or produced
by any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.


 


(d)                                 Book-Entry
Provisions. 
Participants and Indirect Participants shall have no rights either under
this Supplemental Indenture or under any Global Note with respect to such
Global Note held on their behalf by the Custodian.  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 Depository or impair, as between the Depository
and its Participants, the operation of customary practices of the Depository
governing the exercise of the rights of an owner of a beneficial interest in
any Global Note.


 


SECTION 2.02.                                    Legends.


 


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


 


“THIS GLOBAL NOTE IS HELD BY
THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.04 OF THE SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.04(a) OF
THE SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.10 OF THE BASE
INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.


 


UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.  UNLESS THIS CERTIFICATE IS PRESENTED BY 


 


30

















 


AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”


 


SECTION 2.03.                                    Execution and
Authentication.  The Trustee
or an authenticating agent shall, upon receipt of a Company Order, authenticate
(i) Initial Notes for original issue in an unlimited aggregate principal
amount, of which $600,000,000 are being issued on the Issue Date and
(ii) Additional Notes issued pursuant to Section 2.06.  Each such Company Order shall specify the amount
of Notes to be authenticated and the date on which the Notes are to be
authenticated and whether the Notes are to be issued as Definitive Registered
Notes or Global Notes or such other information as the Trustee may reasonably
request.


 


SECTION 2.04.                                    Transfer and
Exchange.


 


(a)                                  Transfer and
Exchange of Global Notes.  A
Global Note may not be transferred as a whole except by the Depository to a
nominee of the Depository, by a nominee of the Depository to the Depository or
to another nominee of the Depository, or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.  All Global Notes will be exchanged by the
Company for Definitive Registered Notes if:


 


(1)                                  the Company
delivers to the Trustee notice from the Depository that it is unwilling or
unable to continue to act as Depository or that it is no longer eligible or in
good standing under the Exchange Act or other applicable statute or regulation
and, in either case, a successor Depository is not appointed by the Company
within 90 days after the date of such notice from the Depository; or


 


(2)                                  the Company in
its sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee.


 


Upon
the occurrence of either of the preceding events in (1) or (2) above,
Definitive Registered Notes shall be issued in such names as the Depository
shall instruct the Trustee.  Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections
3.05 and 3.07 of the Base Indenture. 
Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.04 or
Sections 3.05 or 3.07 of the Base Indenture, shall be authenticated and
delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for
another Note other than as provided in this Section 2.04(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.04(b) or (c) hereof.


 


31

















 


(b)                                 Transfer and
Exchange of Book Entry Interests in the Global Notes.  The transfer and exchange of Book Entry
Interests in the Global Notes will be effected through the Depository, in
accordance with the provisions of this Supplemental Indenture and the
Applicable Procedures.  Transfers of Book
Entry Interests in the Global Notes also will require compliance with
subparagraph (1) below, as well as one or more of the other following
subparagraphs, as applicable.


 


(1)                                  Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in a Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in a Global Note.  No written
orders or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section.


 


(2)                                  All Other
Transfers and Exchanges of Book-Entry Interests in Global Notes.  In connection with all transfers and
exchanges of Book-Entry Interests that are not subject to Section 2.04(b)(1) above,
the transferor of such Book-Entry Interest must deliver to the Registrar either
(A)(1) a written order from a Participant or an Indirect Participant given
to the Depository in accordance with the Applicable Procedures directing the
Depository to credit or cause to be credited a Book-Entry Interest in another
Global Note in an amount equal to the Book-Entry Interest to be transferred or exchanged
and (2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase or (B)(1) a written order from a Participant or an Indirect
Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository to cause to be issued a Definitive
Registered Note in an amount equal to the Book-Entry Interest to be transferred
or exchanged and (2) instructions given by the Depository to the Registrar
containing information regarding the Person in whose name such Definitive
Registered Note shall be registered to effect the transfer or exchange referred
to in (1) above.  Upon satisfaction
of all of the requirements for transfer or exchange of Book-Entry Interests in
Global Notes contained in this Supplemental Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.11.


 


(c)                                  Transfer or
Exchange of Book-Entry Interests for Definitive Registered Notes.


 


(i)                                     Book-Entry
Interests in Unrestricted Global Notes to Unrestricted Definitive Registered
Notes.  If any
holder of a Book-Entry Interest in a Global Note proposes to exchange such
Book-Entry Interest for a Definitive Registered Note or to transfer such
Book-Entry Interest to a Person who takes delivery thereof in the form of a
Definitive Registered Note, then, upon satisfaction of the conditions set forth
in Section 2.04(b)(2), the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.11,
and the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Registered Note in the
appropriate principal amount.  Any
Definitive Registered Note issued in exchange for a Book-Entry Interest
pursuant to this Section 2.04(c)(i) shall be registered in such name
or names and in such authorized denomination or denominations as the holder of
such Book-Entry Interest shall instruct the 


 


32

















 


Registrar
through instructions from the Depository and the Participant or Indirect
Participant.  The Trustee shall deliver
such Definitive Registered Notes to the Persons in whose names such Notes are
so registered.


 


(d)                                 Transfer and
Exchange of Definitive Registered Notes for Book-Entry Interests.


 


(i)                                     Definitive
Registered Notes to Book-Entry Interests in Global Notes.  A Holder of a Definitive Registered Note may
exchange such Note for a Book-Entry Interest in a Global Note or transfer such
Definitive Registered Notes to a Person who takes delivery thereof in the form
of a Book-Entry Interest in a Global Note at any time.  Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable Definitive Registered Note
and increase or cause to be increased the aggregate principal amount of one of
the Global Notes.


 


If
any such exchange or transfer from a Definitive Registered Note to a Book-Entry
Interest is effected pursuant to subparagraphs (ii)(b), (ii)(c) or (ii)(d) above
at a time when a Global Note has not yet been issued, the Company shall issue
and, upon receipt of a Company Order in accordance with Section 2.03, the
Trustee shall authenticate one or more Global Notes in an aggregate principal
amount equal to the principal amount of Definitive Registered Notes so
transferred.


 


(e)                                  Transfer and
Exchange of Definitive Registered Notes for Definitive Registered Notes.  Upon written request by a Holder of
Definitive Registered Notes and such Holder’s compliance with the provisions of
this Section 2.04(e), the Registrar shall register the transfer or
exchange of Definitive Registered Notes. 
Prior to such registration of transfer or exchange, the requesting
Holder shall present or surrender to the Registrar the Definitive Registered
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing.  In addition,
the requesting Holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions
of this Section 2.04(e).


 


(f)                                    General
Provisions Relating to All Transfers and Exchanges


 


(i)                                     To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes or Definitive Registered Notes, as the
case may be, in each case, in accordance with Section 2.03.


 


(ii)                                  No service
charge shall be made to a Holder for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any stamp or
transfer tax, duty or governmental charge payable in connection therewith
(other than any such stamp or transfer taxes, duties or similar governmental
charge payable upon exchange or transfer pursuant to Sections 3.05, 3.08, 4.10,
4.11 and 9.04 and Section 3.05 of the Base Indenture).


 


33
















 


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


 


(iv)                              The Company
shall not be required (A) to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days before any
redemption date under Section 3.08 and ending at the close of business on
the redemption date, (B) to register the transfer of or to exchange any
Note during a period beginning at the opening of business 15 days before any
mailing of a notice of redemption of Notes for partial redemption under Section 3.08
and ending on the day of such selection, (C) to register the transfer of
or to exchange a Note during a period beginning at the opening of business on a
record date for the payment of interest and the applicable succeeding Interest
Payment Date, or (D) to register the transfer of or to exchange a Note
that has been tendered in an Asset Sale Offer or a Change of Control Offer.


 


(v)                                 Prior to due presentment
for the registration of a transfer of any Note, the Trustee, the Paying Agents,
the Registrar, any Agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for the purpose
of receiving payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, the Paying Agents, the Registrar, any
Agent or the Company shall be affected by notice to the contrary.


 


(vi)                              The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Supplemental
Indenture or under applicable law with respect to any transfer of any interest
in any Note 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 Supplemental Indenture, and to
examine the same to determine substantial compliance as to form with the express
requirement hereof.


 


SECTION 2.05.                                    Defaulted
Interest.  If the
Company defaults on a payment of interest on the Notes, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient
to pay the defaulted interest, plus (to the extent lawful) any interest payable
on the defaulted interest, to the Persons who are Holders on a subsequent
special record date.  A special record
date, as used in this Section 2.05 with respect to the payment of any
defaulted interest, shall mean the 15th day next preceding the date fixed by
the Company for the payment of defaulted interest, whether or not such day is a
Business Day.  At least 15 days before
the subsequent special record date, the Company shall mail to each Holder and
to a Responsible Officer of the Trustee a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest to
be paid.


 


SECTION 2.06.                                    Issuance of
Additional Notes.  The Company
shall be entitled to issue Additional Notes under this Supplemental Indenture
that shall have identical terms as the Notes issued on the Issue Date, other
than with respect to the date of issuance, issue price and amount of interest
payable on the first payment date applicable thereto; provided
that such 


 


34

















 


issuance is not prohibited by
Section 4.03.  The Initial Notes
issued on the Issue Date and any Additional Notes shall be treated as a single
class for all purposes under this Supplemental Indenture.


 


With
respect to any Additional Notes, the Company shall set forth in a resolution of
its Board of Directors and in a Company Order, a copy of each of which shall be
delivered to the Trustee, the following information:


 


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


 


(2)                                  the issue price
and the issue date of such Additional Notes and the amount of interest payable
on the first payment date applicable thereto; provided, however, that no Additional Notes may be issued at a price
that would cause such Additional Notes to have “original issue discount” within
the meaning of Section 1273 of the Internal Revenue Code of 1986, as
amended.


 


ARTICLE THREE


 


REDEMPTION


 


SECTION 3.01.                                    Optional
Redemption.


 


(a)                                  The Notes will
be redeemable, at the Company’s option, in whole or in part from time to time,
at any time prior to November 1, 2015, upon not less than 30 nor more than
60 days’ written notice, at a price equal to 100% of the principal amount
thereof plus the Applicable Premium and accrued but unpaid interest, if any, to
the date of redemption (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment
date).


 


(b)                                 In addition,
the Company may redeem the Notes at its option, in whole or in part, upon not
less than 30 nor more than 60 days’ written notice to the Holders, at the
following redemption prices (expressed as percentages of the principal amount thereof)
if redeemed during the 12-month period commencing on November 1 of the
year set forth below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2015

  	
   

  	
  104.250

  	
  %

  
	
  2016

  	
   

  	
  102.833

  	
  %

  
	
  2017

  	
   

  	
  101.417

  	
  %

  
	
  2018 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition, the Company must pay accrued and unpaid interest on the Notes
redeemed.


 


(c)                                  At any time, or
from time to time, on or prior to November 1, 2013, the Company may, at
its option, use the Net Cash Proceeds of one or more Public Equity Offerings 


 


35

















 


(as defined below) to redeem up to 35% of the
principal amount of the Notes outstanding under this Supplemental Indenture at
a redemption price of 108.500% of the principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of redemption; provided that:


 


(1)                                  at least 65% of
the principal amount of Notes outstanding under this Supplemental Indenture
remains outstanding immediately after any such redemption; and


 


(2)                                  the Company
makes such redemption not more than 90 days after the consummation of any such
Public Equity Offering.


 


SECTION 3.02.                                    [reserved].


 


SECTION 3.03.                                    Selection of
Notes to Be Redeemed.  In the case
of any partial redemption pursuant to Section 3.01(a), (b) or (c),
selection of the Notes for redemption will be made by the Trustee in compliance
with the requirements of the principal securities exchange, if any, on which
the Notes are listed or, if the Notes are not so listed, pro rata,
by lot or by such other method as the Trustee shall deem fair and appropriate; provided that no Note of $2,000 in principal amount or less
shall be redeemed in part; and provided, further, that any redemption following a Public Equity
Offering will be made on a pro rata or on
as nearly a pro rata basis as applicable (subject to
the procedures of the Depository).  The
Trustee shall make the selection from the Notes outstanding and not previously
called for redemption.  Provisions of
this Supplemental Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.  The Trustee shall notify the Company and the
Registrar promptly in writing of the Notes or portions of Notes to be called
for redemption.


 


SECTION 3.04.                                    Notice of
Redemption.  With
respect to any redemption of Notes pursuant to Section 3.01(a), (b) or
(c), at least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first class mail to each Holder
whose Notes are to be redeemed at its registered address.  For Notes that are represented by Global
Notes, notices may be given by delivery of the relevant notices to the
Depository for communication to its Participants.


 


The
notice shall identify the Notes to be redeemed (including CUSIP Number) and
shall state:


 


(i)                                     the Redemption Date;


 


(ii)                                  the Redemption
Price;


 


(iii)                               the name and
address of each Paying Agent;


 


(iv)                              that Notes
called for redemption must be surrendered to the applicable Paying Agent in
order to collect the Redemption Price;


 


(v)                                 that, unless
the Company defaults in making the redemption payment, interest on Notes called
for redemption ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders is to receive payment of the Redemption 


 


36

















 


Price plus accrued interest,
to the Redemption Date upon surrender of the Notes to the Paying Agent;


 


(vi)                              that, in the
case of a redemption pursuant to Section 3.01(a) or Section 3.01(b) of
Definitive Registered Notes, if any such Note is being redeemed in part, the
portion of the principal amount (equal to $2,000 in principal amount or
integral multiples of $1,000 in excess thereof) of such Note to be redeemed and
that, on and after the Redemption Date, upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion thereof with a
minimum denomination of $2,000 will be issued, and that, in the case of such a
partial redemption of Global Notes, the Trustee shall endorse Schedule A to
each Global Note surrendered for redemption to reflect the decrease in
principal amount resulting from such redemption;


 


(vii)                           that, if any
such Notice contains a CUSIP, no representation is being made as to the
correctness of the CUSIP either as printed on the Notes or as contained in the
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Notes; and


 


(viii)                        if the
redemption is conditioned upon any subsequent event, a description of such
condition or event.


 


At
the Company’s request (which request may be revoked by the Company at any time
prior to the time at which the Trustee shall have given such notice to the
Holders), made in writing to the Trustee at least 60 days (or such shorter
period as shall be satisfactory to the Trustee) before a Redemption Date, the
Trustee shall give the notice of redemption in the name and at the expense of
the Company.  If, however, the Company
gives such notice to the Holders, the Company shall concurrently deliver to the
Trustee an Officers’ Certificate stating that such notice has been given.


 


SECTION 3.05.                                    Effect of
Notice of Redemption.  Once notice
of redemption is mailed, Notes called for redemption become due and payable on
the Redemption Date and at the Redemption Price, unless the redemption is
conditioned upon the occurrence of a subsequent event.  Upon surrender of any Notes to the Paying
Agent, unless such redemption is conditioned upon the occurrence of a
subsequent event, such Notes shall be paid at the Redemption Price, plus
accrued interest, to the Redemption Date.


 


Notice
of redemption shall be deemed to be given when mailed, whether or not the
Holder receives the notice.  In any
event, failure to give such notice, or any defect therein, shall not affect the
validity of the proceedings for the redemption of Notes held by Holders to whom
such notice was properly given.


 


ARTICLE FOUR


 


COVENANTS


 


SECTION 4.01.                                    Payment of
Notes.  The Company shall pay the
principal of and interest on the Notes on or before 12:00 noon (New York City
time) one Business Day prior to 


 


37

















 


the dates due for such payments and in the manner
provided in the Notes and this Supplemental Indenture.  An installment of principal or interest shall
be considered paid on the date due if the Trustee or Paying Agent (other than
the Company, a Subsidiary of the Company, or any Affiliate of any of them)
holds on that date money designated for and sufficient to pay the installment
unless the provisions of Article Ten hereof prohibit such payment.  Upon a bankruptcy or reorganization procedure
relative to the Company, the Trustee shall serve as the Paying Agent, if any,
for the Notes.


 


The
Company shall pay interest on overdue principal and interest on overdue
installments of interest, to the extent lawful, at the rate per annum then
borne upon the Notes.


 


SECTION 4.02.                                    Maintenance of
Office or Agency.  The Company
shall maintain the offices and agencies specified in Section 2.04.


 


SECTION 4.03.                                    Limitation on
Incurrence of Additional Indebtedness.  The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume, guarantee, acquire, become liable, contingently or otherwise, with
respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (other than Permitted
Indebtedness); provided, however,
that if no Default or Event of Default shall have occurred and be continuing at
the time of or as a consequence of the incurrence of any such Indebtedness, the
Company and the Guarantors may incur Indebtedness (including, without
limitation, Acquired Indebtedness) and any Restricted Subsidiary of the Company
that is not or will not, upon such incurrence, become a Guarantor may incur
Acquired Indebtedness, in each case if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company is greater than 2.0 to 1.0.


 


The
Company will not, and will not permit any Guarantor to, directly or indirectly,
incur any Indebtedness which by its terms (or by the terms of any agreement
governing such Indebtedness) is expressly subordinated in right of payment to
any other Indebtedness of the Company or such Guarantor, as the case may be,
unless such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate to the Notes or the
applicable Guarantee, as the case may be, to the same extent and in the same
manner as such Indebtedness is subordinated to other Indebtedness of the
Company or such Guarantor, as the case may be. 
For purposes of the foregoing, no Indebtedness will be deemed to be
subordinated in right of payment to any other Indebtedness of the Company or
any Guarantor solely by virtue of such Indebtedness being unsecured or by
virtue of the fact that the holders of such Indebtedness have entered into one
or more intercreditor agreements giving one or more of such holders priority
over the other holders in the collateral held by them.


 


SECTION 4.04.                                    RESERVED.


 


SECTION 4.05.                                    Limitation on
Restricted Payments.


 


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


 


38

















 


(1)                                  declare or pay
any dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Company) on or in respect of shares
of the Company’s Capital Stock to holders of such Capital Stock;


 


(2)                                  purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Company or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock;


 


(3)                                  make any
principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value, earlier than one year prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Indebtedness; or


 


(4)                                  make any
Investment (other than Permitted Investments)


 


(each
of the foregoing actions set forth in clauses (1), (2), (3) and (4) being
referred to as a “Restricted Payment”), if at the time of such
Restricted Payment or immediately after giving effect thereto,


 


(i)                                     a Default or an
Event of Default shall have occurred and be continuing; or


 


(ii)                                  the Company is
not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.03; or


 


(iii)                               the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined in
good faith by the Board of Directors of the Company) shall exceed the sum of:


 


(w)                               50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss) of the Company earned subsequent to the Prior
Issue Date and on or prior to the date the Restricted Payment occurs (the “Reference
Date”) (treating such period as a single accounting period); plus


 


(x)                                   100% of the aggregate net
cash proceeds received by the Company from any Person (other than a Subsidiary
of the Company) from the issuance and sale subsequent to the Prior Issue Date
and on or prior to the Reference Date of Qualified Capital Stock of the
Company; plus


 


(y)                                 without duplication of any
amounts included in clause (iii)(x) above, 100% of the aggregate net cash
proceeds of any equity contribution received by the Company from a holder of
the Company’s Capital Stock (excluding, in the case of clauses (iii)(x) and
(y), any net cash proceeds from a Public Equity Offering to the extent used to
redeem the Notes in compliance with the provisions set forth under Section 3.01);
plus


 


39

















 


(z)                                   without duplication, the sum
of:


 


(1)                                  the aggregate amount
returned in cash on or with respect to Investments (other than Permitted
Investments) made subsequent to the Prior Issue Date whether through interest
payments, principal payments, dividends or other distributions or payments;


 


(2)                                  the net cash proceeds
received by the Company or any of its Restricted Subsidiaries from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of the Company); and


 


(3)                                  upon redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary (except to the extent the
Investment constituted a Permitted Investment), the fair market value of such
Subsidiary;


 


provided, however, that
the sum of clauses (z) (1), (2) and (3) above shall not exceed
the aggregate amount of all such Investments made subsequent to the Prior Issue
Date.


 


(b)                                 Notwithstanding
the foregoing, the provisions set forth in the immediately preceding paragraph
do not prohibit:


 


(1)                                  the payment of
any dividend within 60 days after the date of declaration of such dividend if
the dividend would have been permitted on the date of declaration;


 


(2)                                  if no Default
or Event of Default shall have occurred and be continuing, the acquisition of
any shares of Capital Stock of the Company, either (i) solely in exchange
for shares of Qualified Capital Stock of the Company or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Subsidiary of the Company) of shares of Qualified Capital Stock of
the Company;


 


(3)                                  if no Default
or Event of Default shall have occurred and be continuing, the acquisition of
any Indebtedness of the Company or a Guarantor that is subordinate or junior in
right of payment to the Notes or such Guarantor’s Guarantee, as the case may
be, either (i) solely in exchange for shares of Qualified Capital Stock of
the Company, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
(a) shares of Qualified Capital Stock of the Company or
(b) Refinancing Indebtedness;


 


(4)                                  if no Default
or Event of Default shall have occurred and be continuing, repurchases by the
Company of Common Stock of the Company (or options or warrants to purchase such
Common Stock) from directors, officers and employees of the Company or any of
its Subsidiaries or their authorized representatives upon the death,
disability, retirement or termination of employment of such directors, officers
or employees, in an aggregate amount not to exceed $2.5 million in any calendar
year;


 


40

















 


(5)                                  if no Default
or Event of Default shall have occurred and be continuing, other Restricted
Payments in an amount not to exceed $15.0 million;


 


(6)                                  in the event of
a Change of Control, and if no Default or Event of Default shall have occurred
and be continuing, the payment, purchase, redemption, defeasance or other
acquisition or retirement of Subordinated Indebtedness of the Company or any
Guarantor, in each case at a purchase price not greater than 101% of the
principal amount of such Subordinated Indebtedness, plus accrued and unpaid
interest thereon; provided, however,
that prior to such payment, purchase, redemption, defeasance or other
acquisition or retirement, the Company (or a third party to the extent
permitted by the Indenture) has made a Change of Control Offer with respect the
notes offered hereby as a result of such Change of Control and has repurchased
all notes validly tendered and not withdrawn in connection with such Change of
Control Offer;


 


(7)                                  in the event of
an Asset Sale that requires the Company to offer to repurchase notes pursuant
to the covenant described under “Limitation on Asset Sales,” and if no Default
or Event of Default shall have occurred and be continuing, the payment,
purchase, redemption, defeasance or other acquisition or retirement of
Subordinated Indebtedness of the Company or any Guarantor, in each case at a
purchase price not greater than 100% of the principal amount of such
Subordinated Indebtedness, plus accrued and unpaid interest thereon; provided, however, that (A) prior
to such payment, purchase, redemption, defeasance or other acquisition or
retirement, the Company has made an offer with respect to the notes offered
hereby pursuant to the provisions of the covenant described under Section 4.10
and has repurchased all notes validly tendered and not withdrawn in connection
with such offer and (B) the aggregate amount of all such payments,
purchases, redemptions, defeasances or other acquisitions or retirements of all
such Subordinated Indebtedness may not exceed the amount of the Net Cash
Proceeds Amount remaining after the Company has complied with clause (3) of
Section 4.10; and


 


(8)                                  repurchases of
Common Stock deemed to occur upon the exercise of stock options if the Common
Stock represents a portion of the exercise price thereof.


 


In
determining the aggregate amount of Restricted Payments made subsequent to the
Prior Issue Date in accordance with Section 4.05(a)(4)(iii), amounts
expended pursuant to Section 4.05(b) (1), (2)(ii), 3(ii)(a), (4),
(5), (6) and (7) shall be included in such calculation.


 


SECTION 4.06.                                    Limitation on
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company
shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to:


 


(1)                                  pay dividends
or make any other distributions on or in respect of its Capital Stock;


 


(2)                                  make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or


 


41

















 


(3)                                  transfer any of
its property or assets to the Company or any other Restricted Subsidiary of the
Company;


 


in
each case except for such encumbrances or restrictions existing under or by
reason of:


 


(a)                                  applicable law;


 


(b)                                 the Notes or
this Supplemental Indenture;


 


(c)                                  customary
non-assignment provisions of any contract or any lease governing a leasehold
interest of any Restricted Subsidiary of the Company;


 


(d)                                 any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired;


 


(e)                                  agreements
existing on the Issue Date to the extent and in the manner such agreements are
in effect on the Issue Date;


 


(f)                                    the Credit
Agreement or an agreement governing other Pari Passu Indebtedness permitted to
be incurred under this Supplemental Indenture; provided
that, with respect to any agreement governing such other Pari Passu
Indebtedness, the provisions relating to such encumbrance or restriction are no
less favorable to the Company in any material respect as determined by the
Board of Directors of the Company in its reasonable and good faith judgment
than the provisions contained in the Credit Agreement as in effect on the Issue
Date;


 


(g)                                 restrictions on
the transfer of assets subject to any Lien permitted under this Supplemental
Indenture imposed by the holder of such Lien;


 


(h)                                 restrictions
imposed by any agreement to sell assets or Capital Stock permitted under this
Supplemental Indenture to any Person pending the closing of such sale;


 


(i)                                     restrictions
imposed by agreements governing obligations of Foreign Restricted Subsidiaries
which are permitted under this Supplemental Indenture;


 


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


 


(k)                                  any Purchase
Money Note or other Indebtedness or other contractual requirements of a
Securitization Entity in connection with a Qualified Securitization
Transaction; provided that such restrictions
apply only to such Securitization Entity;


 


42

















 


(l)                                     customary
provisions in joint venture agreements and other similar agreements (in each
case relating solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of business; and


 


(m)                               an agreement
governing Indebtedness incurred to Refinance the Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clauses (b) and (d) through
(l) above; provided, however,
that the provisions relating to such encumbrance or restriction contained in
any such agreements are no less favorable to the Company in any material
respect as determined by the Board of Directors of the Company in their
reasonable and good faith judgment than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such clauses (b) and
(d) through (l) above.


 


SECTION 4.07.                                    Limitation on
Preferred Stock of Restricted Subsidiaries.  The Company shall not permit any of its Restricted
Subsidiaries that are not Guarantors to issue any Preferred Stock (other than
to the Company or to a Wholly Owned Restricted Subsidiary of the Company) or
permit any Person (other than the Company or a Wholly Owned Restricted
Subsidiary of the Company) to own any Preferred Stock of any Restricted
Subsidiary of the Company that is not a Guarantor.


 


SECTION 4.08.                                    Limitation on
Transactions with Affiliates.


 


(a)                                  The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or permit to exist any transaction or series of
related transactions (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each, an “Affiliate Transaction”),
other than (x) Affiliate Transactions permitted under Section 4.08(b) and
(y) Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction at such
time on an arm’s-length basis from a Person that is not an Affiliate of the
Company or such Restricted Subsidiary; provided that (i) if any such
Affiliate Transaction (or a series of related Affiliate Transactions which are
similar or part of a common plan) involves aggregate payments or other property
with a fair market value in excess of $10.0 million, the Company or such
Restricted Subsidiary, as the case may be, shall file with the Trustee an
Officers’ Certificate certifying that such Affiliate Transaction complies with
this Section 4.08 and (ii) if any such Affiliate Transaction (or a
series of related Affiliate Transactions which are similar or part of a common
plan) involves aggregate payments or other property with a fair market value in
excess of $25.0 million, the Company or such Restricted Subsidiary, as the case
may be, shall file with the Trustee a Board Resolution of the Board of
Directors of the Company or such Restricted Subsidiary, as the case may be, set
forth in an Officers’ Certificate certifying that such Affiliate Transaction
complies with this Section 4.08 and that such Affiliate Transaction has
been approved by a majority of the disinterested members of the Board of
Directors of the Company or such Restricted Subsidiary, as the case may be.


 


(b)                                 The
restrictions set forth in Section 4.08(a) shall not apply to:


 


43
















 


(1)                                  reasonable fees
and compensation paid to and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Restricted Subsidiary
of the Company as determined in good faith by the Company’s Board of Directors
or senior management;


 


(2)                                  transactions
exclusively between or among the Company and any of its Restricted Subsidiaries
or exclusively between or among such Restricted Subsidiaries; provided such
transactions are not otherwise prohibited by this Supplemental Indenture;


 


(3)                                  any agreement
as in effect as of the Issue Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) or any
replacement agreement thereto so long as any such amendment or replacement agreement
is not more disadvantageous to the Holders in any material respect than the
original agreement as in effect on the Issue Date;


 


(4)                                  Restricted
Payments or Permitted Investments permitted by this Supplemental Indenture; and


 


(5)                                  transactions
between the Company or any of its Subsidiaries and any Securitization Entity in
connection with a Qualified Securitization Transaction, in each case provided
that such transactions are not otherwise prohibited by this Supplemental
Indenture.


 


SECTION 4.09.                                    Limitation on
Liens.  The Company shall not, and
shall not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Liens of any
kind against or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired after the
Issue Date, or any proceeds therefrom, or assign or otherwise convey any right
to receive income or profits therefrom unless:


 


(1)                                  in the case of
Liens securing Subordinated Indebtedness, the Notes or the Guarantees are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; and


 


(2)                                  in all other
cases, the Notes or Guarantees, as the case may be, are equally and ratably secured,
except for:


 


(a)                                  Liens existing
as of the Issue Date to the extent and in the manner such Liens are in effect
on the Issue Date;


 


(b)                                 (i) Liens
securing existing or future borrowings under Credit Facilities incurred
pursuant to clause (2) of the definition of “Permitted Indebtedness,” (ii) Liens
securing Indebtedness incurred pursuant to the first paragraph of Section 4.03;
provided that, with respect to this
subclause (ii), at the time of incurrence and after giving pro forma effect
thereto, the Consolidated Secured Debt Ratio would be no greater than 3.50 to
1.0 and (iii) Liens securing 


 


44

















 


Indebtedness incurred
pursuant to clause (19) of the definition of “Permitted Indebtedness;”


 


(c)                                  Liens securing
the Notes and the Guarantees;


 


(d)                                 Liens of the
Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any
Restricted Subsidiary of the Company and Liens on assets of the Company in
favor of a Wholly Owned Restricted Subsidiary that is a Guarantor;


 


(e)                                  Liens securing
Refinancing Indebtedness which is incurred to Refinance any Indebtedness that
has been secured by a Lien permitted under this Supplemental Indenture and that
has been incurred without violation of this Supplemental Indenture; provided, however, that
such Liens:  (i) are no less
favorable to the Holders and are not more favorable to the lienholders, in each
case in any material respect, with respect to such Liens than the Liens in
respect of the Indebtedness being Refinanced; and (ii) do not extend to or
cover any categories of property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; and


 


(f)                                    Permitted
Liens.


 


SECTION 4.10.                                    Limitation on
Asset Sales.


 


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


 


(1)                                  the Company or
the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Company’s Board of Directors);


 


(2)                                  at least 75% of
the consideration received by the Company or the Restricted Subsidiary, as the
case may be, from such Asset Sale shall be in the form of cash or Cash
Equivalents and shall be received at the time of such disposition. For purposes
of this clause (2) each of the following shall be deemed to be cash:


 


(a)                                  any
liabilities, as shown on the most recent consolidated balance sheet of the
Company or any Restricted Subsidiary (or would be shown on such consolidated
balance sheet as of the date of such Asset Sale), other than contingent
liabilities and liabilities that are by their terms subordinated to the notes
or any Guarantee, or any Guarantees of Indebtedness of Persons other than the
Company or any Restricted Subsidiary, that are assumed by the person acquiring
such assets to the extent that the Company and its Restricted Subsidiaries have
no further liability with respect to such liabilities;


 


45

















 


(b)                                 any securities,
notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are converted by the Company or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash
or Cash Equivalents received) within 90 days after receipt; and


 


(c)                                  any Designated Non-Cash
Consideration received by the Company or its Restricted Subsidiaries in such
Asset Sale having an aggregate Fair Market Value, taken together with all other
Designated Non-Cash Consideration received pursuant to this clause (c) that
is at that time outstanding in the aggregate, not to exceed the greater of
(i) $35 million and (ii) 1.0% of the Company’s Consolidated
Total Assets, in each case at the time of receipt of such Designated Non-Cash
Consideration, with the Fair Market Value of each item of Designated Non-Cash
Consideration measured at the time received and without giving effect to
subsequent changes in value;


 


(3)                                  upon the
consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset
Sale within 365 days of receipt thereof either:


 


(a)                                  to permanently reduce
Indebtedness (x) under any Credit Facility and, in the case of any such
Indebtedness under any revolving credit facility, effect a permanent reduction
in the availability under such revolving credit facility (provided, however
that, if there shall not be any term loan Indebtedness outstanding under any
Credit Facility, in the case of such Indebtedness under any revolving credit
facility such prepayment shall not be required to effect a permanent reduction
in the availability under such revolving credit facility) or (y) of a
Subsidiary that does not guarantee the Notes;


 


(b)                                 to make 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 (including Capital Stock) that will be used in the
business of the Company and its Restricted Subsidiaries as existing on the
Issue Date or in businesses reasonably related thereto (“Replacement Assets”);
or


 


(c)                                  a combination of prepayment
and investment permitted by the foregoing clauses (3)(a) and (3)(b).


 


(b)                                         On the 366th
day after an Asset Sale or such earlier date, if any, as the Board of Directors
of the Company or of such Restricted Subsidiary determines not to apply the Net
Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and
(3)(c) of Section 4.10(a) (each, a “Net Proceeds Offer
Trigger Date”), such aggregate amount of Net Cash Proceeds that have not
been applied on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or
the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”)
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent
required by the terms of any Pari Passu Indebtedness, to all holders of such
Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”)
not less than 30 nor 


 


46

















 


more than 45 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari
Passu Indebtedness) on a pro rata basis,
the maximum amount of Notes and Pari Passu Indebtedness that may be purchased
with the Net Proceeds Offer Amount at a price equal to 100% of the principal
amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued
and unpaid interest thereon, if any, to the date of purchase; provided, however, that
if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with
any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this Section 4.10.


 


The
Company may defer the Net Proceeds Offer until there is an aggregate unutilized
Net Proceeds Offer Amount equal to or in excess of $25.0 million resulting
from one or more Asset Sales (at which time, the entire unutilized Net Proceeds
Offer Amount, and not just the amount in excess of $25.0 million, shall be
applied as required pursuant to this Section 4.10(b)).


 


In
the event of the transfer of substantially all (but not all) of the property
and assets of the Company and its Restricted Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.01, which transaction
does not constitute a Change of Control, the successor entity shall be deemed
to have sold the properties and assets of the Company and its Restricted
Subsidiaries not so transferred for purposes of this Section 4.10 and
shall comply with the provisions of this Section 4.10 with respect to such
deemed sale as if it were an Asset Sale. 
In addition, the fair market value of such properties and assets of the
Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net
Cash Proceeds for purposes of this Section 4.10.


 


(c)                                          Notwithstanding
Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries
will be permitted to consummate an Asset Sale without complying with such
Sections to the extent that:


 


(1)                                  at least 75% of
the consideration for such Asset Sale constitutes Replacement Assets; and


 


(2)                                  such Asset Sale
is for fair market value; provided that
any consideration not constituting Replacement Assets received by the Company
or any of its Restricted Subsidiaries in connection with any Asset Sale
permitted to be consummated under this Section 4.10(c) shall
constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and
(b).


 


Each
Net Proceeds Offer will be mailed to the record Holders as shown on the
register of Holders within 25 days following the Net Proceeds Offer Trigger
Date, with a copy to the Trustee, and shall comply with the procedures set
forth in this Supplemental Indenture. 
The notice to the Holders shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer.  Such notice shall state:


 


47

















 


(1)                                  that the Net
Proceeds Offer is being made pursuant to this Section 4.10 and that
(subject to the provisions hereof) all Notes tendered will be accepted for
payment;


 


(2)                                  the purchase
price (including the amount of accrued interest) and the purchase date (which
shall be the Net Proceeds Offer Payment Date);


 


(3)                                  that any Note
not tendered will continue to accrue interest if interest is then accruing;


 


(4)                                  that, unless
the Company defaults in making payment therefor, any Note accepted for payment
pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net
Proceeds Offer Payment Date;


 


(5)                                  that Holders
electing to have a Note purchased pursuant to a Net Proceeds Offer will be
required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
business day prior to the Net Proceeds Offer Payment Date;


 


(6)                                  that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than 5:00 p.m., New York City time, on the second Business Day
preceding the Net Proceeds Offer Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Notes the
Holder delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased; and


 


(7)                                  the
circumstances and relevant facts regarding such Net Proceeds Offer.


 


Upon
receiving notice of the Net Proceeds Offer, Holders may elect to tender their
Notes in whole or in part in integral multiples of $1,000 in exchange for
cash.  To the extent Holders properly
tender Notes and holders of Pari Passu Indebtedness properly tender such Pari
Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the
tendered Notes and Pari Passu Indebtedness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate
amount equal to the Net Proceeds Offer Amount (if any).  A Net Proceeds Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by law.


 


The
Company shall comply with the requirements of 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 connection with the
repurchase of Notes pursuant to a Net Proceeds Offer.  To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.10, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 4.10 by virtue thereof.


 


48

















 


SECTION 4.11.                                    Repurchase of
Notes upon a Change of Control.


 


(a)                                  Upon the
occurrence of a Change of Control, each Holder will have the right to require
that the Company purchase all or a portion of such Holder’s Notes pursuant to
the offer described below (the “Change of Control Offer”), at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase.


 


Within
30 days following the date upon which the Change of Control occurred, the
Company must send, by first class mail, a notice to each Holder, with a copy to
the Trustee, which notice shall govern the terms of the Change of Control
Offer.  Such notice shall state, among
other things, the purchase date, which, unless otherwise required by law, must
be no earlier than 30 days nor later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”).  The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer. 
Such notice shall state:


 


(1)                                  that the Change
of Control Offer is being made pursuant to this Section 4.11 and that all
Notes tendered will be accepted for payment;


 


(2)                                  the purchase
price (including the amount of accrued interest) and the purchase date (which
shall be no earlier than the Change of Control Payment Date);


 


(3)                                  that any Note
not tendered will continue to accrue interest if interest is then accruing;


 


(4)                                  that, unless
the Company defaults in making payment therefor, any Note accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;


 


(5)                                  that Holders
electing to have a Note purchased pursuant to a Change of Control Offer will be
required to (a) surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date and (b) if
the Note is a Global Note, to comply with applicable DTC procedures;


 


(6)                                  that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than 5:00 p.m., New York City time, on the second Business Day
preceding the Change of Control Payment Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Notes
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and


 


(7)                                  the
circumstances and relevant facts regarding such Change of Control.


 


(b)                                         The Company
shall comply with the requirements of 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 connection with the repurchase of Notes
pursuant to a Change of Control Offer. 
To the extent that the provisions of any securities laws or regulations 


 


49

















 


conflict with this Section 4.11, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.11 by
virtue thereof.


 


Notwithstanding
anything to the contrary in this section, 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 set forth in this section and purchases all
notes validly tendered and not withdrawn under such Change of Control Offer.


 


SECTION 4.12.                                    Additional
Subsidiary Guarantees.  If
any existing or future Domestic Restricted Subsidiary shall, after the Issue
Date, guarantee any Indebtedness of the Company or a Guarantor, then the
Company shall cause such Domestic Restricted Subsidiary to:


 


(1)                                  execute and
deliver to the Trustee a supplemental indenture in form satisfactory to the
Trustee pursuant to which such Domestic Restricted Subsidiary shall
unconditionally guarantee all of the Company’s obligations under the Notes and
this Supplemental Indenture on the terms set forth herein; and


 


(2)                                  deliver to the
Trustee an Officers’ Certificate and an Opinion of Counsel that such
supplemental indenture has been duly authorized, executed and delivered by such
Domestic Restricted Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Domestic Restricted Subsidiary.


 


Thereafter,
such Domestic Restricted Subsidiary shall be a Guarantor for all purposes of
this   Indenture until such Domestic
Restricted Subsidiary is released from its Guarantee as provided in this
Supplemental Indenture.


 


SECTION 4.13.                                    Existence.  Subject to Article Five of this
Supplemental Indenture, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and the
existence of each Restricted Subsidiary in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and the
rights (whether pursuant to charter, partnership certificate, agreement,
statute or otherwise), material licenses and franchises of the Company and each
Restricted Subsidiary; provided that
the Company shall not be required to preserve any such right, license or
franchise, or the existence of any Restricted Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole.


 


SECTION 4.14.                                    Payment of
Taxes and Other Claims.  The
Company shall pay or discharge and shall cause each of its Restricted
Subsidiaries to pay or discharge, or cause to be paid or discharged, before the
same shall become delinquent (i) all material taxes, assessments and
governmental charges levied or imposed upon (a) the Company or any such
Restricted Subsidiary, (b) the income or profits of any such Restricted
Subsidiary which is a corporation or (c) the property of the Company or
any such Restricted Subsidiaries and (ii) all material lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of the Company or any such Restricted Subsidiary; provided that neither the Company 


 


50

















 


nor any such Restricted Subsidiary shall be required
to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP.


 


SECTION 4.15.                                    Reports to
Holders.  Whether or not required by the
rules and regulations of the Commission, so long as any Notes are
outstanding, the Company shall furnish the Holders of Notes and to the Trustee:


 


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


 


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


 


In
addition, whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and reports
with the Commission for public availability within the time periods specified
in the Commission’s rules and regulations (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request.  In addition, the Company has agreed that, for
so long as any Notes remain outstanding, it shall furnish to the Holders, the
Trustee 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.


 


The
Trustee shall have no responsibility whatsoever to determine if any such
filings have taken place, provided, however, that the Company shall promptly
notify the Trustee in writing whenever it shall have made such filings with the
Commission.  Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


SECTION 4.16.                                    Conduct of
Business.  The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, engage
in any businesses that are not the same, 


 


51

















 


similar or reasonably related to the businesses in
which the Company and its Restricted Subsidiaries are engaged on the Issue
Date.


 


SECTION 4.17.                                    Waiver of Stay,
Extension or Usury Laws.  Each
of the Company and any Guarantor covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company or
such Guarantor from paying all or any portion of the principal of, premium, if
any, or interest on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or that may affect the covenants or the
performance of this Supplemental Indenture; and (to the extent that it may lawfully
do so) each of the Company and any Guarantor hereby expressly waives all
benefit or advantage of any such law and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.


 


SECTION 4.18.                                    Compliance
Certificates.


 


(a)                                  The Company shall deliver to the Trustee within 90
days after the end of each fiscal year, commencing with the fiscal year ending
December 31, 2010, an Officers’ Certificate (which shall be signed by the
Chief Financial Officer of the Company) stating (i) that, a review has
been conducted of the activities of the Company and its Restricted Subsidiaries
under the supervision of the signing Officer with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under this
Supplemental Indenture and the Base Indenture, and (ii) that, to the best knowledge of the Officer signing such
certificate, the Company has kept, observed, performed and fulfilled each and
every covenant and condition contained in this Supplemental Indenture and is not in default in the performance or observance
(without regard to any grace period or notice requirements) of any of the
terms, provisions, conditions and covenants hereof (or, if a Default or Event
of Default shall have occurred, specifying each such Default or Event of
Default and describing its status and what action the Company is taking or
proposes to take with respect thereto).


 


(b)                                         The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly after any Officer of the Company
becomes aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.


 


SECTION 4.19.                                    Maintenance of
Properties.  The Company
shall cause all material properties owned by it or any Restricted Subsidiary or
used or held for use 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 (ordinary wear and tear and damage by casualty excepted) and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, 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 4.19 shall prevent the Company from
discontinuing the maintenance of any such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of 


 


52

















 


the business of the Company and the Restricted
Subsidiaries as a whole and not disadvantageous in any material respect to the
Holders.


 


SECTION 4.20.                                    Insurance.  The Company shall maintain, and shall cause
its Restricted Subsidiaries to maintain, insurance with carriers believed by
the Company to be responsible, against such risks and in such amounts, and with
such deductibles, retentions, self-insured amounts and coinsurance provisions,
as the Company believes are customarily carried by similar businesses, of
similar size, including as appropriate general liability, property and casualty
loss and interruption of business insurance.


 


SECTION 4.21.                                    Changes in
Covenants when Notes Rated Investment Grade.  Beginning on the date that:


 


(a)                                  the Notes have
an Investment Grade Rating; and


 


(b)                                 no Default or
Event of Default shall have occurred and be continuing,


 


and
ending on the date (the “Reversion Date”) that either Rating Agency
ceases to have Investment Grade Ratings on the Notes (such period of time, the “Suspension
Period”), the following Sections of this Supplemental Indenture will no
longer be applicable to the Notes:


 


(1)                                  Section 4.03;


 


(2)                                  Section 4.05;


 


(3)                                  Section 4.06;


 


(4)                                  Section 4.08;


 


(5)                                  Section 4.10;
and


 


(6)                                  Section 5.01(a)(2).


 


During a Suspension Period, the Company’s Board of Directors may not
designate any of its Subsidiaries as Unrestricted Subsidiaries.


 


On the Reversion Date, all Indebtedness incurred during the Suspension
Period will be classified to have been incurred pursuant to and permitted under
the Consolidated Fixed Charge Coverage Ratio or one of the clauses set forth in
the definition of Permitted Indebtedness (to the extent such Indebtedness would
be permitted to be incurred thereunder as of the Reversion Date and after
giving effect to Indebtedness incurred prior to the Suspension Period and
outstanding on the Reversion Date). To the extent any Indebtedness would not be
permitted to be incurred pursuant to the Consolidated Fixed Charge Coverage
Ratio or any of the clauses set forth in the definition of Permitted
Indebtedness, such Indebtedness will be deemed to have been outstanding on the
Issue Date, so that it is classified as Permitted Indebtedness under
clause (3) of the definition of “Permitted Indebtedness” and
permitted to be refinanced under clause (17) of the definition of “Permitted
Indebtedness.”


 


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Notwithstanding
the fact that covenants suspended during a Suspension Period may be reinstated,
no Default or Event of Default will be deemed to have occurred as a result of a
failure to comply with the covenants during the Suspension Period or at the time
the covenants are reinstated.


 


ARTICLE FIVE


 


SUCCESSOR CORPORATION


 


SECTION 5.01.                                    Merger,
Consolidation and Sale of Assets.


 


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


 


(1)                                  either:


 


(A)                              the Company shall be the
surviving or continuing corporation; or


 


(B)                                the Person (if other than
the Company) formed by such consolidation or into which the Company is merged
or the Person which acquires by sale, assignment, transfer, lease, conveyance
or other disposition the properties and assets of the Company and of the
Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving
Entity”):


 


(x)                                   shall be an entity organized
and validly existing under the laws of any country that is a member of the
European Union as currently constituted, Canada or any province thereof, the
United States or any State thereof or the District of Columbia; provided that in the case where the Surviving Entity is not
a corporation, a co-obligor of the Notes is a corporation; and


 


(y)                                 shall expressly assume, by
supplemental indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, this Supplemental Indenture on the
part of the Company to be performed or observed;


 


(2)                                  immediately
after giving effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, (a) shall
have a Consolidated Net Worth equal to or greater than the 


 


54

















 


Consolidated
Net Worth of the Company immediately prior to such transaction and
(b) shall be able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.03;


 


(3)                                  immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by Section 5.01(a)(1)(B)(y) above (including,
without limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection with
or in respect of the transaction), no Default or Event of Default shall have
occurred or be continuing; and


 


(4)                                  the Company or
the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of this
Supplemental Indenture and the Base Indenture and that all conditions precedent
in this Supplemental Indenture relating to such transaction have been
satisfied.


 


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


 


(b)                                         Upon any
consolidation, combination or merger or any transfer of all or substantially
all of the assets of the Company in accordance with Section 5.01(a) in
which the Company is not the continuing corporation, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Supplemental Indenture and the Notes with the same effect as if such surviving
entity had been named as such and all financial information and reports
required by this Supplemental Indenture shall be provided by and for such
Surviving Entity.


 


(c)                                          Each Guarantor
(other than any Guarantor whose Guarantee is to be released in accordance with
the terms of its Guarantee and this Supplemental Indenture in connection with
any transaction complying with Section 4.10) shall not, and the Company
shall not cause or permit any Guarantor to, consolidate with or merge with or
into any Person other than the Company or any other Guarantor unless:


 


(1)                                  the entity formed
by or surviving any such consolidation or merger (if other than the Guarantor)
or to which such sale, lease, conveyance or other disposition shall have been
made is an entity organized and existing under the laws of any country that is
a member of the European Union as currently constituted, Canada or any province
thereof or of the United States or any State thereof or the District of
Columbia;


 


(2)                                  such entity
assumes by supplemental indenture all of the obligations of the Guarantor on
its Guarantee;


 


55

















 


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


 


(4)                                  immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma basis, the Company
could satisfy Section 5.01(a)(2).


 


Any
merger or consolidation of a Guarantor with and into the Company (with the
Company being the surviving entity) or another Guarantor that is a Wholly Owned
Restricted Subsidiary of the Company need only comply with Section 5.01(a)(4).


 


SECTION 5.02.                                    Successor
Substituted.  In the
event of a sale, assignment, transfer, conveyance or other disposition (other
than a lease) described in and complying with the conditions listed in
Section 5.01 in which the Company is not the Surviving Entity and the
Surviving Entity assumes all the obligations of the Company under the Notes and
this Supplemental Indenture, the Surviving Entity will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
such agreements and the Company shall be discharged from its obligations under
the Notes and this Supplemental Indenture.


 


Article 11
of the Base Indenture shall not apply to the Notes.


 


ARTICLE SIX


 


DEFAULT AND REMEDIES


 


SECTION 6.01.                                    Events of
Default.


 


(a)                                  The following
events are defined as “Events of Default”:


 


(1)                                  the failure to
pay interest on any Notes when the same becomes due and payable and the default
continues for a period of 30 days;


 


(2)                                  the failure to
pay the principal on any Notes, when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer) on the date specified for such payment in the applicable offer to
purchase;


 


(3)                                  a default in
the observance or performance of any other covenant or agreement contained in
this Supplemental Indenture which default continues for a period of 45 days
after the Company receives written notice specifying the default (and demanding
that such default be remedied) from the Trustee or the Holders of at least 25%
of the outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.01, which will constitute an Event of
Default with such notice requirement but without such passage of time
requirement);


 


(4)                                  the failure to
pay at final stated maturity (giving effect to any applicable grace periods and
any extensions thereof) the principal amount of any Indebtedness of the 


 


56

















 


Company
or any Restricted Subsidiary of the Company, or the acceleration of the final
stated maturity of any such Indebtedness (which acceleration is not rescinded,
annulled or otherwise cured within 20 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the aggregate
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal at final
stated maturity or which has been accelerated (in each case with respect to
which the 20-day period described above has passed), aggregates $25.0 million
or more at any time;


 


(5)                                  one or more
judgments in an aggregate amount in excess of $25.0 million shall have been
rendered against the Company or any of its Significant Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable;


 


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


 


(i)                                     commences a
voluntary case,


 


(ii)                                  consents to the
entry of an order for relief against it in an involuntary case,


 


(iii)                               consents to the
appointment of a Custodian of it or for all or substantially all of its assets,
or


 


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


 


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


 


(i)                                     is for relief
against the Company or any of its Significant Subsidiaries as debtor in an
involuntary case,


 


(ii)                                  appoints a
Custodian of the Company or any of its Significant Subsidiaries or a Custodian
for all or substantially all of the assets of the Company or any Restricted
Subsidiary, or


 


(iii)                               orders the
liquidation of the Company or any of its Significant Subsidiaries, and in each
case, the order or decree remains unstayed and in effect for 60 days; or


 


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


 


57

















 


(b)                                         If an Event of
Default (other than an Event of Default specified in Section 6.01(a)(6) or
6.01 (a)(7) above with respect to the Company) shall occur and be
continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Notes may declare the principal of and accrued interest on all the
Notes to be due and payable by notice in writing to the Company and the Trustee
(if sent by the Holders) specifying the applicable Event of Default and that it
is a “notice of acceleration” (the “Acceleration Notice”), and the same
shall become immediately due and payable.


 


If
an Event of Default specified in Section 6.01(a)(6) or 6.01(a)(7) above
with respect to the Company occurs and is continuing, then all unpaid principal
of, and premium, if any, and accrued and unpaid interest on all of the
outstanding Notes 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.


 


(c)                                         At any time
after a declaration of acceleration with respect to the Notes as described in Section 6.01(b),
the Holders of a majority in principal amount of the Notes may rescind and
cancel such declaration and its consequences:


 


(1)                                  if the
rescission would not conflict with any judgment or decree;


 


(2)                                  if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration;


 


(3)                                  to the extent
the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid;


 


(4)                                  if the Company
has paid the Trustee its reasonable compensation and reimbursed the Trustee for
its expenses, disbursements and advances; and


 


(5)                                  in the event of
the cure or waiver of an Event of Default of the type described in
Section 6.01(a)(6) or 6.01(a)(7), the Trustee shall have  received an Officers’ Certificate and an
Opinion of Counsel that such Event of Default has been cured or waived.


 


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


 


The
Holders of a majority in principal amount of the Notes may waive any existing
Default or Event of Default under this Supplemental Indenture, and its
consequences, except a default in the payment of the principal of or interest
on any Notes.


 


Holders
of the Notes may not enforce this Supplemental Indenture or the Notes except as
provided in this Supplemental Indenture and under the TIA.  Subject to the provisions of this
Supplemental Indenture relating to the duties of the Trustee, the Trustee is
under no obligation to exercise any of its rights or powers under this
Supplemental Indenture at the request, order or direction of any of the
Holders, unless such Holders have offered to the Trustee 


 


58

















 


indemnity
satisfactory to it.  Subject to all
provisions of this Supplemental Indenture and applicable law, the Holders of a
majority in aggregate principal amount of the then outstanding Notes 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.


 


SECTION 6.02.                                    Notice of
Defaults.  The Trustee
shall, within 90 days after the occurrence of any Default with respect to the
Notes, give the Holders notice of all uncured Defaults thereunder known to it; provided, however, that,
except in the case of an Event of Default in payment with respect to the Notes
or a Default in complying with Section 5.01, the Trustee shall be
protected in withholding such notice if and so long as a committee of its trust
officers in good faith determines that the withholding of such notice is in the
interest of the Holders.


 


SECTION 6.03.                                    Other Remedies.  If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or
this Supplemental Indenture.


 


The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding.  Holders of the Notes may not enforce this
Supplemental Indenture or the Notes except as provided in Sections 6.02,
6.05, 6.06 and 6.07.


 


SECTION 6.04.                                    Waiver of Past
Defaults.  Subject to
Sections 6.02, 6.07 and 9.02, the Holders of at least a majority in principal
amount of the outstanding Notes, by notice to the Trustee, may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of, premium, if any, or interest on any Note as
specified in clause (a) or (b) of Section 6.01 which cannot be
waived without the consent of the Holder of such Note or in respect of a
covenant or provision of this Supplemental Indenture which cannot be modified
or amended without the consent of the Holder of each outstanding Note
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 Supplemental Indenture;
but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.


 


SECTION 6.05.                                    Control by
Majority.  Subject to
Section 8.02(d) of the Base Indenture, the Holders of a majority in
aggregate principal amount of the Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Supplemental Indenture or that the Trustee
determines is unduly prejudicial to the rights of other Holders or would
involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee.


 


SECTION 6.06.                                    Limitation on
Suits.  A Holder may not pursue any
proceeding, judicial or otherwise, with respect to this Supplemental Indenture
and the Notes or for the appointment of a receiver or trustee, or for any other
remedy hereunder unless:


 


59

















 


(i)                                     the Holder
gives the Trustee written notice of a continuing Event of Default;


 


(ii)                                  the Holders of
at least 25% in aggregate principal amount of outstanding Notes make a written
request to the Trustee to pursue the remedy;


 


(iii)                               such Holder or
Holders offer the Trustee indemnity satisfactory to the Trustee against any
costs, liability or expense;


 


(iv)                              the Trustee
does not comply with the request within 15 days after receipt of the request
and the offer of indemnity; and


 


(v)                                 during such
15-day period, the Holders of a majority in aggregate principal amount of the
outstanding Notes do not give the Trustee a direction that is inconsistent with
the request.


 


However,
such limitations do not apply to a suit instituted by a Holder of any Note for
enforcement of payment of the principal of or interest on such Note on or after
the due date therefor (after giving effect to any grace period specified in
Section 6.01(a) and only with respect to the amount of such missed
payment).


 


For
purposes of Section 6.05 and this Section 6.06, the Trustee shall
comply with TIA Section 316(a) in making any determination of whether
the Holders of the required aggregate principal amount of outstanding Notes
have concurred in any request or direction of the Trustee to pursue any remedy
available to the Trustee or the Holders with respect to this Supplemental
Indenture and the Notes or otherwise under the law.


 


A
Holder may not use this Supplemental Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.


 


SECTION 6.07.                                    Rights of
Holders to Receive Payment.  Notwithstanding any other provision of this
Supplemental Indenture, the right of any Holder of a Note to receive payment of
the principal amount of or interest on, such Note or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the
Notes, shall not be impaired or affected without the consent of such Holder.


 


SECTION 6.08.                                    Collection Suit
by Trustee.  If an Event
of Default in payment of principal, premium or interest specified in clause (1) or
(2) of Section 6.01(a) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor of the Notes for the whole amount of principal,
premium, if any, and accrued interest remaining unpaid, together with interest
on overdue principal and premium and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate specified in the Notes, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.


 


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SECTION 6.09.                                    Trustee May File
Proofs of Claim.  The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.06
of the Base Indenture) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor of the Notes), its creditors or
its property and shall be entitled and empowered to collect and receive any
monies, securities or other property payable or deliverable upon conversion or
exchange of the Notes or upon 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 to it for the reasonable compensation expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 8.06 of the Base Indenture.  Nothing herein contained shall be deemed to
empower the Trustee to authorize or consent to, or accept or adopt on behalf of
any Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


SECTION 6.10.                                    Priorities.  If the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order:


 


First:  to the Trustee for all
amounts due under Section 8.06 of the Base Indenture and any receiver,
manager, administrative receiver, liquidator or agent appointed subject to this
Supplemental Indenture;


 


Second:  to Holders for amounts
then due and unpaid for principal of, premium, if any, and interest on the
Notes 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 Notes for principal, premium, if any, and
interest, respectively; and


 


Third:  to the Company or as a
court of competent jurisdiction may direct.


 


The
Trustee, upon prior written notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10.


 


SECTION 6.11.                                    Undertaking for
Costs.  In any suit for the
enforcement of any right or remedy under this Supplemental Indenture or in any
suit against the Trustee for any action taken 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 the suit, and the court may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in the suit
having due regard to the merits and good faith of the claims or defenses made
by the party litigant.  This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the outstanding
Notes.


 


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SECTION 6.12.                                    Restoration of
Rights and Remedies.  If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Supplemental 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, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Company, the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.


 


SECTION 6.13.                                    Rights and
Remedies Cumulative.  Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Notes in Section 3.07 of the Base
Indenture, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


SECTION 6.14.                                    Delay or
Omission Not Waiver.  No delay or
omission of the Trustee or of any Holder 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 Six 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.


 


Article 7
of the Base Indenture shall not apply to the Notes.


 


ARTICLE SEVEN


 


RESERVED




ARTICLE EIGHT


 


DISCHARGE OF INDENTURE


 


SECTION 8.01.                                    Termination of
Company’s Obligations. 
Except as otherwise provided in this Section 8.01, the Company may
terminate its and the Guarantors’ obligations under this Supplemental Indenture
and the Notes if:


 


(1)                                  either:


 


(a)                                  all the Notes
theretofore authenticated and delivered (except lost, stolen or destroyed Notes
that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in 


 


62

















 


trust by the Company and
thereafter repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or


 


(b)                                 all Notes not
theretofore delivered to the Trustee for cancellation have become due and
payable, and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Notes to
the date of deposit 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 all other sums payable under this Supplemental Indenture by the Company;
and


 


(3)                                  the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
stating that all conditions precedent under this Supplemental Indenture
relating to the satisfaction and discharge of this Supplemental Indenture have
been complied with.


 


With
respect to the foregoing clause (1), the Company’s and the Guarantors’
obligations under Section 8.06 of the Base Indenture shall survive such
satisfaction and discharge to the extent provided in the Base Indenture.  With respect to the foregoing clause (2), the
Company’s and the Guarantors’ obligations in Sections 2.13, 4.01, 4.02, 4.13,
8.05 and 8.06 hereof and Section 8.06 of the Base Indenture shall survive
until the Notes are no longer outstanding. 
Thereafter, only the Company’s and the Guarantors’ obligations in
Sections 8.05 and 8.06 hereof and Section 8.06 of the Base Indenture shall
survive.  After any such irrevocable
deposit, the Trustee upon written request of the Company shall acknowledge in
writing the discharge of the Company’s and the Guarantors’ obligations under
the Notes and this Supplemental Indenture, except for those surviving
obligations specified above.


 


SECTION 8.02.                                    Defeasance and
Discharge of Indenture.  The
Company will be deemed to have paid and will, together with the Guarantors, be
discharged from any and all obligations in respect of this Supplemental
Indenture and the Notes on the date of the deposit referred to in clause (A) of
this Section 8.02, and the provisions of this Supplemental Indenture will
no longer be in effect with respect to the Notes (“Legal Defeasance”),
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same, except for the following provisions which
shall survive until otherwise terminated or discharged hereunder:  (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in clause (A) below
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (b) the Company’s obligations with
respect to such Notes under Article Two and Section 4.02, (c) the
rights, powers, trusts, duties, indemnities and immunities of the Trustee
hereunder, including, without limitation, Section 8.06 of the Base
Indenture and the Company’s obligations in connection therewith and (d) this
Article Eight.  Subject to
compliance with this Article Eight, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.  The
following conditions shall apply to Legal Defeasance:


 


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(A)                              the Company
must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders cash, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the Notes on the stated date for payment
thereof or on the applicable redemption date, as the case may be;


 


(B)                                the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that:


 


(i)                            the Company has
received from, or there has been published by the United States Internal
Revenue Service, a ruling, or


 


(ii)                              since the date
of this Supplemental Indenture, there has been a change in the applicable U.S.
federal income tax law,


 


in either case to the effect that, and based thereon this Opinion of
Counsel shall confirm that, the Holders will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of the Legal Defeasance and
will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;


 


(C)                                no Default or
Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or an Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowing);


 


(D)                               the Legal
Defeasance shall not result in a breach or violation of, or constitute a
default under this Supplemental Indenture (other than a Default or an Event of
Default resulting from the borrowing of funds to be applied to such deposit and
the grant of any Lien securing such borrowings) or any other material agreement
or instrument (including, without limitation, the Credit Agreement) to which
the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;


 


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


 


(F)                                 the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that the conditions provided for in, in the case of the
Officers’ Certificate, clauses (A) through (E) and, in the case of
the Opinion of Counsel, clauses (A) (with respect to the validity and
perfection of the security interest), (B) and (D) of this Section 8.02
have been complied with; and


 


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(G)                                the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
assuming no intervening bankruptcy of the Company between the date of deposit
and the 124th day following the date of deposit and that no Holder is an
insider of the Company, after the 124th day following the date of deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally.


 


The
Company’s and the Guarantors’ obligations in Sections 3.07, 5.02, 5.04, 6.01,
8.06, 8.10 and 8.11 of the Base Indenture, Article 4 of the Base Indenture
and Sections 4.01, 4.02, 4.13, 8.05 and 8.06 hereunder shall survive until the
Notes are no longer outstanding. 
Thereafter, only the Company’s and the Guarantors’ obligations in
Sections 5.04 and 8.06 of the Base Indenture and Sections 8.05 and 8.06
hereunder shall survive.


 


After
any such irrevocable deposit, the Trustee upon written request shall
acknowledge in writing the discharge of the Company’s obligations under the
Notes and this Supplemental Indenture except for those surviving obligations in
the immediately preceding paragraph.


 


Notwithstanding
the foregoing, the Opinion of Counsel required by Section 8.02(B) with
respect to a Legal Defeasance need not be delivered if all Notes not
theretofore delivered to the Trustee for cancellation (1) have become due
and payable or (2) will become due and payable on the maturity date or a
redemption date 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.


 


SECTION 8.03.                                    Defeasance of
Certain Obligations.  The Company
may omit to comply with any term, provision or condition set forth in Section 5.01(a)(3) and
Sections 4.03 through 4.16 and Sections 4.18 through 4.21 and breach of
clauses (a)(4), (a)(5) and (a)(8) under Section 6.01 shall
be deemed not to be Events of Default (“Covenant Defeasance”), in each
case with respect to the outstanding Notes if:


 


(A)                              the Company
irrevocably deposits with the Trustee, in trust, for the benefit of the Holders
cash, non-callable U.S. Government Obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if
any, and interest on the Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be;


 


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


 


(C)                                no Default or
Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the 


 


65

















 


borrowing of funds to be
applied to such deposit and the grant of any Lien securing such borrowings);


 


(D)                               the Covenant
Defeasance shall not result in a breach or violation of, or constitute a
default under this Supplemental Indenture (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit and
the grant of any Lien securing such borrowing) or any other material agreement
or instrument (including, without limitation, the Credit Agreement) to which
the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;


 


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


 


(F)                                 the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that the conditions provided for in, in the case of the
Officers’ Certificate, clauses (A) through (E) and, in the case of
the Opinion of Counsel, clauses (A) (with respect to the validity and
perfection of the security interest), (B) and (D) of this Section 8.03
have been complied with; and


 


(G)                                the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
assuming no intervening bankruptcy of the Company between the date of deposit
and the 124th day following the date of deposit and that no Holder is an
insider of the Company, after the 124th day following the date of deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally.


 


If
the funds deposited with the Trustee to effect Covenant Defeasance are
insufficient to pay the principal of and interest on the Notes when due, then
the Company’s obligations and the obligations of the Guarantors under this
Supplemental Indenture will be revived and no such defeasance will be deemed to
have occurred.


 


SECTION 8.04.                                    Application of
Trust Money.  Subject to Section 8.06,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as
the case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Notes and this Supplemental
Indenture to the payment of principal of, premium, if any, and interest on the
Notes.


 


SECTION 8.05.                                    Repayment to
Company.  Subject to Sections 8.01, 8.02
and 8.03 and Section 8.06 of the Base Indenture, the Trustee and the
Paying Agent shall promptly pay to the Company upon request set forth in an
Officers’ Certificate any excess money held by them at any time and thereupon
shall be relieved from all liability with respect to such money.  The Trustee and the Paying Agent shall pay to
the Company upon written request any money held by them for the payment of
principal, premium, if any, or interest that remains unclaimed for two years; provided that the Trustee or such Paying Agent before being
required to make any 


 


66

















 


payment shall cause to be published at the expense
of the Company once in a newspaper of general circulation in the City of New
York or mail to each Holder entitled to such money at such Holder’s address (as
set forth in the Register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30 days from the date
of such publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Company.  After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.


 


SECTION 8.06.                                    Reinstatement.  If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.01,
8.02 or 8.03, as the case may be, by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Supplemental Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01,
8.02 or 8.03, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided that if the Company has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.


 


Article 12
of the Base Indenture shall not apply to the Notes


 


ARTICLE NINE


 


AMENDMENTS, SUPPLEMENTS AND
WAIVERS


 


SECTION 9.01.                                    Without Consent
of Holders.  The
Company, when authorized by a resolution of its Board of Directors (as
evidenced by a Board Resolution), and the Trustee may amend or supplement this
Supplemental Indenture, the Notes and any Guarantee without notice to or the
consent of any Holder:


 


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


 


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


 


(3)                                  to provide for
the assumption of the Company’s or any Guarantor’s obligations to Holders in the
case of a merger, consolidation, amalgamation or other combination of the
Company or any Guarantor or sale of all or substantially all of the Company’s
or such Guarantor’s assets;


 


(4)                                  to make any
change that would provide any additional rights or benefits to the Holders of
Notes or that does not materially adversely affect the rights or interests
under this Supplemental Indenture of any such Holder;


 


67

















 


(5)                                  to alter the
form of Notes to provide for any changes in applicable tax laws to the extent
that such changes do not materially adversely affect the rights or interests of
any Holder; or


 


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


 


This
Section 9.01 is subject to Section 9.05.


 


SECTION 9.02.                                    With Consent of
Holders.  Subject to Sections 6.04 and
6.07 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution), and the Trustee
may amend this Supplemental Indenture, the Notes or the Guarantees with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding, and the Holders of a majority in aggregate
principal amount of the Notes then outstanding by written notice to the Trustee
may waive compliance by the Company with any provision of this Supplemental
Indenture, the Notes or the Guarantees.


 


Notwithstanding
the foregoing provisions of this Section 9.02, without the consent of each
Holder affected, an amendment or waiver, including a waiver pursuant to Section 6.04,
may not:


 


(1)                                  reduce the
amount of Notes whose Holders must consent to an amendment;


 


(2)                                  reduce the rate
of or change or have the effect of changing the time for payment of interest,
including defaulted interest, on any Notes;


 


(3)                                  reduce the
principal of or change or have the effect of changing the fixed maturity of any
Notes, or change the date on which any Notes may be subject to redemption or
reduce the redemption price therefor;


 


(4)                                  make any Notes
payable in money other than that stated in the Notes;


 


(5)                                  make any change
in provisions of this Supplemental Indenture protecting the right of each
Holder to receive payment of principal of and interest on such Note on or after
the due date thereof or to bring suit to enforce such payment, or permitting
Holders of a majority in principal amount of Notes to waive Defaults or Events
of Default;


 


(6)                                  after the
Company’s obligation to purchase Notes arises thereunder, amend, change or
modify in any material respect the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control or
make and consummate a Net Proceeds Offer with respect to any Asset Sale that
has been consummated or, after such Change of Control has occurred or such
Asset Sale has been consummated, modify any of the provisions or definitions
with respect thereto;


 


68

















 


(7)                                  modify or
change any provision of this Supplemental Indenture or the related definitions
affecting the ranking of the Notes or the Guarantees in a manner which
adversely affects the Holders;


 


(8)                                  release any
Guarantor that is a Significant Subsidiary from any of its obligations under
its Guarantee or this Supplemental Indenture otherwise than in accordance with
the terms of this Supplemental Indenture; or


 


(9)                                  modify or
change any provision of Section 9.01 or Section 9.02.


 


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


 


After
an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver.  The Company shall mail supplemental
indentures to Holders upon request.  Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.


 


This
Section 9.02 is subject to Section 9.05.


 


SECTION 9.03.                                    Revocation and
Effect of Consent.  Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the Note of the consenting
Holder, even if notation of the consent is not made on any Note.  However, any such Holder or subsequent Holder
may revoke the consent as to its Note or portion of its Note.  Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. 
An amendment, supplement or waiver shall become effective on receipt by
the Trustee of written consents from the Holders of the requisite percentage in
principal amount of the outstanding Notes and any other conditions thereto
specified in the notice relating thereto.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to consent to any amendment, supplement or
waiver.  If a record date is fixed, then,
notwithstanding the last two sentences of the immediately preceding paragraph,
those persons who were Holders at such record date (or their duly designated
proxies) and only those persons shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be Holders after such record date.  No such consent shall be valid or effective
for more than 90 days after such record date.


 


After
an amendment, supplement or waiver becomes effective, it shall bind every
Holder unless it is of the type described in any of clauses (i) through (ix) of
Section 9.02.  In case of an
amendment or waiver of the type described in clauses (i) through (ix) of
Section 9.02, the amendment or waiver shall bind each Holder who has
consented to it and every subsequent Holder of a Note that evidences the same
indebtedness as the Note of the consenting Holder.


 


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SECTION 9.04.                                    Notation on or
Exchange of Notes.  If an
amendment, supplement or waiver changes the terms of a Note, the Trustee may
require the Holder to deliver it to the Trustee.  The Trustee shall, if directed in writing by
the Company, place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee shall, if directed in writing by
the Company, place an appropriate notation on any Note thereafter
authenticated.  Alternatively, if the
Company so determines, the Company in exchange for the Note shall issue and the
Trustee upon the Company’s written direction in the form of a Company Order
shall authenticate a new Note that reflects the changed terms.


 


SECTION 9.05.                                    Trustee to Sign
Amendments, Etc.  The Trustee
shall receive, and shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Nine
is authorized and permitted by this Supplemental Indenture (and otherwise in
form and substance satisfactory to the Trustee).  Subject to the preceding sentence, the
Trustee shall sign such amendment, supplement or waiver if the same does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.  The Trustee may, but shall not be obligated
to, execute any such amendment, supplement or waiver that affects the Trustee’s
own rights, duties or immunities under this Supplemental Indenture or
otherwise.


 


SECTION 9.06.                                    Conformity with
Trust Indenture Act.  Every
supplemental indenture executed pursuant to this Article Nine shall
conform to the requirement of the TIA as then in effect.


 


SECTION 9.07.                                    Base Indenture.  Nothing in this Article 9 shall limit
the rights of the Company and the Trustee to enter into an indenture or
indentures supplemental to the Base Indenture pursuant to Article 10 of
the Base Indenture; provided that
no such indenture or supplement shall affect the Notes unless such amendment or
supplement complies with Section 9.01 or 9.02 hereof, as applicable.  The provisions of this Supplemental Indenture
are solely for the benefit of the Trustee and the Holders of the Notes.


 


ARTICLE TEN


 


[RESERVED]


 


ARTICLE ELEVEN


 


GUARANTEE OF NOTES


 


SECTION 11.01.                              Guarantee.  Each Guarantor hereby fully and
unconditionally guarantees, as a primary obligor and not merely a surety, to
each Holder of a Note authenticated and delivered by a Trustee and to the
Trustee and their successors, that: 
(a) the principal of, premium, if any, and interest on the Notes
will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest on the Notes and all other obligations of the
Company to the Holders or the Trustee hereunder (including amounts due the
Trustee under Section 7.07) and all other obligations under this
Supplemental Indenture (the “Indenture Obligations”) will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and 


 


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(b) in case of any extension of time of payment
or renewal of any Notes or any of such other Obligations hereunder, the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at the maturity date of the Notes,
by acceleration or otherwise.  An Event
of Default under this Supplemental Indenture or the Notes shall constitute an
event of default under any of the Guarantees, and shall entitle the Holders of
Notes to accelerate the obligations of each Guarantor hereunder in the same
manner and to the same extent as the obligations of the Company hereunder.


 


Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the absence of any action to enforce the Notes or this
Supplemental Indenture, any release of any other Guarantor, the recovery of any
judgment against the Company, any action to enforce the same, whether or not
its Guarantee is affixed to any particular Note, or any other circumstance
(other than payment in full) which might otherwise constitute a legal or
equitable discharge or defense of each Guarantor.  Each Guarantor hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, this
Supplemental Indenture and its Guarantee or as otherwise provided herein for
the release of such Guarantee.  The
Guarantees are guarantees of payment and not of collection.  If any Holder or the Trustee is required by
any court or otherwise to return to the Company or to the Guarantors, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or the Guarantors, any amount paid by the Company or the Guarantors
to the Trustee or such Holder, each Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.  Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of Notes and the Trustee, on the
other hand, (a) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of each Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due
and payable by each Guarantor for the purpose of its Guarantee.


 


The
obligations of each Guarantor to the Holders and to the Trustee pursuant to the
Guarantee of such Guarantor and this Supplemental Indenture are expressly
subordinate and subject in right of payment to the prior payment in full of all
Guarantor Senior Debt of such Guarantor, to the extent and in the manner
provided in Article Twelve.


 


SECTION 11.02.                              Execution and
Delivery of Guarantee. 
Guarantees, substantially in the form included in Exhibit B
of this Supplemental Indenture, shall be executed by either manual or facsimile
signature of an Officer of each Guarantor. 
The validity and enforceability of each Guarantee shall not be affected
by the fact that it is not affixed to any particular Note.


 


Guarantees
set forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.


 


If
an Officer of a Guarantor whose signature is on this Supplemental Indenture or
a Guarantee no longer holds that office at the time a Trustee authenticates the
Note on which 


 


71

















 


such
Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of
such Note shall be valid nevertheless.


 


The
delivery of any Note by a Trustee, after the authentication thereof hereunder,
shall constitute due delivery of each Guarantee set forth in this Supplemental
Indenture on behalf of its respective Guarantor.


 


SECTION 11.03.                              Waiver of
Subrogation.  Until the
Notes are paid in full, each Guarantor hereby irrevocably waives and agrees not
to exercise any claim or other rights which it may now or hereafter acquire
against the Company or any other Restricted Subsidiary that arise from the
existence, payment, performance or enforcement of the Company’s obligations
under the Notes or this Supplemental Indenture and such Guarantor’s obligations
under its Guarantee and this Supplemental Indenture, in any such instance
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders, any Agent and the Trustee against the Company
or any other Restricted Subsidiary, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company or any other
Restricted Subsidiary, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim or
other rights.  If any amount shall be
paid to any Guarantor in violation of the preceding sentence and any amounts
owing to the Trustee, any Agent or the Holders of Notes under the Notes, this
Supplemental Indenture, or any other document or instrument delivered under or
in connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor
for the benefit of, and held in trust for the benefit of, the Holders, such
Agent, and the Trustee and shall, subject to the provisions of the last
paragraph of Section 11.01, forthwith be paid to the Trustee for the
benefit of such Holders, such Agent and the Trustee to be credited and applied
to the obligations in favor of the Holders, such Agent and the Trustee, whether
matured or unmatured, in accordance with the terms of this Supplemental
Indenture.  Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Supplemental Indenture and that the waiver
set forth in this Section 11.03 is knowingly made in contemplation of such
benefits.


 


SECTION 11.04.                              Immediate
Payment.  Each Guarantor shall make
immediate payment to the Trustee on behalf of the Holders and the Trustee of
all obligations with respect to its Guarantee owing or payable to the
respective Holders upon receipt of a demand for payment therefor by the Trustee
to such Guarantor in writing.


 


SECTION 11.05.                              No Set-Off.  Each payment to be made by a Guarantor
hereunder in respect of any obligations with respect to its Guarantee shall be
payable in the currency or currencies in which such obligations are
denominated, and shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.


 


SECTION 11.06.                              Obligations
Absolute.  The
obligations of each Guarantor hereunder are and shall be absolute and
unconditional and any monies or amounts expressed to be owing or payable by
such Guarantor hereunder which may not be recoverable from such 


 


72

















 


Guarantor on the basis of a Guarantee shall be
recoverable from such Guarantor as a primary obligor and principal debtor in
respect thereof.


 


SECTION 11.07.                              Obligations
Continuing.  The
obligations of each Guarantor hereunder shall be continuing and shall remain in
full force and effect until all of the obligations with respect thereto have
been paid and satisfied in full.  Each
Guarantor agrees with the Trustee that it will from time to time deliver to the
Trustee suitable acknowledgments of this continued liability hereunder and
under any other instrument or instruments in such form as counsel to the
Trustee may advise and as will prevent any action brought against it in respect
of any default hereunder being barred by any statute of limitations now or
hereafter in force in the jurisdiction of incorporation or organization of such
Guarantor or elsewhere and, in the event of the failure of such Guarantor so to
do, it hereby irrevocably appoints the Trustee and each of them the attorneys
and agents of such Guarantor to make, execute and deliver such written
acknowledgment or acknowledgments or other instruments as may from time to time
become necessary or advisable, in the judgment of the Trustee on the advice of
counsel, to fully maintain and keep in force the liability of such Guarantor
hereunder.


 


SECTION 11.08.                              Obligations Not
Reduced.  The obligations of each
Guarantor hereunder shall not be satisfied, reduced or discharged by any intermediate
payment or satisfaction of the whole or any part of the principal, interest,
fees and other monies or amounts which may at any time be or become owing or
payable under or by virtue of or otherwise in connection with the Notes or this
Supplemental Indenture.


 


SECTION 11.09.                              Obligations
Reinstated.  The
obligations of each Guarantor hereunder shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payment which would
otherwise have reduced the obligations of each Guarantor hereunder (whether
such payment shall have been made by or on behalf of the Company or by or on
behalf of such Guarantor) is rescinded or reclaimed from any of the Holders and
the Trustee upon the insolvency, bankruptcy, liquidation or reorganization of
the Company or such Guarantor or otherwise, all as though such payment had not
been made.  If demand for, or
acceleration of the time for, payment by the Company is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of the Company, all such
indebtedness otherwise subject to demand for payment or acceleration shall
nonetheless be payable by each Guarantor as provided herein.


 


SECTION 11.10.                              Obligations Not
Affected.  The
obligations of each Guarantor hereunder shall not be affected, impaired or
diminished in any way by any act, omission, matter or thing whatsoever,
occurring before, upon or after any demand for payment hereunder (and whether
or not known or consented to by such Guarantor or any of the Holders and the
Trustee) which, but for this provision, might constitute a whole or partial
defense to a claim against each Guarantor hereunder or might operate to release
or otherwise exonerate such Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders and the Trustee or otherwise, including, without limitation:


 


(i)                                     any limitation
of status or power, disability, incapacity or other circumstance relating to
the Company or any other person, including any insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition, dissolution, winding-up
or other proceeding involving or affecting the Company or any other person;


 


73
















 


(ii)           any failure of the Company, whether or not without fault
on its part, to perform or comply with any of the provisions of this
Supplemental Indenture or the Notes, or to give notice thereof to any
Guarantor;


 


(iii)          the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or against the
Company or any other Person or their respective assets or the release or
discharge of any such right or remedy;


 


(iv)          the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Company
or any other person;


 


(v)           any change in the time, manner or place of payment of, or
in any other term of, any of the Notes, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any of
the Notes or this Supplemental Indenture, including, without limitation, any
increase or decrease in the principal amount of or premium, if any, or interest
on any of the Notes;


 


(vi)          any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Company or any
Guarantor;


 


(vii)         any merger or amalgamation of the Company or any Guarantor
with any Person or Persons;


 


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


 


(ix)           any other circumstance (other than by complete,
irrevocable payment) that might otherwise constitute a legal or equitable
discharge or defense of the Company under this Supplemental Indenture or the
Notes or of any Guarantor in respect of its guarantee hereunder.


 


SECTION 11.11.          Waiver.  Without in any way limiting the provisions of
Section 11.01, each Guarantor hereby waives notice of acceptance hereof,
notice of any liability of such Guarantor hereunder, notice or proof of
reliance by the Holders and the Trustee upon the obligations of such Guarantor
hereunder, and diligence, presentment, demand for payment on the Company,
protest, notice of dishonor or non-payment of any of the obligations under its
Guarantee, or other notice or formalities to the Company or such Guarantor of
any kind whatsoever.


 


SECTION 11.12.          No Obligation to Take Action
Against Company.  Neither the Trustee
nor any of the Holders shall have any obligation to enforce or exhaust any
rights or remedies or to take any other steps under any security for the
obligations under the Guarantees or against the Company or any other person or
any property of the Company or any other person before the Trustee is entitled
to demand payment and performance by any Guarantor of its 


 


74

















 


liabilities and obligations under its Guarantee, and
each Guarantor hereby waives all benefit of discussion.


 


SECTION 11.13.          Default and Enforcement.


 


(a)              If any Guarantor fails to pay in accordance with
Section 11.01, the Trustee may proceed in its name as trustee hereunder in
the enforcement of such Guarantee and such Guarantor’s obligations thereunder
and hereunder by any remedy provided by law, whether by legal proceedings or
otherwise, and to recover from any Guarantor the obligations of such Guarantor
with respect to its Guarantee.


 


(b)              No Holder shall have the right to institute any suit,
action or proceeding against any Guarantor for any default hereunder except in
the manner and subject to the conditions set forth in Article Six, it
being understood and intended that no one or more Holders shall have any right
in any manner whatsoever to enforce any right hereunder by his or their action
except as aforesaid and that all powers and trusts hereunder shall be exercised
and all proceedings at law or in equity shall be instituted, had and maintained
by the Trustee, only as aforesaid and in any event for the benefit of all
Holders as provided in this Supplemental Indenture.


 


SECTION 11.14.          Costs and Expenses.  Each Guarantor shall pay on demand by the
Trustee any and all costs, fees and expenses (including, without limitation,
the fees and the expenses of its counsel) incurred by the Trustee or any of the
Holders in enforcing any of their rights under its Guarantee.


 


SECTION 11.15.          No Merger or Waiver; Cumulative
Remedies.  No Guarantee shall operate
by way of merger of any of the obligations of any Guarantor under any other
agreement, including, without limitation, this Supplemental Indenture.  No failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, remedy, power
or privilege hereunder or under this Supplemental Indenture or the Notes, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under this Supplemental
Indenture or the Notes preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein and under this Supplemental Indenture, the Notes and any other document
or instrument between any Guarantor and/or the Company and the Trustee, are
cumulative and not exclusive of any rights, remedies, powers and privilege
provided by law.


 


SECTION 11.16.          Survival of Obligations.  Without prejudice to the survival of any of
the other obligations of any Guarantor hereunder, the obligations of each
Guarantor under Section 11.01 shall survive the payment in full of any
obligations with respect to its Guarantee and shall be enforceable against each
Guarantor without regard to and without giving effect to any defense, right of
offset or counterclaim available to or which may be asserted by the Company or
any Guarantor.


 


SECTION 11.17.          Guarantee in Addition to Other
Obligations.  The obligations of each
Guarantor under its Guarantee and this Supplemental Indenture are in addition
to and not in substitution for any other obligations to the Trustee or to any
of the Holders in relation to this 


 


75

















 


Supplemental Indenture or the Notes and any
guarantees or security at any time held by or for the benefit of any of them.


 


SECTION 11.18.          Successors and Assigns.  Each Guarantee shall be binding upon and
inure to the benefit of each Guarantor and the Trustee and the other Holders
and their respective successors and permitted assigns, except that no Guarantor
may assign any of its obligations hereunder except in accordance with the
provisions of Section 9.01 or 9.02 , as applicable, or Section 5.01(c).


 


SECTION 11.19.          Limitation of Guarantor’s Liability.  Any term or provision of this Supplemental
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
obligations guaranteed hereunder by any Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Supplemental
Indenture, as it relates to such Guarantor, voidable under applicable law relating
to fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.  To
effectuate the foregoing intention, the obligations of each Guarantor shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor (including, but not limited
to, all Guarantor Senior Debt of such Guarantor) and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations hereunder, result in the obligations
of such Guarantor under its Guarantee not constituting a fraudulent conveyance
or fraudulent transfer under federal, state or foreign law.  Each Guarantor that makes a payment or
distribution under a Guarantee shall be entitled to a contribution from each
other Guarantor in an amount based on the consolidated net worth of each Guarantor.


 


SECTION 11.20.          Release of Guarantee.


 


(a)           Each Guarantor may consolidate with
or merge into or sell its assets to the Company or another Guarantor that is a
Wholly Owned Restricted Subsidiary of the Company without limitation, or with
other Persons, upon the terms and conditions set forth in Section 5.01.


 


(b)           In the event all of the Capital Stock
of a Guarantor is sold by the Company and the sale complies with Section 4.10
or a Restricted Subsidiary that is a Guarantor is properly designated as an
Unrestricted Subsidiary pursuant to this Supplemental Indenture, the Guarantor’s
Guarantee will be released.


 


ARTICLE TWELVE


 


RESERVED


 


ARTICLE THIRTEEN


 


MISCELLANEOUS


 


SECTION 13.01.          Payment Date Other Than a Business
Day.  If an Interest Payment Date,
Redemption Date, Stated Maturity or date of maturity or repurchase of any Note
or any other payment date shall not be a Business Day, then payment of
principal of, premium, if 


 


76

















 


any, or interest on such Note, as the case may be,
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or date of maturity or repurchase of
such Note; provided that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date,
Stated Maturity or date of maturity or repurchase, as the case may be.


 


SECTION 13.02.          Governing Law.  This Supplemental Indenture, the Notes and
the Guarantees will be governed by, and construed in accordance with, the laws
of the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of law of another
jurisdiction would be required thereby. 
The Trustee, the Company and the Guarantors agree to submit to the
jurisdiction of any federal or state court situated in the State of New York,
the City of New York, the Borough of Manhattan in any action or proceeding
arising out of or relating to this Supplemental Indenture, the Notes and the
Guarantees.  Each of the Company and each
Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of each
such court for the purpose of any such action or proceeding.  Each of the Company and each Guarantor
irrevocably waives, to the fullest extent it may effectively do so, any
objection to the laying of venue of any such action or proceeding in any such
court and the defense of inconvenient forum to the maintenance of any such
action or proceeding in any such court.


 


SECTION 13.03.          No Adverse Interpretation of Other
Agreements.  This Supplemental
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company.  Any such
indenture, loan or debt agreement may not be used to interpret this
Supplemental Indenture.


 


SECTION 13.04.          No Recourse Against Others.  No recourse for the payment of the principal
of, premium, if any, or interest on any of the Notes, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company or the Guarantors contained in
this Supplemental Indenture or in any of the Notes, or because of the creation
of any Indebtedness represented thereby, shall be had against any incorporator
or against any past, present or future partner, shareholder, other
equityholder, officer, director, employee, management board member, supervisory
board member or controlling person, as such, of the Company or the Guarantors
or of any successor Person, either directly or through the Company, the
Guarantors or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Supplemental Indenture and the issue of the Notes.


 


SECTION 13.05.          Successors.  All agreements of the Company and the
Guarantors in this Supplemental Indenture and the Notes shall bind their
respective successors.  All agreements of
the Trustee in this Supplemental Indenture shall bind its successor.


 


SECTION 13.06.          Duplicate Originals.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same
agreement.  The exchange of copies of
this Supplemental Indenture 


 


77

















 


and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this
Supplemental Indenture as to the parties hereto and may be used in lieu of the
original Indenture for all purposes. 
Signatures of the parties hereto transmitted by facsimile or PDF shall
be deemed to be their original signatures for all purposes.


 


SECTION 13.07.          Separability.  In case any provision in this Supplemental
Indenture, in the Base Indenture, in the Guarantees or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.


 


SECTION 13.08.          Table of Contents, Headings, Etc.  The Table of Contents and headings of the
Articles and Sections of this Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms and provisions hereof.


 


SECTION 13.09.          Waiver of Jury Trial.  Each of the Company, the Guarantors, Trustee,
Paying Agent, and Registrar hereby irrevocably waives, 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 Supplemental Indenture, the
Notes, the Guarantees or the transactions contemplated hereby.


 


SECTION 13.10.          Unclaimed Money; Prescription.  If money deposited with the Trustee or any
Paying Agent for the payment of principal, premium (if any) or interest remains
unclaimed for two years, the Trustee and such Paying Agent shall, upon written
request of the Company, pay such money back to the Company.  Following such repayment to the Company,
Holders of the Notes entitled to such payment must look to the Company for such
payment unless applicable abandoned property law designates another Person and
all liability of the Trustee and Paying Agent shall cease.  Other than as set forth in this paragraph,
this Supplemental Indenture does not provide for any prescription period for
the payment of principal, premium (if any) or interest on the Notes.


 


SECTION 13.11.          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.


 


SECTION 13.12.          U.S.A. Patriot Act.  The parties hereto acknowledge that in
accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like
all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or
opens an account with the Trustee.  The
parties to this Supplemental Indenture agree that they will provide the Trustee
with such information as it may request in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.


 


78

















 


[Signature Pages Follow]


 


79

















 


SIGNATURES


 


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


 


 


	
   

  	
  THE
  MANITOWOC COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurice D. Jones

  
	
   

  	
   

  	
  Name:

  	
  Maurice
  D. Jones

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President, General Counsel

  
	
   

  	
   

  	
   

  	
  and
  Secretary

  



 


S-1

















 


	
   

  	
  MANITOWOC
  CRANE COMPANIES, LLC,

  
	
   

  	
  MANITOWOC
  FOODSERVICE COMPANIES, LLC,

  
	
   

  	
  MANITOWOC
  CRANES, LLC,

  
	
   

  	
  GROVE
  U.S. LLC,

  
	
   

  	
  MANITOWOC
  FP, INC.,

  
	
   

  	
  MANITOWOC
  FSG OPERATIONS, LLC,

  
	
   

  	
  MMG
  HOLDING CO., LLC,

  
	
   

  	
  MCCANN’S
  ENGINEERING & MANUFACTURING CO., LLC,

  
	
   

  	
  MANITOWOC
  FSG SERVICES, LLC,

  
	
   

  	
  MANITOWOC
  FSG INTERNATIONAL HOLDINGS, INC.,

  
	
   

  	
  KYSOR
  NEVADA HOLDING CORP.

  
	
   

  	
  CLEVELAND
  RANGE, LLC,

  
	
   

  	
  THE
  DELFIELD COMPANY LLC,

  
	
   

  	
  FRYMASTER
  LLC,

  
	
   

  	
  KYSOR
  INDUSTRIAL CORPORATION

  
	
   

  	
  ENODIS
  CORPORATION,

  
	
   

  	
  ENODIS
  HOLDINGS, INC.,

  
	
   

  	
  MANITOWOC
  FSG U.S. HOLDING, LLC,

  
	
   

  	
  MANITOWOC
  CRANE GROUP U.S. HOLDING, LLC,

  
	
   

  	
  ENVIRONMENTAL
  REHAB, INC.,

  
	
   

  	
  MANITOWOC
  CP, INC.,

  
	
   

  	
  MANITOWOC
  MEC, INC.,

  
	
   

  	
  MANITOWOC
  RE-MANUFACTURING, LLC,

  
	
   

  	
  MANITOWOC
  EQUIPMENT WORKS, INC.,

  
	
   

  	
  as Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurice D. Jones

  
	
   

  	
   

  	
  Name:

  	
  Maurice
  D. Jones

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELBILT
  WALK-INS, LP

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  WESTRAN
  CORPORATION

  
	
   

  	
   

  	
  as General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurice D. Jones

  
	
   

  	
   

  	
  Name:

  	
  Maurice
  D. Jones

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President and Secretary

  



 


S-2

















 


	
   

  	
  MTW
  COUNTY LIMITED,

  
	
   

  	
  ENODIS
  LIMITED,

  
	
   

  	
  as Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurice D. Jones

  
	
   

  	
   

  	
  Name:

  	
  Maurice
  D. Jones

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


S-3

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL 

  
	
   

  	
  ASSOCIATION,
  as Trustee, Registrar, Transfer 

  
	
   

  	
  Agent
  and Paying Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lynn M. Steiner

  
	
   

  	
   

  	
  Name:

  	
  Lynn
  M. Steiner

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


S-4
















 


EXHIBIT A


 


[FACE OF NOTE]


 


THE MANITOWOC COMPANY, INC.


 


8.50% Senior Note due 2020


 


$


 


CUSIP
No.


 


No.


 


THE
MANITOWOC COMPANY, INC., a Wisconsin corporation (the “Company”,
which term includes any successor under the Indenture hereinafter referred to),
for value received, promise to pay to
                              ,
or its registered assigns, the principal sum of
$           on November 1,
2020.


 


Interest
Payment Dates:  May 1 and November 1
beginning May 1, 2011.


 


Regular
Record Dates:  April 15 and October 15.


 


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


 


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


 


A-1

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually by its
duly authorized signatories.


 


	
   

  	
  THE
  MANITOWOC COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


(Trustee’s Certificate of Authentication)


 


This
is one of the 8.50% Senior Notes due 2020 described in the within-mentioned
Supplemental Indenture.


 


Date:


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL 

  ASSOCIATION,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


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{REVERSE SIDE OF NOTE}


 


THE MANITOWOC COMPANY, INC.


 


8.50% Senior Note due 2020


 


1.                                       Principal and
Interest.


 


The
Company shall pay the principal of this Note on November 1, 2020.


 


The
Company promises to pay interest on the principal amount of this Note on each
Interest Payment Date, as set forth below, at the rate per annum shown above.


 


Interest will be paid semi-annually in arrears
on each Interest Payment Date, commencing May 1, 2011.  Interest on
this Note will accrue from the latest date to which interest has been paid on
the Notes or, if no interest has been paid, the Issue Date.  Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


The
Company shall pay interest on overdue principal and premium, if any, and
interest on overdue installments of interest, to the extent lawful, at a rate
per annum that is the then applicable interest rate borne by the Notes.


 


2.                                       Method of
Payment.


 


The
Company shall pay interest on the principal amount of the Notes on each May 1
and November 1 to the persons who are Holders of the relevant Notes on the
April 15 or October 15, as the case may be, immediately preceding
such Interest Payment Date (as reflected in the Register at the close of
business on the Regular Record Date), in each case, even if the Note is
canceled on registration of transfer or registration of exchange after such
record date.  The Company shall make
payments of principal on the Notes to Holders that surrender Notes to the
Paying Agent.


 


If
a Holder has given wire transfer instructions to the Paying Agent at least 15
days prior to any payment, the Company shall make all principal, premium and
interest payments on the Notes owned by such Holder in accordance with those
instructions.  All other payments on the
Notes shall be made by check mailed to the Holders at their address set forth
in the register of Holders, or in the case of the final payment of principal
and interest, if any, on any Note, upon presentation and surrender of such Note
at the office of the Paying Agent.  All
payments on the Notes will be made in Dollars.


 


3.                                       Paying Agent
and Registrar.


 


Initially,
the Company has appointed the corporate trust office of the Trustee as Paying
Agent.


 


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4.                                       Indenture;
Limitations.


 


The
Company issued the Notes under a Base Indenture dated as of February 8,
2010 as supplemented and amended, including by the Second Supplemental Indenture
(the “Supplemental Indenture”) thereto dated as of October 18, 2010
among the Company, the Guarantors named therein and Wells Fargo Bank, National
Association, as trustee (the “Trustee”), among the Company and the
Trustee (the “Base Indenture”). 
Capitalized terms herein are used as defined in the Supplemental
Indenture unless otherwise indicated. 
This Note is one of a duly authorized issue of Notes of the Company
designated as its 8.50% Senior Notes due 2020 (the “Initial Notes”).  The Initial Notes are initially being issued
in the aggregate principal amount of $600,000,000.  Subject to Section 4.03 of the
Supplemental Indenture, the Company shall be entitled to issue Additional Notes
pursuant to Section 2.06 of the Supplemental Indenture (the “Additional
Notes”).  The Initial Notes issued on
the Issue Date, any Additional Notes are treated as a single class of
securities under the Supplemental Indenture. 
The terms of the Notes include those stated in the Supplemental
Indenture and those made part of the Supplemental Indenture by reference to the
Trust Indenture Act.  The Notes are
subject to all such terms, and Holders are referred to the Supplemental
Indenture and the Trust Indenture Act for a statement of all such terms.  To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Supplemental Indenture, the terms of the Supplemental Indenture shall
control.  This is one of the Notes
referred to in the Supplemental Indenture. 
The Notes are unsecured.


 


5.                                       Redemption.


 


Optional Redemption.


 


(a)                          The Notes will
be redeemable, at the Company’s option, in whole or in part from time to time,
at any time prior to November 1, 2015, upon not less than 30 nor more than
60 days’ written notice, at a price equal to 100% of the principal amount
thereof plus the Applicable Premium and accrued but unpaid interest, if any, to
the date of redemption (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment
date).


 


(b)                                 In addition,
the Company may redeem the Notes at its option, in whole or in part, upon not
less than 30 nor more than 60 days’ written notice to the Holders, at the
following redemption prices (expressed as percentages of the principal amount
thereof) if redeemed during the 12-month period commencing on November 1
of the year set forth below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2015

  	
   

  	
  104.250

  	
  %

  
	
  2016

  	
   

  	
  102.833

  	
  %

  
	
  2017

  	
   

  	
  101.417

  	
  %

  
	
  2018 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


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In
addition, the Company must pay accrued and unpaid interest on the Notes
redeemed.


 


Optional Redemption upon Public Equity Offerings.  At any time, or from time to time, on or
prior to November 1, 2013, the Company may, at its option, use the net
cash proceeds of one or more Public Equity Offerings (as defined below) to
redeem up to 35% of the principal amount of the Notes (including any Additional
Notes) outstanding under the Supplemental Indenture at a redemption price of
108.500% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that:


 


(1)                                  at least 65% of
the principal amount of Notes (including any Additional Notes) outstanding
under the Supplemental Indenture remains outstanding immediately after any such
redemption; and


 


(2)                                  the Company
makes such redemption not more than 90 days after the consummation of any such
Public Equity Offering.


 


In
the event that the Company chooses to redeem less than all of the Notes,
selection of the Notes for redemption will be made by the Trustee either:


 


(1)                                  in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed; or,


 


(2)                                  on a pro rata basis, by lot or by such method as the Trustee
shall deem fair and appropriate.


 


No
Notes of a principal amount of $2,000 or less shall be redeemed in part.  If a partial redemption is made with the
proceeds of a Public Equity Offering, the Trustee will select the Notes only on
a pro rata basis or on as nearly a pro rata basis as is practicable (subject to the Depository’s
procedures, if any).


 


Notice
of any optional redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at its
last address as it appears in the Register. 
On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption so long as the Company has deposited
with the Paying Agent funds in satisfaction of the Redemption Price pursuant to
the terms of the Supplemental Indenture, unless the Company defaults in the
payment of the Redemption Price.  The
Trustee may select for redemption portions of the principal amount of the Notes
that have denominations equal to $1,000 integral multiples thereof in
accordance with Section 3.03 of the Supplemental Indenture.


 


6.                                       Repurchase upon
Change in Control.


 


Upon
the occurrence of a Change of Control, each Holder shall have the right,
subject to the terms and conditions set forth in the Supplemental Indenture, to
require the Company to repurchase its Notes in cash pursuant to the offer
described in the Supplemental 


 


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Indenture
at a purchase price equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, to the date of purchase (the “Change of Control Payment”).


 


A
notice of such Change of Control will be mailed within 30 days after any Change
of Control occurs to each Holder at its last address as it appears in the
Register and to the Trustee.  The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Change of Control Offer.  Such notice shall state:


 


(1)                                  that the Change
of Control Offer is being made pursuant to Section 4.11 of the
Supplemental Indenture and that all Notes tendered will be accepted for
payment;


 


(2)                                  the purchase
price (including the amount of accrued interest) and the purchase date (which
shall be no earlier than the Change of Control Payment Date);


 


(3)                                  that any Note
not tendered will continue to accrue interest if interest is then accruing;


 


(4)                                  that, unless
the Company defaults in making payment therefor, any Note accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;


 


(5)                                  that Holders
electing to have a Note purchased pursuant to a Change of Control Offer will be
required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;


 


(6)                                  that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than 5:00 p.m., New York City time, on the second Business Day
preceding the Change of Control Payment Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Notes
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and


 


(7)                                  the
circumstances and relevant facts regarding such Change of Control.


 


7.                                       Denominations;
Transfer; Exchange.


 


The
Notes are in registered form without coupons in denominations of $2,000
principal amount and multiples of $1,000 in excess thereof.  A Holder may register the transfer or
exchange of Notes in accordance with the Supplemental Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Supplemental Indenture.


 


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8.                                       Persons Deemed
Owners.


 


A
Holder shall be treated as the owner of a Note for all purposes.


 


9.                                       Unclaimed Money.


 


If
money deposited with the Trustee or any Paying Agent for the payment of
principal, premium (if any), interest remains unclaimed for two years, the
Trustee and each such Paying Agent shall pay such money back to the Company
upon written request of the Company. 
Following such repayment to the Company, Holders of the Notes entitled
to such payment must look to the Company for such payment unless applicable
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent shall cease. 
Other than as set forth in this paragraph, the Supplemental Indenture
does not provide for any prescription period for the payment of principal,
premium (if any), interest on the Notes.


 


10.                                 Discharge Prior
to Redemption or Maturity.


 


If
the Company deposits with the Trustee money or U.S. Government Obligations
sufficient to pay the then outstanding principal of and accrued interest on the
Notes to redemption or maturity, the Company and the Guarantors will be
discharged from the Supplemental Indenture, the Notes and the Guarantees except
in certain circumstances set forth in the Supplemental Indenture.


 


11.                                 Legal
Defeasance and Covenant Defeasance.


 


The
Company and each Guarantor may be discharged from their obligations under the
Supplemental Indenture, the Notes and the Guarantees except for certain
provisions thereof, and the Company may be discharged from its obligations to
comply with certain covenants contained therein, in each case upon satisfaction
of certain conditions specified in the Supplemental Indenture.


 


12.                                 Successor
Persons.


 


When
a successor person or other entity assumes all the obligations of its
predecessor under the Notes and the Supplemental Indenture, the predecessor
person will be released from those obligations.


 


13.                                 Defaults and
Remedies.


 


If
an Event of Default (other than an Event of Default specified in clause (a)(6) or
(a)(7) of Section 6.01 of the Supplemental Indenture that occurs with
respect to the Company) 


 


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occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding under the
Supplemental Indenture by notice to the Company and the Trustee, may declare
the principal of, premium, if any, and accrued interest, if any, on all Notes
to be due and payable.  If an Event of
Default specified in clause (a)(6) or (a)(7) of
Section 6.01 occurs and is continuing with respect to the Company, such
amount with respect to all the Notes shall, ipso facto,
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holders. 
Holders may not enforce the Supplemental Indenture, the Notes or the
Guarantees except as provided in the Supplemental Indenture.  The Trustee may require indemnity
satisfactory to it before it enforces the Supplemental Indenture, the Notes or
the Guarantees.  Subject to certain
limitations, Holders of at least a majority in principal amount of the Notes
then outstanding may direct the Trustee in its exercise of any trust or power.


 


14.                                 No Recourse
Against Others.


 


No
recourse for the payment of the principal of, premium, if any, or interest on
any of the Notes or the Guarantees, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company contained in the Supplemental Indenture, in any of the
Notes or the Guarantees, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or against any past,
present or future partner, shareholder, other equityholder, officer, director,
employee, management board member, supervisory board member or controlling
person, as such, of the Company, the Guarantors or of any successor Person,
either directly or through the Company or any successor Person, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise.


 


15.                                 Authentication.


 


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


 


16.                                 Abbreviations.


 


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


 


17.                                 Choice of Law.


 


The
Supplemental Indenture and this Note shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
law of another jurisdiction would be required thereby.


 


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18.                                 Definitions.


 


Capitalized
terms not otherwise defined herein shall have the respective meanings specified
in the Supplemental Indenture and the Base Indenture. 


 


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ASSIGNMENT
FORM


 


I
or we assign and transfer this Note to


 


	
   

  
	
   

  
	
   

  
	
  (Print
  or type name, address and zip code of assignee or transferee)

  



 


	
   

  
	
  (Insert
  Company Registration, Social Security or other identifying number of assignee
  or transferee)

  



 


and
irrevocably appoint

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


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  



 


	
  Signature
  Guarantee:

  	
   

  
	
   

  	
  Participant in a recognized Signature Guarantee Medallion Program (or
  other signature guarantor program reasonably acceptable to the Trustee)

  



 


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OPTION OF HOLDER TO ELECT PURCHASE


 


If
you wish to have this Note purchased by the Company pursuant to Section 4.10
or Section 4.11 of the Supplemental Indenture, check the box:   o


 


If
you wish to have a portion of this Note purchased by the Company pursuant to Section 4.10
or Section 4.11 of the Supplemental Indenture, state the amount (in
principal amount): 
$                  .


 


	
  Date:

  	
   

  	
   

  



Your
Signature:


 


 




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





 


	
  Signature
  Guarantee:

  	
   

  	
   

  



 


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SCHEDULE A


 


SCHEDULE OF PRINCIPAL AMOUNT

OF INDEBTEDNESS EVIDENCED BY THIS NOTE


 


The initial principal amount of indebtedness
evidenced by this Note shall be
$          .  The following decreases/increases in the
principal amount of indebtedness evidenced by this Note have been made:


 


	
  Date of

  Decrease/Increase

  	
   

  	
  Decrease in

  Principal Amount

  of Indebtedness

  Evidenced

  	
   

  	
  Increase in

  Principal Amount

  of Indebtedness

  Evidenced

  	
   

  	
  Total Principal

  Amount of

  Indebtedness

  Evidenced

  Following Such

  Decrease/Increase

  	
   

  	
  Notation Made

  by or on Behalf of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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EXHIBIT B


 


FORM OF GUARANTEE


 


For
value received, the undersigned hereby fully and unconditionally guarantees to
the Holder of this Note the cash payments in Dollars of principal of, premium,
if any, and interest on this Note in the amounts and at the time when due and
interest on the overdue principal and premium and, to the extent lawful,
interest, if any, on this Note, if lawful, and the payment or performance of
all other obligations of the Company under the Supplemental Indenture or the
Notes, to the Holder of this Note and the Trustee, all in accordance with and
subject to the terms and limitations of this Note and Article Eleven of
the Supplemental Indenture and this Guarantee. 
This Guarantee will become effective in accordance with Article Eleven
of the Supplemental Indenture and its terms shall be evidenced therein.  The validity and enforceability of each
Guarantee shall not be affected by the fact that it may not be affixed to any
particular Note.  Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Base
Indenture dated as of February 8, 2010, between The Manitowoc Company, Inc.
and Wells Fargo Bank, National Association, as Trustee, as amended or
supplemented by the Second Supplemental Indenture (the “Supplemental
Indenture”) thereto dated as of October 18, 2010 among the Company, the
Guarantors named therein and the Trustee (the “Indenture”).


 


The
obligations of the undersigned to the Holders of Notes and to the Trustee
pursuant to this Guarantee and the Supplemental Indenture are expressly set
forth in Article Eleven of the Supplemental Indenture and reference is
hereby made to the Supplemental Indenture for the precise terms of this
Guarantee and all of the other provisions of the Supplemental Indenture to
which this Guarantee relates.


 


THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. 
EACH GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT SITUATED IN THE STATE OF NEW YORK, THE CITY OF NEW YORK,
THE BOROUGH OF MANHATTAN FOR THE PURPOSES SET FORTH IN THE SUPPLEMENTAL
INDENTURE, THE NOTES OR THIS GUARANTEE.


 


Date:  October 18, 2010


 


	
   

  	
   

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: