Exhibit 4.1


 


OSHKOSH CORPORATION


 


as Issuer


 


and


 


THE GUARANTORS PARTY HERETO


 






 


81⁄4% SENIOR NOTES DUE 2017


 


81⁄2% SENIOR NOTES DUE 2020


 






 


INDENTURE


 


DATED AS OF MARCH 3, 2010


 






 


WELLS FARGO BANK, NATIONAL ASSOCIATION


 


as Trustee


 

















 


CROSS-REFERENCE
TABLE*


 




	
  Trust Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.1

  
	
   

  	
  (a)(2)

  	
   

  	
  7.1

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.1

  
	
   

  	
  (b)

  	
   

  	
  7.3;
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.5

  
	
   

  	
  (b)

  	
   

  	
  11.3

  
	
   

  	
  (c)

  	
   

  	
  11.3

  
	
  313

  	
  (a)

  	
   

  	
  7.6

  
	
   

  	
  (b)(1)

  	
   

  	
  7.6

  
	
   

  	
  (b)(2)

  	
   

  	
  7.6;
  7.7

  
	
   

  	
  (c)

  	
   

  	
  7.6;
  11.2

  
	
   

  	
  (d)

  	
   

  	
  7.6

  
	
  314

  	
  (a)

  	
   

  	
  4.3;
  11.5

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  11.4

  
	
   

  	
  (c)(2)

  	
   

  	
  11.4

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  11.5

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.1

  
	
   

  	
  (b)

  	
   

  	
  1.1,
  7.5; 11.2

  
	
   

  	
  (c)

  	
   

  	
  7.1

  
	
   

  	
  (d)

  	
   

  	
  7.1

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a) (last
  sentence)

  	
   

  	
  2.9

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.7

  
	
   

  	
  (c)

  	
   

  	
  2.13

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.8

  
	
   

  	
  (a)(2)

  	
   

  	
  6.9

  
	
   

  	
  (b)

  	
   

  	
  2.3

  
	
  318

  	
  (a)

  	
   

  	
  11.1

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  11.1

  






 






N.A.
means not applicable.


 


*   This Cross-Reference Table is not part of
the Indenture.


 


i

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.2

  	
   

  	
  Other
  Definitions

  	
   

  	
  35

  
	
  SECTION 1.3

  	
   

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  	
  35

  
	
  SECTION 1.4

  	
   

  	
  Rules of
  Construction

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  THE NOTES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
   

  	
  Form and
  Dating

  	
   

  	
  36

  
	
  SECTION 2.2

  	
   

  	
  Authentication
  and Execution

  	
   

  	
  39

  
	
  SECTION 2.3

  	
   

  	
  Registrar;
  Paying Agent

  	
   

  	
  41

  
	
  SECTION 2.4

  	
   

  	
  Paying
  Agent to Hold Money in Trust

  	
   

  	
  42

  
	
  SECTION 2.5

  	
   

  	
  Holder
  Lists

  	
   

  	
  42

  
	
  SECTION 2.6

  	
   

  	
  Book-Entry
  Provisions for Global Securities

  	
   

  	
  42

  
	
  SECTION 2.7

  	
   

  	
  Substituted
  Notes

  	
   

  	
  47

  
	
  SECTION 2.8

  	
   

  	
  Outstanding
  Notes

  	
   

  	
  48

  
	
  SECTION 2.9

  	
   

  	
  Treasury
  Notes

  	
   

  	
  48

  
	
  SECTION 2.10

  	
   

  	
  Temporary
  Notes

  	
   

  	
  48

  
	
  SECTION 2.11

  	
   

  	
  Cancellation

  	
   

  	
  49

  
	
  SECTION 2.12

  	
   

  	
  Defaulted
  Interest

  	
   

  	
  49

  
	
  SECTION 2.13

  	
   

  	
  Record
  Date

  	
   

  	
  49

  
	
  SECTION 2.14

  	
   

  	
  Computation
  of Interest

  	
   

  	
  50

  
	
  SECTION 2.15

  	
   

  	
  CUSIP
  Number

  	
   

  	
  50

  
	
  SECTION 2.16

  	
   

  	
  Special
  Transfer Provisions

  	
   

  	
  50

  
	
  SECTION 2.17

  	
   

  	
  Issuance
  of Additional Notes

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
   

  	
  Notices
  to Trustee

  	
   

  	
  54

  
	
  SECTION 3.2

  	
   

  	
  Selection
  of Notes to Be Redeemed

  	
   

  	
  54

  
	
  SECTION 3.3

  	
   

  	
  Notice
  of Redemption

  	
   

  	
  55

  
	
  SECTION 3.4

  	
   

  	
  Effect
  of Notice of Redemption

  	
   

  	
  55

  
	
  SECTION 3.5

  	
   

  	
  Deposit
  of Redemption of Purchase Price

  	
   

  	
  56

  
	
  SECTION 3.6

  	
   

  	
  Notes
  Redeemed in Part

  	
   

  	
  56

  
	
  SECTION 3.7

  	
   

  	
  Optional
  Redemption

  	
   

  	
  56

  
	
  SECTION 3.8

  	
   

  	
  Mandatory
  Redemption

  	
   

  	
  58

  
	
  SECTION 3.9

  	
   

  	
  Offer
  to Purchase

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
   

  	
  Payment
  of Notes

  	
   

  	
  59

  
	
  SECTION 4.2

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  59

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.3

  	
   

  	
  Provision
  of Financial Information

  	
   

  	
  60

  
	
  SECTION 4.4

  	
   

  	
  Compliance
  Certificate

  	
   

  	
  61

  
	
  SECTION 4.5

  	
   

  	
  Taxes

  	
   

  	
  61

  
	
  SECTION 4.6

  	
   

  	
  Stay,
  Extension and Usury Laws

  	
   

  	
  61

  
	
  SECTION 4.7

  	
   

  	
  Limitation
  on Restricted Payments

  	
   

  	
  62

  
	
  SECTION 4.8

  	
   

  	
  Limitation
  on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
   

  	
  65

  
	
  SECTION 4.9

  	
   

  	
  Limitation
  on Incurrence of Debt

  	
   

  	
  67

  
	
  SECTION 4.10

  	
   

  	
  Limitation
  on Asset Sales

  	
   

  	
  69

  
	
  SECTION 4.11

  	
   

  	
  Limitation
  on Transactions with Affiliates

  	
   

  	
  70

  
	
  SECTION 4.12

  	
   

  	
  Limitation
  on Liens

  	
   

  	
  72

  
	
  SECTION 4.13

  	
   

  	
  Limitation
  on Sale and Leaseback Transactions

  	
   

  	
  72

  
	
  SECTION 4.14

  	
   

  	
  Offer
  to Purchase upon Change of Control

  	
   

  	
  73

  
	
  SECTION 4.15

  	
   

  	
  Corporate
  Existence

  	
   

  	
  73

  
	
  SECTION 4.16

  	
   

  	
  Business
  Activities

  	
   

  	
  74

  
	
  SECTION 4.17

  	
   

  	
  Additional
  Note Guarantees

  	
   

  	
  74

  
	
  SECTION 4.18

  	
   

  	
  Limitation
  on Creation of Unrestricted Subsidiaries

  	
   

  	
  74

  
	
  SECTION 4.19

  	
   

  	
  Payments
  for Consent

  	
   

  	
  75

  
	
  SECTION 4.20

  	
   

  	
  Suspension
  of Covenants

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  SUCCESSORS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
   

  	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  	
   

  	
  76

  
	
  SECTION 5.2

  	
   

  	
  Successor
  Person Substituted

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
   

  	
  Events
  of Default

  	
   

  	
  78

  
	
  SECTION 6.2

  	
   

  	
  Acceleration

  	
   

  	
  80

  
	
  SECTION 6.3

  	
   

  	
  Other
  Remedies

  	
   

  	
  81

  
	
  SECTION 6.4

  	
   

  	
  Waiver
  of Past Defaults

  	
   

  	
  81

  
	
  SECTION 6.5

  	
   

  	
  Control
  by Majority

  	
   

  	
  81

  
	
  SECTION 6.6

  	
   

  	
  Limitation
  on Suits

  	
   

  	
  82

  
	
  SECTION 6.7

  	
   

  	
  Rights
  of Holders of Notes to Receive Payment

  	
   

  	
  82

  
	
  SECTION 6.8

  	
   

  	
  Collection
  Suit by Trustee

  	
   

  	
  82

  
	
  SECTION 6.9

  	
   

  	
  Trustee
  May File Proofs of Claim

  	
   

  	
  83

  
	
  SECTION 6.10

  	
   

  	
  Priorities

  	
   

  	
  83

  
	
  SECTION 6.11

  	
   

  	
  Undertaking
  for Costs

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
   

  	
  Duties
  and Responsibilities of Trustee

  	
   

  	
  84

  
	
  SECTION 7.2

  	
   

  	
  Reliance on Documents, Opinions, etc.

  	
   

  	
  85

  



 


 


 


 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.3

  	
   

  	
  Trustee
  and Agents May Own Notes

  	
   

  	
  86

  
	
  SECTION 7.4

  	
   

  	
  No
  Responsibility for Recitals, etc.

  	
   

  	
  87

  
	
  SECTION 7.5

  	
   

  	
  Notice
  of Defaults

  	
   

  	
  87

  
	
  SECTION 7.6

  	
   

  	
  Reports
  by Trustee to Holders of the Notes

  	
   

  	
  87

  
	
  SECTION 7.7

  	
   

  	
  Compensation
  and Expenses of Trustee

  	
   

  	
  87

  
	
  SECTION 7.8

  	
   

  	
  Resignation
  or Removal of Trustee and Successor Trustee

  	
   

  	
  88

  
	
  SECTION 7.9

  	
   

  	
  Successor
  Trustee by Merger, Etc.

  	
   

  	
  90

  
	
  SECTION 7.10

  	
   

  	
  Eligibility
  of Trustee

  	
   

  	
  90

  
	
  SECTION 7.11

  	
   

  	
  Limitation
  on Rights of Trustee as a Creditor

  	
   

  	
  91

  
	
  SECTION 7.12

  	
   

  	
  Trustee’s
  Application for Instructions from the Issuer

  	
   

  	
  91

  
	
  SECTION 7.13

  	
   

  	
  Conflicting
  Interest of Trustee

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
   

  	
  Option
  to Effect Defeasance or Covenant Defeasance

  	
   

  	
  91

  
	
  SECTION 8.2

  	
   

  	
  Defeasance
  and Discharge

  	
   

  	
  92

  
	
  SECTION 8.3

  	
   

  	
  Covenant
  Defeasance

  	
   

  	
  93

  
	
  SECTION 8.4

  	
   

  	
  Conditions
  to Defeasance or Covenant Defeasance

  	
   

  	
  93

  
	
  SECTION 8.5

  	
   

  	
  Deposited
  Money and Government Securities to Be Held in Trust; Other Miscellaneous
  Provisions

  	
   

  	
  95

  
	
  SECTION 8.6

  	
   

  	
  Repayment
  to Issuer

  	
   

  	
  96

  
	
  SECTION 8.7

  	
   

  	
  Reinstatement

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
   

  	
  Without
  Consent of Holders of the Notes

  	
   

  	
  96

  
	
  SECTION 9.2

  	
   

  	
  With
  Consent of Holders of Notes

  	
   

  	
  97

  
	
  SECTION 9.3

  	
   

  	
  Compliance
  with Trust Indenture Act

  	
   

  	
  98

  
	
  SECTION 9.4

  	
   

  	
  Revocation
  and Effect of Consents

  	
   

  	
  98

  
	
  SECTION 9.5

  	
   

  	
  Notation
  on or Exchange of Notes

  	
   

  	
  99

  
	
  SECTION 9.6

  	
   

  	
  Trustee
  to Sign Amendments, Etc.

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
   

  	
  Note
  Guarantees

  	
   

  	
  99

  
	
  SECTION 10.2

  	
   

  	
  Execution
  and Delivery of Note Guarantee

  	
   

  	
  101

  
	
  SECTION 10.3

  	
   

  	
  Severability

  	
   

  	
  101

  
	
  SECTION 10.4

  	
   

  	
  Limitation
  of Guarantors’ Liability

  	
   

  	
  101

  
	
  SECTION 10.5

  	
   

  	
  Guarantors
  May Consolidate, Etc., on Certain Terms

  	
   

  	
  102

  
	
  SECTION 10.6

  	
   

  	
  Releases

  	
   

  	
  102

  
	
  SECTION 10.7

  	
   

  	
  Release
  of a Guarantor

  	
   

  	
  103

  
	
  SECTION 10.8

  	
   

  	
  Benefits
  Acknowledged

  	
   

  	
  103

  
	
  SECTION 10.9

  	
   

  	
  Future Guarantors

  	
   

  	
  103

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
   

  	
  Trust
  Indenture Act Controls

  	
   

  	
  104

  
	
  SECTION 11.2

  	
   

  	
  Notices

  	
   

  	
  104

  
	
  SECTION 11.3

  	
   

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
   

  	
  105

  
	
  SECTION 11.4

  	
   

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  	
  105

  
	
  SECTION 11.5

  	
   

  	
  Statements
  Required in Certificate or Opinion

  	
   

  	
  106

  
	
  SECTION 11.6

  	
   

  	
  Rules by
  Trustee and Agents

  	
   

  	
  106

  
	
  SECTION 11.7

  	
   

  	
  No
  Personal Liability of Directors, Officers, Employees, Stockholders and the
  Trustee

  	
   

  	
  106

  
	
  SECTION 11.8

  	
   

  	
  Governing
  Law; Waiver of Jury Trial

  	
   

  	
  106

  
	
  SECTION 11.9

  	
   

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  	
  107

  
	
  SECTION 11.10

  	
   

  	
  Successors

  	
   

  	
  107

  
	
  SECTION 11.11

  	
   

  	
  Severability

  	
   

  	
  107

  
	
  SECTION 11.12

  	
   

  	
  Counterpart
  Originals

  	
   

  	
  107

  
	
  SECTION 11.13

  	
   

  	
  Table
  of Contents, Headings, Etc.

  	
   

  	
  107

  
	
  SECTION 11.14

  	
   

  	
  Qualification
  of Indenture

  	
   

  	
  107

  
	
  SECTION 11.15

  	
   

  	
  U.S.A.
  Patriot Act

  	
   

  	
  108

  
	
  SECTION 11.16

  	
   

  	
  Force
  Majeure

  	
   

  	
  108

  



 


iv

















 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  FORM OF
  [81⁄4][81⁄2]% SENIOR NOTE

  
	
  Exhibit B

  	
   

  	
  FORM OF
  NOTATIONAL GUARANTEE

  
	
  Exhibit C

  	
   

  	
  FORM OF
  CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO RULE
  144A

  
	
  Exhibit D

  	
   

  	
  FORM OF
  CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO
  REGULATION S

  



 


i

















 


This Indenture, dated as of March 3,
2010, is by and among Oshkosh Corporation, a Wisconsin corporation (the “Company” or the “Issuer”), the
Guarantors (as defined herein), and Wells Fargo Bank, National Association, a
national banking association, as trustee (the “Trustee”).


 


Each party agrees as follows for the benefit
of the other parties and for the equal and ratable benefit of the holders of (i) the
Issuer’s 81⁄4% Senior Notes due 2017 issued on the date hereof that contain the
restrictive legend in Exhibit A (the “Initial 2017
Notes”) and 81⁄2% Senior Notes due 2020 issued on the date hereof that
contain the restrictive legend in Exhibit A (the “Initial 2020 Notes” and, together with the Initial 2017
Notes, the “Initial  Notes”),
(ii) Exchange Notes issued in exchange for the Initial 2017 Notes pursuant
to the Registration Rights Agreement or pursuant to an effective registration
statement under the Securities Act without the restrictive legends in Exhibit A
(the “Exchange 2017 Notes”) and Exchange Notes
issued in exchange for the Initial 2020 Notes pursuant to the Registration
Rights Agreement or pursuant to an effective registration statement under the
Securities Act without the restrictive legends in Exhibit A (the “Exchange 2020 Notes” and, together with the Exchange 2017
Notes, the “Exchange Notes”), (iii) Additional
2017 Notes issued from time to time as either new Initial 2017 Notes or new
Exchange 2017 Notes (together with the original Initial 2017 Notes and any  original Exchange 2017 Notes, the “2017 Notes”) and Additional 2020 Notes issued from time to
time as either new Initial 2020 Notes or new Exchange 2020 Notes (together with
the original Initial 2020 Notes and any original Exchange 2020 Notes, the “2020 Notes” and, together with the 2017 Notes, the “Notes”).


 


ARTICLE I


 


DEFINITIONS AND INCORPORATION BY
REFERENCE


 


SECTION 1.1 
Definitions.


 


“Acquired Debt”
means Debt (1) of a Person (including an Unrestricted Subsidiary) existing
at the time such Person becomes a Restricted Subsidiary or (2) assumed in
connection with the acquisition of assets from such Person.  Acquired Debt shall be deemed to have been
Incurred, with respect to clause (1) of the preceding sentence, on the
date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of
the preceding sentence, on the date of consummation of such acquisition of
assets.


 


“Additional Interest”
means all additional interest owing on the Notes pursuant to the Registration
Rights Agreement.


 


“Additional 2017 Notes”
means 2017 Notes (other than the original Initial 2017 Notes or the original
Exchange 2017 Notes) issued pursuant to Article II hereof and otherwise in
compliance with the provisions of this Indenture.


 


“Additional 2020 Notes”
means 2020 Notes (other than the original Initial 2020 Notes or the original
Exchange 2020 Notes) issued pursuant to Article II hereof and otherwise in
compliance with the provisions of this Indenture.


 

















 


“Additional Notes”
means the Additional 2017 Notes together with the Additional 2020 Notes.


 


“Affiliate” of
any Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person.  For the purposes of this definition, “control”
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings that correspond to the foregoing.  For purposes of Section 4.11, any Person
directly or indirectly owning 15% or more of the outstanding Capital Interests of
the Company will be deemed an Affiliate.


 


“Agent” means
any Registrar, Paying Agent (so long as Trustee serves in such capacity) or
co-registrar.


 


“ASC” has the
meaning set forth in the definition of “Consolidated Net Income.”


 


“Asset Acquisition”
means:


 


(a)           an
Investment by the Company or any Restricted Subsidiary in any other Person
pursuant to which such Person shall become a Restricted Subsidiary, or shall be
merged with or into the Company or any Restricted Subsidiary; or


 


(b)           the
acquisition by the Company or any Restricted Subsidiary of the assets of any
Person which constitute all or substantially all of the assets of such Person,
any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business and
consistent with past practices.


 


“Asset Sale”
means any transfer, conveyance, sale, lease or other disposition (including,
without limitation, dispositions pursuant to any consolidation or merger) by
the Company or any of its Restricted Subsidiaries to any Person (other than to
the Company or one or more of its Restricted Subsidiaries) in any single
transaction or series of transactions of:


 


(i)            Capital
Interests in another Person (other than directors’ qualifying shares or shares
or interests required to be held by foreign nationals pursuant to local law);
or


 


(ii)           any
other property or assets (other than in the normal course of business,
including any sale or other disposition of obsolete or permanently retired
equipment);


 


provided, however, that
the term “Asset Sale” shall exclude:


 


(a)           any
asset disposition permitted by Article V that constitutes a disposition of
all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole;


 


2
















 


(b)           any
transfer, conveyance, sale, lease or other disposition of property or assets,
the gross proceeds of which (exclusive of indemnities) do not exceed in any one
or related series of transactions $10.0 million;


 


(c)           sales
or other dispositions of cash or Eligible Cash Equivalents;


 


(d)           sales
of interests in Unrestricted Subsidiaries;


 


(e)           the
sale and leaseback of any assets within 90 days of the acquisition thereof;


 


(f)            the
disposition of assets that, in the good faith judgment of the Company, are no
longer used or useful in the business of the applicable entity;


 


(g)           a
Restricted Payment that is otherwise permitted by this Indenture;


 


(h)           any
trade-in of equipment in exchange for other equipment; provided
that in the good faith judgment of the Company, the Company or such Restricted
Subsidiary receives equipment having a Fair Market Value equal to or greater
than the equipment being traded in;


 


(i)            the
concurrent purchase and sale or exchange of Related Business Assets or a
combination of Related Business Assets between the Company or any of its
Restricted Subsidiaries and another Person to the extent that the Related
Business Assets received by the Company or its Restricted Subsidiaries are of
equivalent or better market value than the Related Business Assets transferred;


 


(j)            the
creation of a Lien (but not the sale or other disposition of the property
subject to such Lien);


 


(k)           leases
or subleases in the ordinary course of business to third persons not
interfering in any material respect with the business of the Company or any of
its Restricted Subsidiaries and otherwise in accordance with the provisions of
this Indenture;


 


(l)            any
disposition by a Subsidiary to the Company or by the Company or a Subsidiary to
a Restricted Subsidiary;


 


(m)          dispositions
of accounts receivable in connection with the collection or compromise thereof
in the ordinary course of business and consistent with past practice;


 


(n)           licensing
or sublicensing of intellectual property or other general intangibles in
accordance with industry practice in the ordinary course of business;


 


(o)           any
transfer, conveyance, sale or other disposition of property or assets
consisting of auction rate securities;


 


3

















 


(p)           any
transfer of accounts receivable or other financial assets, or a fractional
undivided interest therein, by a Receivable Subsidiary in a Qualified
Receivables Transaction;


 


(q)           any
sales of accounts receivable or other financial assets, directly or indirectly,
to a Receivable Subsidiary pursuant to a Qualified Receivables Transaction for
the Fair Market Value thereof (including the issuance of equity by and/or an
increase in the value of the equity of such Receivable Subsidiary); including
cash or other financial accommodation, such as the provision of letters of
credit by such Receivable Subsidiary on behalf of or for the benefit of the
transferor of such accounts receivable or other financial assets, in an amount
at least equal to 75% of the Fair Market Value thereof (for the purposes of
this clause (q), Purchase Money Notes will be deemed to be cash);


 


(r)            foreclosures
on assets to the extent it would not otherwise result in a Default or Event of
Default; or


 


(s)           transfers
of Leasing Assets to or by a Leasing Subsidiary solely in connection with a
Leasing Transaction in the ordinary course of business and consistent with past
practice.


 


For purposes of this definition, any series
of related transactions that, if effected as a single transaction, would
constitute an Asset Sale, shall be deemed to be a single Asset Sale effected
when the last such transaction which is a part thereof is effected.


 


“Asset Sale Offer”
means an Offer to Purchase required to be made by the Company pursuant to Section 4.10
to all Holders.


 


“Attributable Debt”
in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value (discounted at the rate of interest implicit
in such transaction) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been or may be
extended).


 


“Average Life”
means, as of any date of determination, with respect to any Debt, the quotient
obtained by dividing (i) the sum of the products of (x) the number of
years from the date of determination to the dates of each successive scheduled
principal payment (including any sinking fund or mandatory redemption payment
requirements) of such Debt multiplied by (y) the amount of such principal
payment by (ii) the sum of all such principal payments.


 


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


 


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


 


4

















 


“Board of Directors”
means (i) with respect to the Company or any Restricted Subsidiary, its
board of directors or any duly authorized committee thereof; (ii) with
respect to a corporation, the board of directors of such corporation or any
duly authorized committee thereof; and (iii) with respect to any other
entity, the board of directors or similar body of the general partner or
managers of such entity or any duly authorized committee thereof.


 


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


 


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


 


“Capital Interests”
in any Person means any and all shares, interests (including Preferred
Interests), participations or other equivalents in the equity interest (however
designated) in such Person and any rights (other than Debt securities
convertible into an equity interest), warrants or options to acquire an equity
interest in such Person.


 


“Capital Lease Obligations”
means any obligation of a Person under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP; and the
amount of Debt represented by such obligation shall be the capitalized amount
of such obligations determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.


 


“Certificated Notes”
means Notes that are in the form of Exhibit A attached hereto,
other than the Global Notes.


 


“Change of Control”
means:


 


(1)           the
Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by
any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), that is or becomes the ultimate “beneficial owner” (as such
term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (1) such person or group shall be deemed to
have “beneficial ownership” of all shares that any such person or group has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50% of the Voting
Interests in the Company,


 


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


 


5

















 


(3)           the
Company sells, conveys, transfers or leases (either in one transaction or a
series of related transactions) all or substantially all of its assets to, or
merges or consolidates with, a Person other than a Restricted Subsidiary of the
Company.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time and the regulations
promulgated thereunder.


 


“Commission”
means the Securities and Exchange Commission and any successor thereto.


 


“Common Interests”
of any Person means Capital Interests in such Person that do not rank prior, as
to the payment of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of such Person,
to Capital Interests of any other class in such Person.


 


“Company” or “Issuer” has the meaning set forth in the preamble hereto
until a successor replaces it in accordance with the applicable provisions of
this Indenture and, thereafter, means the successor thereto.


 


“Company Request”
and “Company Order” mean, respectively, a
written request or order signed in the name of the Company by one of its
Officers and delivered to the Trustee.


 


“Consolidated Cash Flow
Available for Fixed Charges” means, with respect to any Person for
any period:


 


(i)            the
sum of, without duplication, the amounts for such period, taken as a single
accounting period, of:


 


(a)           Consolidated
Net Income;


 


(b)           Consolidated
Non-cash Charges;


 


(c)           Consolidated
Interest Expense to the extent the same was deducted in computing Consolidated
Net Income;


 


(d)           Consolidated
Income Tax Expense;


 


(e)           any
net loss from discontinued operations; and


 


(f)            any
costs or expenses incurred by the Company or a Restricted Subsidiary pursuant
to any management equity plan or stock option plan or any other management or
employee benefit plan or agreement, any stock subscription or shareholder
agreement, to the extent that such costs or expenses are funded with cash
proceeds contributed to the capital of the Company or net cash proceeds of an
issuance of Capital Interests of the Company (other than Redeemable Capital
Interests); less


 


6

















 


(ii)           (x) net
income from discontinued operations and (y) the amount of extraordinary,
non-recurring or unusual gains.


 


“Consolidated Fixed Charge
Coverage Ratio” means, with respect to any Person, the ratio of the
aggregate amount of Consolidated Cash Flow Available for Fixed Charges of such
Person for the four full fiscal quarters, treated as one period, for which
financial information in respect thereof is available immediately preceding the
date of the transaction (the “Transaction Date”)
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (such four full fiscal quarter period being referred to herein as the “Four Quarter Period”) to the aggregate amount of
Consolidated Fixed Charges of such Person for the Four Quarter Period.  In addition to and without limitation of the
foregoing, for purposes of this definition, “Consolidated Cash Flow Available
for Fixed Charges” and “Consolidated Fixed Charges” shall be calculated after
giving effect (i) to the cost of any compensation, remuneration or other
benefit paid or provided to any employee, consultant, Affiliate or equity owner
of the entity involved in any Asset Acquisition to the extent such costs are
eliminated or reduced (or public announcement has been made of the intent to
eliminate or reduce such costs) prior to the date of such calculation and not
replaced; and (ii) on a pro forma basis
for the period of such calculation, to any Asset Sales or other dispositions or
Asset Acquisitions, investments, mergers, consolidations and discontinued
operations (as determined in accordance with GAAP) occurring during the Four
Quarter Period or 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 other
disposition or Asset Acquisition (including the Incurrence or assumption of any
such Acquired Debt), investment, merger, consolidation or disposed operation
occurred on the first day of the Four Quarter Period.  For purposes of this definition, pro forma calculations shall be made in accordance with Article 11
of Regulation S-X promulgated under the Securities Act.


 


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


 


(i)            interest
on outstanding Debt 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
Debt in effect on the Transaction Date; and


 


(ii)           if
interest on any Debt actually Incurred on the Transaction Date may optionally
be determined at an interest rate based upon a factor of a prime or similar
rate, a eurocurrency interbank offered rate, or other rates, then the interest
rate in effect on the Transaction Date will be deemed to have been in effect
during the Four Quarter Period.


 


If such Person or any of its Restricted
Subsidiaries directly or indirectly Guarantees Debt of a third Person
(excluding credit support for third party customer financing in the ordinary
course of business) and such Guarantee or the Debt subject thereto is not
otherwise included in the calculation of Consolidated Fixed Charges, the
calculation of the Consolidated Fixed Charge Coverage Ratio shall give effect
to the Incurrence of such Guaranteed Debt as if such Person or such Subsidiary
had directly Incurred or otherwise assumed such Guaranteed Debt as if such
Guarantee occurred on the first day of the Four Quarter Period.


 


7

















 


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


 


(i)            Consolidated
Interest Expense; and


 


(ii)           the
product of (a) all dividends and other distributions paid or accrued
during such period in respect of Redeemable Capital Interests of such Person
and its Restricted Subsidiaries (other than dividends paid in Qualified Capital
Interests), times (b) a fraction, the numerator
of which is one and the denominator of which is one minus
the then current combined federal, state and local statutory tax rate of such
Person, expressed as a decimal.


 


“Consolidated Income Tax
Expense” means, with respect to any Person for any period, (x) if
such Person is not a corporation, the permitted tax payments of such Person for
such period, or (y) if such Person is a corporation, the provision for
federal, state, local and foreign income taxes of such Person and its
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP paid or accrued during such period, including any
penalties and interest related to such taxes or arising from any tax
examinations, to the extent the same were deducted in computing Consolidated
Net Income.


 


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


 


(i)            the
total interest expense of such Person and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP,
including, without limitation or duplication:


 


(a)           any
amortization of debt discount;


 


(b)           the
net cost under any Hedging Obligation or Swap Contract in respect of interest
rate protection (including any amortization of discounts);


 


(c)           the
interest portion of any deferred payment obligation;


 


(d)           all
commissions, discounts and other fees and charges owed with respect to
financing activities or similar activities; and


 


(e)           all
accrued interest;


 


(ii)           the
interest component of Capital Lease Obligations paid, accrued and/or scheduled
to be paid or accrued by such Person and its Restricted Subsidiaries during
such period determined on a consolidated basis in accordance with GAAP; and


 


(iii)          all
capitalized interest of such Person and its Restricted Subsidiaries for such
period;


 


less interest income of such Person and its
Restricted Subsidiaries for such period; provided, however, that Consolidated Interest Expense will exclude (I) the
amortization or write-off of debt 


 


8

















 


issuance costs and deferred financing fees,
commissions, fees and expenses and (II) any expensing of interim loan
commitment and other financing fees.


 


“Consolidated Net Income”
means, with respect to any Person for any period, the consolidated net income
(or loss) of such Person and its Restricted Subsidiaries for such period as
determined in accordance with GAAP, adjusted, to the extent included in
calculating such net income, by:


 


(A)          excluding,
without duplication


 


(i)            all
extraordinary gains or losses (net of fees and expenses relating to the
transaction giving rise thereto), income, expenses or charges;


 


(ii)           the
portion of net income of such Person and its Restricted Subsidiaries allocable
to minority or non-controlling interests in unconsolidated Persons or
Investments in Unrestricted Subsidiaries to the extent that cash dividends or
distributions have not actually been received by such Person or one of its
Restricted Subsidiaries; provided that
for the avoidance of doubt, Consolidated Net Income shall be increased in
amounts equal to the amounts of cash actually received;


 


(iii)          gains
or losses in respect of any Asset Sales by such Person or one of its Restricted
Subsidiaries (net of fees and expenses relating to the transaction giving rise
thereto), on an after-tax basis;


 


(iv)          the
net income (loss) from any disposed or discontinued operations or any net gains
or losses on disposed or discontinued operations, on an after-tax basis;


 


(v)           solely
for purposes of determining the amount available for Restricted Payments under
clause (c) of the first paragraph of Section 4.7, the net income of
any Restricted Subsidiary (other than a Guarantor) or such Person to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulations
applicable to that Restricted Subsidiary or its stockholders; provided that for the avoidance of doubt, Consolidated Net
Income shall be increased in amounts equal to the amounts of cash actually
received;


 


(vi)          any
gain or loss realized as a result of the cumulative effect of a change in
accounting principles;


 


(vii)         any
fees and expenses paid in connection with the issuance of the Notes;


 


(viii)        non-cash
compensation expense Incurred with any issuance of equity interests to an
employee of such Person or any Restricted Subsidiary;


 


9

















 


(ix)           any
net after-tax gains or losses attributable to the early extinguishment or
conversion of Debt;


 


(x)            any
non-cash impairment charges or asset write-off or write-down resulting from the
application of Financial Accounting Standards Board Accounting Standards
Codification (“ASC”) Topic 350 “Intangibles —
Goodwill and Other” or ASC Topic 360 “Property, Plant and Equipment,” and the
amortization of intangibles arising pursuant to ASC Topic 805 “Business
Combinations” or any related subsequent Statement of Financial Accounting
Standards;


 


(xi)           non-cash
gains, losses, income and expenses resulting from fair value accounting
required by ASC Topic 815 “Derivatives and Hedging” or any related subsequent
Statement of Financial Accounting Standards;


 


(xii)          accruals
and reserves that are established within twelve months after the closing of any
acquisition that are so required to be established as a result of such
acquisition in accordance with GAAP;


 


(xiii)         any
net unrealized gain or loss (after any offset) resulting from currency
translation gains or losses related to currency remeasurements of Debt
(including any net gain or loss resulting from obligations under Hedging
Obligations for currency exchange risk) and any foreign currency translation
gains or losses;


 


(xiv)        any
accruals and reserves that are established for expenses and losses, in respect
of equity-based awards compensation expense (provided
that if any such non-cash charges represent an accrual or reserve for potential
cash items in any future period, the cash payment in respect thereof in such
future period shall reduce Consolidated Net Income to such extent, and
excluding amortization of a prepaid cash item that was paid in a prior period);


 


(xv)         any
expenses, charges or losses that are covered by indemnification or other
reimbursement provisions in connection with any Investment or any sale,
conveyance, transfer or other disposition of assets permitted under this Indenture,
to the extent actually reimbursed, or, so long as the Issuer has made a
determination that a reasonable basis exists for indemnification or
reimbursement and only to the extent that such amount is in fact indemnified or
reimbursed within 365 days of such determination (with a deduction in the
applicable future period for any amount so added back to the extent not so
indemnified or reimbursed within such 365 days);


 


(xvi)        to
the extent covered by insurance and actually reimbursed, or, so long as the Company
has made a determination that there exists reasonable evidence that such amount
will in fact be reimbursed by the insurer and only to the extent that such
amount is in fact reimbursed within 365 days of the date of such determination
(with a deduction in the applicable future period for any 


 


10

















 


amount so added back to the
extent not so reimbursed within such 365 days), expenses, charges or losses
with respect to liability or casualty events or business interruption; and


 


(B)           including,
without duplication, dividends and distributions from joint ventures actually
received in cash by the Company.


 


“Consolidated Net Tangible Assets” of any Person means the aggregate amount of assets
of such Person and its Restricted Subsidiaries after deducting therefrom (to
the extent otherwise included therein) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the most recent quarterly or annual (as the case may be)
consolidated balance sheet (prior to the relevant date of determination) of
such Person and its Restricted Subsidiaries in accordance with GAAP.


 


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


 


“Corporate Trust Office of
the Trustee” shall be at the address of the Trustee specified in Section 11.2
hereof or such other address as to which the Trustee may give notice to the
Company.


 


“Credit Agreement”
means the Company’s senior credit facilities, dated as of December 6, 2006
(and as amended as of March 26, 2007 and March 6, 2009), between the
Company and guarantors named therein and Bank of America, N.A., as
administrative agent, and the other agents and lenders named therein, together
with all related notes, letters of credit, collateral documents, guarantees,
and any other related agreements and instruments executed and delivered in
connection therewith, in each case as amended, modified, supplemented,
restated, refinanced, refunded or replaced in whole or in part from time to
time including by or pursuant to any agreement or instrument that extends the
maturity of any Debt thereunder, or increases the amount of available
borrowings thereunder (provided that
such increase in borrowings is permitted under clause (i) of the
definition of the term “Permitted Debt”), or adds Subsidiaries of the Company
as additional borrowers or guarantors thereunder, in each case with respect to
such agreement or any successor or replacement agreement and whether by the
same or any other agent, lender, group of lenders, purchasers or debt holders.


 


“Credit Facilities”
means one or more credit facilities (including the Credit Agreement) and
indentures with banks or other lenders or investors providing for revolving or
term loans or debt or the issuance of letters of credit or bankers’
acceptances.


 


“Debt” means at
any time (without duplication), with respect to any Person, whether recourse is
to all or a portion of the assets of such Person, or non-recourse, the
following:  (i) all 


 


11

















 


indebtedness of such Person
for money borrowed or for the deferred purchase price of property, excluding
any trade payables or other current liabilities Incurred in the normal course
of business; (ii) all obligations of such Person evidenced by bonds,
debentures, notes, or other similar instruments; (iii) all reimbursement
obligations of such Person with respect to letters of credit (other than
letters of credit that are secured by cash or Eligible Cash Equivalents),
bankers’ acceptances or similar facilities (excluding obligations in respect of
letters of credit or bankers’ acceptances issued in respect of trade payables)
issued for the account of such Person; provided that
such obligations shall not constitute Debt except to the extent drawn and not
repaid within five Business Days; (iv) all indebtedness created or arising
under any conditional sale or other title retention agreement (other than
operating leases) with respect to property or assets acquired by such Person; (v) all
Capital Lease Obligations of such Person; (vi) the maximum fixed
redemption or repurchase price of Redeemable Capital Interests in such Person
at the time of determination; (vii) any Swap Contracts and Hedging
Obligations of such Person at the time of determination; (viii) Attributable
Debt with respect to any Sale and Leaseback Transaction to which such Person is
a party; and (ix) all obligations of the types referred to in clauses (i) through
(viii) of this definition of another Person, the payment of which, in
either case, (A) such Person has Guaranteed or (B) is secured by (or
the holder of such Debt or the recipient of such dividends or other
distributions has an existing right, whether contingent or otherwise, to be
secured by) any Lien upon the property or other assets of such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.  For purposes of the
foregoing:  (a) the maximum fixed
repurchase price of any Redeemable Capital Interests that do not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Interests as if such Redeemable Capital Interests were
repurchased on any date on which Debt shall be required to be determined
pursuant to this Indenture; provided, however, that, if such Redeemable Capital Interests are not
then permitted to be repurchased, the repurchase price shall be the book value
of such Redeemable Capital Interests; (b) the amount outstanding at any
time of any Debt issued with original issue discount is the principal amount of
such Debt less the remaining unamortized portion of the original issue discount
of such Debt at such time as determined in conformity with GAAP, but such Debt
shall be deemed Incurred only as of the date of original issuance thereof; (c) the
amount of any Debt described in clause (vii) is the net amount payable
(after giving effect to permitted set off) if such Swap Contracts or Hedging
Obligations are terminated at that time due to default of such Person; (d) the
amount of any Debt described in clause (ix)(A) above shall be the stated
or determinable amount of or, if not stated or if indeterminable, the maximum
reasonably anticipated liability under any such Guarantee; (e) the amount
of any Debt described in clause (ix)(B) above shall be the lesser of (I) the
maximum amount of the obligations so secured and (II) the Fair Market
Value of such property or other assets; (f) interest, fees, premium, and
expenses and additional payments, if any, will not constitute Debt and (g) the
amount of Debt of the Company and its Subsidiaries shall be calculated without
duplication of Guarantees of the Company or any Subsidiary in respect thereof.


 


Notwithstanding the foregoing, in connection
with the purchase by the Company or any Restricted Subsidiary of any business
or assets, the term “Debt” will exclude (x) customary indemnification
obligations and (y) post-closing payment adjustments to which the seller
may become entitled to the extent such payment is determined by a final closing
balance sheet or such payment is otherwise contingent; provided,
however, that, at the time of closing,
the amount of 


 


12

















 


any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and
determined, the amount is paid within 60 days thereafter.


 


The amount of Debt of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
and Guarantees as described above and, only upon the occurrence of the
contingency giving rise to the obligations, the maximum reasonably anticipated
liability of any contingent obligations (other than Guarantees) at such date; provided, however, that
in the case of Debt sold at a discount, the amount of such Debt at any time
will be the accreted value thereof at such time.  If such Person or any of its Restricted
Subsidiaries directly or indirectly Guarantees Debt of a third Person, the
amount of Debt of such Person shall give effect to the Incurrence of such
Guaranteed Debt (excluding credit support for third party customer financing in
the ordinary course of business) as if such Person or such Subsidiary had
directly Incurred or otherwise assumed such Guaranteed Debt.


 


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


 


“Depositary” means,
with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.3 hereof as the Depositary with
respect to the Notes, until a successor shall have been appointed and become
such pursuant to Section 2.6 hereof, and, thereafter, “Depositary” shall
mean or include such successor.


 


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


 


“DTC”
means The Depository Trust Company.


 


“Eligible Bank”
means a bank or trust company that (i) is licensed, chartered or organized
and existing under the laws of the United States of America or Canada, or any
state, territory, province or possession thereof, (ii) as of the time of
the making or acquisition of an Investment in such bank or trust company, has
combined capital and surplus in excess of $500.0 million and (iii) the
senior Debt of which is rated at least “A-2” by Moody’s or at least “A” by
S&P.


 


“Eligible Cash Equivalents”
means any of the following Investments:  (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof)
maturing not more than one year after the date of acquisition; (ii) time
deposits in and certificates of deposit of any Eligible Bank, provided that such Investments have a maturity date not more
than two years after date of acquisition and that the Average Life of all such
Investments is one year or less from the respective dates of acquisition; (iii) repurchase
obligations with a term of not more than 180 days for underlying securities of
the types described in clause (i) above entered into with any Eligible
Bank; (iv) direct obligations issued by any state of the United States or
any political subdivision or public instrumentality thereof, provided that 


 


13

















 


such Investments mature, or
are subject to tender at the option of the holder thereof, within 365 days
after the date of acquisition and, at the time of acquisition, have a rating of
at least A from S&P or A-2 from Moody’s (or an equivalent rating by any
other nationally recognized rating agency); (v) commercial paper of any
Person other than an Affiliate of the Company and other than structured
investment vehicles, provided that
such Investments have one of the two highest ratings obtainable from either
S&P or Moody’s and mature within 180 days after the date of acquisition;
(vi)(A) overnight and demand deposits in and bankers’ acceptances of any
Eligible Bank and (B) overnight and demand deposits in any other bank or
trust company to the extent insured by the Federal Deposit Insurance
Corporation against the Bank Insurance Fund; (vii) corporate bonds rated
A/A2 or better; (viii) money market funds substantially all of the assets
of which comprise Investments of the types described in clauses (i) through
(vii); and (ix) Investments equivalent to those referred to in clauses (i) through
(viii) above or funds equivalent to those referred to in clause (viii) above
denominated in U.S. dollars, Euros or any other foreign currency issued by a
foreign issuer or bank comparable in credit quality and tender to those
referred to in such clauses and customarily used by corporations for cash
management purposes in jurisdictions outside the United States to the extent
reasonably required in connection with any business conducted by any Restricted
Subsidiary organized or operating in such jurisdiction, all as determined in
good faith by the Company.


 


“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time.  References to sections of ERISA shall be
construed also to refer to any successor sections.


 


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


 


“Exchange 2017 Notes”
has the meaning set forth in the Preamble.


 


“Exchange 2020 Notes”
has the meaning set forth in the Preamble.


 


“Exchange Notes”
has the meaning set forth in the Preamble.


 


“Exchange Offer”
means an offer that may be made by the Issuer pursuant to the Registration
Rights Agreement to exchange Initial Notes for the Exchange Notes.


 


“Expiration Date”
has the meaning set forth in Section 3.9.


 


“Fair Market Value”
means, with respect to the consideration received or paid in any transaction or
series of transactions, the fair market value thereof as determined in good
faith by the Company.  In the case of a
transaction between the Company or a Restricted Subsidiary, on the one hand,
and a Receivable Subsidiary, on the other hand, if the Company determines in
its sole discretion that such determination is appropriate, a determination as
to Fair Market Value may be made at the commencement of the transaction and be
applicable to all dealings between the Receivable Subsidiary and the Company or
such Restricted Subsidiary during the course of such transaction.


 


“Floor Plan Financing
Facility” means any facility entered or to be entered into by the
Company or any Restricted Subsidiary pursuant to which such Person may (i) incur
Debt to


 


14
















 


purchase vehicles and/or
related equipment from vendors for the prompt resale to customers in the
ordinary course of business and (ii) grant a security interest in such
vehicles and/or related equipment to secure such borrowings.


 


“Foreign
Restricted Subsidiary” means any Restricted Subsidiary other than a
Restricted Subsidiary incorporated or otherwise organized or existing under the
laws of any state of the United States or the District of Columbia.


 


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


 


“GAAP”
means generally accepted accounting principles in the United States,
consistently applied, as 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 from time to time.


 


“Global Note Legend”
means the legend identified as such in Section 2.6(e)(ii) hereto.


 


“Global Notes”
means the Notes in global form and registered in the name of the Depositary or
its nominee that are in the form of Exhibit A attached hereto.


 


“Guarantee”
means, as applied to any Debt of another Person, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the normal
course of business), direct or indirect, in any manner, of any part or all of
such Debt, (ii) any direct or indirect obligation, contingent or
otherwise, of a Person guaranteeing or having the effect of guaranteeing the
Debt of any other Person in any manner and (iii) an agreement of a Person,
direct or indirect, contingent or otherwise, the practical effect of which is
to assure in any way the payment (or payment of damages in the event of
non-payment) of all or any part of such Debt of another Person (and “Guaranteed” and “Guaranteeing”
shall have meanings that correspond to the foregoing).


 


“Guarantor”
means any Person that executes a Note Guarantee in accordance with the
provisions of this Indenture and its respective successors and assigns (subject
to release in accordance with this Indenture).


 


“Hedging Obligations”
of any Person means the obligations of such Person pursuant to any interest
rate agreement, currency agreement or commodity agreement, excluding commodity
agreements relating to raw materials used in the ordinary course of the Company’s
business.


 


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


 


“Incur” means,
with respect to any Debt of any Person, to create, issue, incur (by conversion,
exchange or otherwise), assume, Guarantee or otherwise become liable in respect
of such Debt or the recording, as required pursuant to GAAP or other applicable
accounting standards, of any such Debt on the balance sheet of such Person; provided, however, that a
change in GAAP or an interpretation thereunder that results in an obligation of
such Person that 


 


15

















 


exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt.  Debt otherwise Incurred by a Person before it
becomes a Subsidiary of the Company shall be deemed to be Incurred at the time
at which such Person becomes a Subsidiary of the Company.  “Incurrence,” “Incurred,” “Incurrable” and
“Incurring” shall have meanings that
correspond to the foregoing.  A Guarantee
by the Company or a Restricted Subsidiary of Debt Incurred by the Company or a
Restricted Subsidiary, as applicable, shall not be a separate Incurrence of
Debt.  In addition, the following shall
not be deemed a separate Incurrence of Debt:


 


(1)           amortization
of debt discount or accretion of principal with respect to a non-interest
bearing or other discount security;


 


(2)           the
payment of regularly scheduled interest in the form of additional Debt of the
same instrument or the payment of regularly scheduled dividends on Capital
Interests in the form of additional Capital Interests of the same class and
with the same terms;


 


(3)           the
obligation to pay a premium in respect of Debt arising in connection with the
issuance of a notice of redemption or making of a mandatory offer to purchase
such Debt; and


 


(4)           unrealized
losses or charges in respect of Hedging Obligations.


 


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


 


“Initial 2017  Notes” has the meaning set forth in the preamble to this
Indenture.


 


“Initial 2020 Notes”
has the meaning set forth in the preamble to this Indenture.


 


“Initial Notes”
has the meaning set forth in the preamble to this Indenture.


 


“Initial Purchasers”
means Banc of America Securities LLC, Goldman Sachs & Co., J.P. Morgan
Securities Inc. and such other initial purchasers party to the Purchase
Agreement entered into in connection with the offer and sale of the Notes on
the Issue Date and any similar purchase agreement in connection with any
Additional Notes.


 


“Investment” by
any Person means any direct or indirect loan, advance, guarantee for the
benefit of (or other extension of credit) or capital contribution to (by means
of any transfer of cash or other property or assets to another Person or any
other payments for property or services for the account or use of another
Person) another Person, including, without limitation, the following:  (i) the purchase or acquisition of any
Capital Interest or other evidence of beneficial ownership in another Person; (ii) the
purchase, acquisition or Guarantee of the Debt of another Person; and (iii) the
purchase or acquisition of the business or assets of another Person
substantially as an entirety but shall exclude: 
(a) accounts receivable and other extensions of trade credit in
accordance with the Company’s customary practices; (b) the acquisition of
property and assets from suppliers and other vendors in the normal course of
business; and (c) prepaid expenses and workers’ compensation, utility,
lease and similar deposits, in the normal course of business.


 


16

















 


“Investment
Grade Rating” designates a rating of BBB- or higher by S&P or
Baa3 or higher by Moody’s or the equivalent of such ratings by S&P or Moody’s.
In the event that the Issuer shall select any other Rating Agency as provided
under the definition of the term “Rating Agencies,” the equivalent of such
ratings by such Rating Agency shall be used.


 


“Issue Date”
means March 3, 2010.


 


“Issuer” or “Company” has the meaning set forth in the preamble hereto
until a successor replaces it in accordance with the applicable provisions of
this Indenture and, thereafter, means the successor thereto.


 


“Leasing Assets”
means, with respect to any lease, all of the following property and interests
in property whether now existing or existing in the future or hereafter
acquired or arising: (i) all vehicles or equipment manufactured or
refurbished by the Company or any of its Subsidiaries (and truck chassis,
cement block boom trucks and similar vehicles or equipment manufactured or
refurbished by third parties) and acquired by a Leasing Subsidiary in
connection with such assets being contemporaneously leased to a third party; (ii) all
leases and other contracts or agreements relating to the lease financing by a
customer of vehicles or equipment manufactured or refurbished by the Company or
any of its Subsidiaries; (iii) all accounts receivable and other
obligations incurred by lessees in connection with the foregoing, no matter how
evidenced; (iv) all rights to any vehicles or equipment subject to any of
the foregoing after or in connection with creation of the foregoing, including,
without limitation, returned or repossessed goods; (v) all reserves and
credit balances with respect to any such lease contracts or agreements or lessees;
(vi) all letters of credit, security or guarantees for any of the
foregoing; (vii) all insurance policies or reports relating to any of the
foregoing; and (viii) all books and records relating to any of the
foregoing.


 


“Leasing Subsidiary”
means Oshkosh/McNeilus Financial Services, Inc., Oshkosh/McNeilus
Financial Services Partnership, Oshkosh Equipment Finance, L.L.C. and any other
Subsidiary (or partnership of which a Subsidiary of the Company is a general or
limited partner) that is designated by the Board of Directors of the Company as
a Leasing Subsidiary and that is exclusively engaged in Leasing Transactions
and activities incidental thereto. If at any time any Leasing Subsidiary should
engage in a material transaction or activity other than those described above,
it shall thereafter cease to be a Leasing Subsidiary for purposes of this
Indenture.


 


“Leasing Transaction”
means (i) the sale, lease or other disposition to a third party of Leasing
Assets or an interest therein; (ii) the borrowing of money secured by
Leasing Assets; or (iii) the sale or other disposition of Leasing Assets
or an interest therein to a Leasing Subsidiary followed by a financing
transaction in connection with such sale or disposition of such Leasing Assets
(whether such financing transaction is effected by such Leasing Subsidiary or
by a third party to whom such Leasing Subsidiary sells such Leasing Assets or
interests therein); provided that in each of the foregoing, the Company or its
Restricted Subsidiaries receive or have received at least 95% of the aggregate
sale price attributed to the vehicles and equipment that underlie the leases
financed in such transaction.


 


17

















 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in The City
of New York, the city in which the designated Corporate Trust Office of the
Trustee is located or at a place of payment are authorized or required by law,
regulation or executive order to remain closed. 
If a payment date in a place of payment is a Legal Holiday, payment
shall be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.


 


“Lien” means,
with respect to any property or other asset, any mortgage, deed of trust, deed
to secure debt, pledge, hypothecation, assignment for security purposes,
deposit arrangement, security interest, lien (statutory or otherwise), charge,
easement, encumbrance or other security agreement or arrangement of any kind or
nature whatsoever on or with respect to such property or other asset
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).


 


“Moody’s” means
Moody’s Investors Service, Inc. and any successor to its rating agency
business.


 


“Net Cash Proceeds”
means, with respect to Asset Sales of any Person, cash and Eligible Cash
Equivalents received, net of:  (i) all
reasonable out-of-pocket costs and expenses of such Person incurred in
connection with such a sale, including, without limitation, all legal,
accounting, title and recording tax expenses, commissions and other fees and
expenses incurred and all federal, state, foreign and local taxes arising in
connection with such an Asset Sale that are paid or required to be accrued as a
liability under GAAP by such Person; (ii) all payments made by such Person
on any Debt that is secured by such properties or other assets in accordance
with the terms of any Lien upon or with respect to such properties or other
assets or that must, by the terms of such Lien or such Debt, or in order to
obtain a necessary consent to such transaction or by applicable law, be repaid
to any other Person (other than the Company or a Restricted Subsidiary thereof)
in connection with such Asset Sale; and (iii) all contractually required
distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person as a result of such transaction; provided, however,
that:  (a) in the event that any
consideration for an Asset Sale (which would otherwise constitute Net Cash
Proceeds) is required by (I) contract to be held in escrow pending
determination of whether a purchase price adjustment will be made or (II) GAAP
to be reserved against other liabilities in connection with such Asset Sale,
such consideration (or any portion thereof) shall become Net Cash Proceeds only
at such time as it is released to such Person from escrow or otherwise; and (b) any
non-cash consideration received in connection with any transaction, which is
subsequently converted to cash, shall become Net Cash Proceeds only at such
time as it is so converted.


 


“Non-Recourse Receivable
Subsidiary Indebtedness” has the meaning set forth in the definition
of “Receivable Subsidiary.”


 


“Note Custodian”
means the Trustee when serving as custodian for the Depositary with respect to
the Global Notes, or any successor entity thereto.


 


“Note Guarantee”
means any guarantee of the Notes by any Guarantor pursuant to this Indenture.


 


18

















 


“Notes” has the
meaning set forth in the preamble to this Indenture.


 


“Obligations”
means any principal, premium, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar
proceeding at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with
respect to letters of credit and bankers’ acceptances), damages and other
liabilities, and guarantees of payment of such principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities, payable
under the documentation governing any Debt.


 


“Offer” has the
meaning set forth in the definition of “Offer to Purchase.”


 


“Offer to Purchase”
means a written offer (the “Offer”) sent by
the Company by first class mail, postage prepaid, to each Holder at its address
appearing in the Note Register on the date of the Offer, offering to purchase
up to the aggregate principal amount of Notes set forth in such Offer at the
purchase price set forth in such Offer (as determined pursuant to this
Indenture).  Unless otherwise required by
applicable law, the offer shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase which shall be,
subject to any contrary requirements of applicable law, not less than 30 days
or more than 60 days after the date of mailing of such Offer and a settlement
date (the “Purchase Date”) for purchase of Notes
within five Business Days after the Expiration Date.  The Company shall notify the Trustee at least
15 days (or such shorter period as is acceptable to the Trustee) prior to the
mailing of the Offer of the Company’s obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Company or, at the Company’s request, by
the Trustee in the name and at the expense of the Company.  The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Offer to Purchase.  The Offer shall also
state:


 


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


 


(2)           the
Expiration Date and the Purchase Date;


 


(3)           the
aggregate principal amount of the outstanding Notes offered to be purchased
pursuant to the Offer to Purchase (including, if less than 100%, the manner by
which such amount has been determined pursuant to Indenture covenants requiring
the Offer to Purchase) (the “Purchase Amount”);


 


(4)           the
purchase price to be paid by the Company for each $2,000 principal amount of
Notes (and integral multiples of $1,000 in excess thereof) accepted for payment
(as specified pursuant to this Indenture) (the “Purchase
Price”);


 


(5)           that
the Holder may tender all or any portion of the Notes registered in the name of
such Holder and that any portion of a Note tendered must be tendered in a minimum
amount of $2,000 principal amount (and integral multiples of $1,000 in excess
thereof);


 


19

















 


(6)           the
place or places where Notes are to be surrendered for tender pursuant to the
Offer to Purchase, if applicable;


 


(7)           that,
unless the Company defaults in making such purchase, any Note accepted for
purchase pursuant to the Offer to Purchase will cease to accrue interest on and
after the Purchase Date, but that any Note not tendered or tendered but not purchased
by the Company pursuant to the Offer to Purchase will continue to accrue
interest at the same rate;


 


(8)           that,
on the Purchase Date, the Purchase Price will become due and payable upon each
Note accepted for payment pursuant to the Offer to Purchase;


 


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


 


(10)         that
Holders will be entitled to withdraw all or any portion of Notes tendered if
the Company (or its paying agent) receives, not later than the close of
business on the Expiration Date, a facsimile transmission or letter setting
forth the name of the Holder, the aggregate principal amount of the Notes the
Holder tendered, the certificate number of the Note the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender;


 


(11)         that
(a) if Notes having an aggregate principal amount less than or equal to
the Purchase Amount are duly tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase all such Notes and (b) if Notes
having an aggregate principal amount in excess of the Purchase Amount are
tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Notes having an aggregate principal amount equal to the Purchase
Amount on a pro rata basis (with such adjustments as
may be deemed appropriate so that only Notes in denominations of $2,000
principal amount or integral multiples of $1,000 in excess thereof shall be
purchased); and


 


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


 


“Offering Memorandum”
means the offering memorandum related to the issuance of the Initial Notes on
the Issue Date, dated February 26, 2010.


 


20

















 


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


 


“Officers’ Certificate”
means a certificate signed by two Officers of the Company or a Guarantor, as
applicable, one of whom must be the principal executive officer, the principal
financial officer or the principal accounting officer of the Company or such
Guarantor, as applicable.


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel who may be an employee of
or counsel to the Company and who shall be reasonably acceptable to the
Trustee. Each such opinion shall include the statements provided for in
Sections 2.1(f), 2.2(b), 11.4 and 11.5 to the extent required by the provisions
of such Sections.


 


“Participant”
means, with respect to DTC, a Person who has an account with DTC.


 


“Paying Agent”
means any Person authorized by the Issuer to pay the principal of, premium, if
any, or interest on, or redemption, purchase, retirement, defeasance, covenant
defeasance or similar payment with respect to, any Notes on behalf of the
Issuer.


 


“Permitted Business”
means any business similar in nature to any business conducted by the Company
and the Restricted Subsidiaries on the Issue Date and any business reasonably
ancillary, incidental, complementary or related to, or a reasonable extension,
development or expansion of, the business conducted by the Company and the
Restricted Subsidiaries on the Issue Date, in each case, as determined in good
faith by the Company.


 


“Permitted Debt”
means


 


(i)            Debt
Incurred pursuant to any Credit Facilities in an aggregate principal amount at
any one time outstanding not to exceed the greater of (A) $1,900.0 million
minus any amount used to permanently repay such Obligations (or permanently
reduce commitments with respect thereto) pursuant to Section 4.10, and (B) an
amount equal to 3.5 multiplied by the Consolidated Cash Flow Available for
Fixed Charges of the Company and its Restricted Subsidiaries for the most
recent Four Quarter Period, after
giving effect on a pro forma basis for the period of such calculation to
any Asset Sales or other dispositions or Asset Acquisitions, investments,
mergers, consolidations and discontinued operations (as determined in
accordance with GAAP) occurring during the Four Quarter Period or any time
subsequent to the last day of the Four Quarter Period and on or prior to the
determination date, as if such Asset Sale or other disposition or Asset
Acquisition (including the Incurrence or assumption of any Acquired Debt),
investment, merger, consolidation or disposed operation occurred on the first
day of the Four Quarter Period. For purposes of this definition, pro forma
calculations shall be made in accordance with Article 11 of Regulation S-X
promulgated under the Securities Act;


 


(ii)           Debt
under the Notes issued on the Issue Date (and any Exchange Notes pursuant to
the Registration Rights Agreement) and contribution, indemnification and 


 


21

















 


reimbursement obligations
owed by the Company or any Guarantor to any of the other of them in respect of
amounts paid or payable on such Notes;


 


(iii)          Guarantees
of the Notes (and any Exchange Notes pursuant to the Registration Rights
Agreement);


 


(iv)          Debt
of the Company or any Restricted Subsidiary outstanding on the Issue Date
(other than (A) clause (i), (ii) or (iii) above and (B) Debt
being repaid with the proceeds of the offering of the Initial Notes issued on
the Issue Date);


 


(v)           Debt
owed to and held by the Company or a Restricted Subsidiary;


 


(vi)          Guarantees
Incurred by the Company of Debt of a Restricted Subsidiary otherwise permitted
to be Incurred under this Indenture;


 


(vii)         Guarantees
by any Restricted Subsidiary of Debt of the Company or any Restricted
Subsidiary, including Guarantees by any Restricted Subsidiary of Debt under the
Credit Agreement, provided that (a) such Debt
is Permitted Debt or is otherwise Incurred in accordance with Section 4.9
hereof and (b) if the Debt being guaranteed is subordinated to the Notes,
such Guarantees are subordinated to the Notes to the same extent as the Debt
being guaranteed;


 


(viii)        Debt
Incurred in respect of workers’ compensation claims and self-insurance
obligations, and, for the avoidance of doubt, indemnity, bid, performance,
warranty, release, appeal, surety and similar bonds, letters of credit for
operating purposes and completion guarantees provided or Incurred (including
Guarantees thereof) by the Company or a Restricted Subsidiary in the ordinary
course of business;


 


(ix)           Debt
under Swap Contracts and Hedging Obligations;


 


(x)            Debt
owed by the Company to any Restricted Subsidiary, or by any Restricted
Subsidiary to the Company or to any other Restricted Subsidiary, provided that if for any reason such Debt ceases to be held
by the Company or a Restricted Subsidiary, as applicable, such Debt shall cease
to be Permitted Debt and shall be deemed Incurred as Debt of the Company for
purposes of this Indenture;


 


(xi)           Debt
of the Company or any Restricted Subsidiary pursuant to Capital Lease
Obligations, Synthetic Lease Obligations and Purchase Money Debt, provided that the aggregate principal amount of such Debt
outstanding at any time may not exceed $150.0 million in the aggregate;


 


(xii)          Debt
arising from agreements of the Company or a Restricted Subsidiary providing for
indemnification, contribution, earnout, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
acquisition or disposition of any business, assets or Capital Interests of a
Restricted Subsidiary otherwise permitted under this Indenture;


 


22

















 


(xiii)         the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of Preferred Interests; provided, however, that:


 


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


 


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


 


shall
be deemed, in each case, to constitute an issuance of such Preferred Interests
by such Restricted Subsidiary that was not permitted by this clause (xiii);


 


(xiv)        Debt
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided, however, that such Debt is extinguished within five Business
Days of Incurrence and Debt arising from negative account balances in cash
pooling arrangements arising in the ordinary course of business;


 


(xv)         Debt
owing to the Company by any Subsidiary or Debt owing to any Guarantor
Subsidiary by the Company or another Subsidiary;


 


(xvi)        Debt
incurred by the Company or any Subsidiary pursuant to any Floor Plan Financing
Facility that (A) is non-interest bearing and has a stated maturity of 120
days or less, or (B) does not exceed any time outstanding $50.0 million;


 


(xvii)       obligations
of the Company or its Subsidiaries in respect of customer advances received and
held in the ordinary course of business;


 


(xviii)      Debt
constituting credit support for third party customer financing in the ordinary
course of business;


 


(xix)         performance
bonds or performance guaranties (or bank guaranties or letters of credit in
lieu thereof) entered into in the ordinary course of business;


 


(xx)          Debt
incurred by a Leasing Subsidiary in a Leasing Transaction that is non-recourse
to the Company or any Restricted Subsidiary of the Company (other than Leasing
Subsidiaries);


 


(xxi)         Guarantees
by the Company with respect to up to $10.0 million at any time outstanding of
Debt of Leasing Subsidiaries;


 


(xxii)        Debt
of the Company or any Restricted Subsidiary not otherwise permitted pursuant to
this definition, in an aggregate principal amount not to exceed $250.0 million
at any time outstanding; and


 


(xxiii)       Refinancing
Debt.


 


23

















 


Notwithstanding anything herein to the
contrary, Debt permitted under clauses (i), (ii), (xi) and (xv) of this
definition of “Permitted Debt” shall not constitute “Refinancing Debt” under
clause (xxiii) of this definition of “Permitted Debt.”


 


“Permitted Liens”
means:


 


(a)           Liens
existing at the Issue Date;


 


(b)           Liens
that secure (A) Debt under Credit Facilities permitted pursuant to clause (i) of
the definition of “Permitted Debt,” (B) Hedging Obligations and Swap
Contracts relating to such Credit Facilities and permitted under the agreements
related thereto and (C) fees, expenses and other amounts payable under
such Credit Facilities or payable pursuant to cash management agreements or
agreements with respect to similar banking services relating to such Credit
Facilities and permitted under the agreements related thereto;


 


(c)           any
Lien for taxes or assessments or other governmental charges or levies not then
delinquent for more than 90 days, that are then remaining payable without
penalty or which are being contested in good faith and for which adequate
reserves are being maintained to the extent required by GAAP and, in each case,
to the extent no notice of lien has been filed or recorded under the Code;


 


(d)           any
warehousemen’s, materialmen’s, landlord’s or other similar Liens arising by law
for sums not then due and payable (or which, if due and payable, are being
contested in good faith and with respect to which adequate reserves are being
maintained, to the extent required by GAAP);


 


(e)           survey
exceptions, encumbrances, easements or reservations of, or rights of others
for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other similar restrictions as to
the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which do not individually
or in the aggregate materially adversely affect the value of the Company and
its Restricted Subsidiaries taken as a whole or materially impair the operation
of the business of the Company and its Restricted Subsidiaries taken as a
whole;


 


(f)            pledges
or deposits (i) in connection with workers’ compensation, unemployment
insurance and other types of statutory obligations or the requirements of any
official body; (ii) to secure the performance of tenders, bids, surety or
performance bonds, leases, purchase, construction, sales or servicing contracts
(including utility contracts) and other similar obligations Incurred in the
ordinary course of business; (iii) to obtain or secure obligations with
respect to letters of credit, Guarantees, bonds or other sureties or assurances
given in connection with the activities described in clauses (i) and (ii) above,
in each case not Incurred or made in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the deferred purchase
price of property or services or imposed by ERISA or the Code in connection
with a “plan” (as defined in ERISA); or (iv) arising in connection with
any attachment unless such Liens 


 


24

















 


shall not be satisfied or
discharged or stayed pending appeal within 60 days after the entry thereof or
the expiration of any such stay;


 


(g)           Liens
on property or assets of a Person existing at the time such Person acquires
such property or assets, is merged with or into or consolidated with the
Company or a Restricted Subsidiary, or becomes a Restricted Subsidiary (and not
created or Incurred in anticipation of such transaction), provided that such Liens are not extended
to the property and assets of the Company and its Restricted Subsidiaries other
than the property or assets acquired and the proceeds thereof;


 


(h)           Liens
securing Debt of a Restricted Subsidiary owed to and held by the Company or a Restricted
Subsidiary thereof;


 


(i)            for
the avoidance of doubt, other Liens (not securing Debt) incidental to the
conduct of the business of the Company or any of its Restricted Subsidiaries,
as the case may be, or the ownership of their assets which do not individually
or in the aggregate materially adversely affect the value of the Company and
its Restricted Subsidiaries taken as a whole or materially impair the operation
of the business of the Company and its Restricted Subsidiaries taken as a
whole;


 


(j)            Liens
to secure any extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, in
accordance with the terms of this Indenture of any Debt secured by Liens
referred to in clauses (a), (b), (g), (m) and (w) hereof to the
extent  that such Liens do not
extend to any other property or assets and the principal amount of the
obligations secured by such Liens is not increased;


 


(k)           Liens
in favor of customs or revenue authorities arising as a matter of law to secure
payment of custom duties in connection with the importation of goods incurred
in the ordinary course of business;


 


(l)            licenses
of intellectual property granted in the ordinary course of business;


 


(m)          Liens
to secure Capital Lease Obligations, Synthetic Lease Obligations and Purchase
Money Debt permitted to be incurred pursuant to clause (xi) of the definition
of “Permitted Debt”; provided that
such Liens do not extend to or cover any assets other than such assets acquired
or constructed after the Issue Date with the proceeds of such Capital Lease
Obligation, Synthetic Lease Obligation or Purchase Money Debt and any assets
that, in the ordinary course of business, are subject to Liens in favor of the
same creditor for other assets subject to existing Capital Lease Obligations,
Synthetic Lease Obligations and Purchase Money Debt;


 


(n)           Liens
in favor of the Company or any Guarantor;


 


(o)           Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligation in respect of banker’s acceptances issued or
created in the ordinary course of business for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;


 


25
















 


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


 


(q)           Liens
on property or shares of Capital Interests of another Person at the time such
other Person becomes a Subsidiary of such Person; provided,
however, that (i) the Liens may not
extend to any other property owned by such Person or any of its Restricted
Subsidiaries (other than assets and property affixed or appurtenant thereto)
and (ii) such Liens are not created or incurred in connection with, or in
contemplation of, such other Person becoming such a Restricted Subsidiary;


 


(r)            Liens
(i) that are contractual rights of set-off (A) relating to the
establishment of depository relations with banks not given in connection with
the issuance of Debt, (B) relating to pooled deposit or sweep accounts of
the Company or any of its Restricted Subsidiaries to permit satisfaction of
overdraft or similar obligations and other cash management activities incurred
in the ordinary course of business of the Company and/or any of its Restricted
Subsidiaries or (C) relating to purchase orders and other agreements
entered into with customers of the Company or any of its Restricted
Subsidiaries in the ordinary course of business and (ii) of a collection
bank arising under Section 4-210 of the Uniform Commercial Code on items
in the course of collection, (Y) encumbering reasonable customary initial
deposits and margin deposits and attaching to commodity trading accounts or
other brokerage accounts incurred in the ordinary course of business, and (Z) in
favor of banking institutions arising as a matter of law or pursuant to
customary account agreements encumbering deposits (including the right of
set-off) and which are within the general parameters customary in the banking
industry;


 


(s)           Liens
securing judgments for the payment of money not constituting an Event of
Default under clause (7) of Section 6.1 so long as such Liens are
adequately bonded and any appropriate legal proceedings that may have been duly
initiated for the review of such judgment have not been finally terminated or
the period within which such proceedings may be initiated has not expired;


 


(t)            leases,
subleases, licenses or sublicenses granted to others in the ordinary course of
business which do not materially interfere with the ordinary conduct of the
business of the Company or any Restricted Subsidiaries and do not secure any
Debt;


 


(u)           any
interest of title of an owner of equipment or inventory on loan or consignment
to the Company or any of its Restricted Subsidiaries and Liens arising from
Uniform Commercial Code financing statement filings regarding operating leases
entered into by the Company or any Restricted Subsidiary in the ordinary course
of business;


 


26

















 


(v)           deposits
in the ordinary course of business to secure liability to insurance carriers;


 


(w)          Liens
securing the Notes and the Note Guarantees;


 


(x)            Liens
securing Hedging Obligations and Swap Contracts so long as any related Debt is
permitted to be Incurred under this Indenture;


 


(y)           options,
put and call arrangements, rights of first refusal and similar rights relating
to Investments in joint ventures, partnerships and the like permitted to be
made under this Indenture;


 


(z)            Liens
attaching to earnest money deposits (or equivalent deposits otherwise named)
made in connection with proposed acquisitions in an amount not to exceed $10.0
million;


 


(aa)         (i) set-off
rights not otherwise set forth in clause (r) above, or (ii) Liens
arising in connection with repurchase agreements that constitute Investments;


 


(bb)         Liens
on cash and other deposits or net worth imposed in connection with contracts
entered into the ordinary course of business;


 


(cc)         Liens
on vehicles or related property securing Obligations under any Floor Plan
Financing Facility permitted by this Indenture incurred in the ordinary course
of business, provided that the aggregate principal amount of all Obligations at
any time outstanding under all Floor Plan Financing Facilities after giving
effect to such incurrence does not exceed the total cost of the vehicles and
equipment securing such Obligations;


 


(dd)         Liens
on assets of a Leasing Subsidiary securing Debt under Leasing Transactions that
was permitted to be Incurred under this Indenture, and Liens on Leasing Assets
for which the applicable lessee is not permitted by applicable law to hold
title to such Leasing Assets;


 


(ee)         Liens
on the Capital Interests of a Receivable Subsidiary and accounts receivable and
other financial and related assets described in the definition of Qualified
Receivables Transaction, in each case, incurred in connection with a Qualified
Receivables Transaction and in an aggregate amount not to exceed $250.0
million;


 


(ff)           Liens
securing Obligations for third party customer financing in the ordinary course
of business; and


 


(gg)         Liens
not otherwise permitted under this Indenture in an aggregate amount not to
exceed $250.0 million.


 


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


 


27

















 


“Preferred Interests,”
as applied to the Capital Interests in any Person, means Capital Interests in
such Person of any class or classes (however designated) that rank prior, as to
the payment of dividends or as to the distribution of assets upon any voluntary
or involuntary liquidation, dissolution or winding up of such Person, to shares
of Common Interests in such Person.


 


“Purchase Agreement”
means the purchase agreement dated February 26, 2010 by and among the
Company, the Initial Purchasers and the Guarantors named therein.


 


“Purchase Amount”
has the meaning set forth in the definition of “Offer to Purchase.”


 


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


 


“Purchase Money Debt”
means Debt


 


(i)            Incurred
to finance the purchase or construction (including additions and improvements
thereto) of any assets (other than Capital Interests) of such Person or any
Restricted Subsidiary; and


 


(ii)           that
is secured by a Lien on such assets where the lender’s sole security is to the
assets so purchased or constructed or substantially similar assets leased or
purchased from such lender under a master lease or similar agreement and
proceeds of the foregoing; and in either case that does not exceed 100% of the
cost and to the extent the purchase or construction prices for such assets are
or should be included in “addition to property, plant or equipment” in
accordance with GAAP.


 


“Purchase
Money Note” means a promissory note of a Receivable Subsidiary to
the Company or any Restricted Subsidiary, which note must be repaid from cash
available to the Receivable Subsidiary, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and amounts
paid in connection with the purchase of newly generated receivables or other
financial assets.  The repayment of a
Purchase Money Note may be subordinated to the repayment of other liabilities
of the Receivable Subsidiary on terms determined in good faith by the Company
to be substantially consistent with market practice in connection with
Qualified Receivables Transactions.


 


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


 


“Qualified Capital
Interests” in any Person means a class of Capital Interests other
than Redeemable Capital Interests.


 


“Qualified Equity Offering”
means (i) an underwritten public equity offering of Qualified Capital
Interests pursuant to an effective registration statement under the Securities
Act yielding gross proceeds to either of the Company, or any direct or indirect
parent company of the Company, of at least $25.0 million or (ii) a private
equity offering of Qualified Capital Interests of the Company, or any direct or
indirect parent company of the Company, other than (x) any such public or
private sale to an entity that is an Affiliate of the Company and (y) any
public offerings registered on Form S-8; provided
that, in the case of an offering or sale by a direct or 


 


28

















 


indirect parent company of
the Company, such parent company contributes to the capital of the Company the
portion of the net cash proceeds of such offering or sale necessary to pay the
aggregate Redemption Price (plus accrued interest to the redemption date) of
the Notes to be redeemed pursuant to Sections 3.7(a)(ii) and 3.7(b)(ii).


 


“Qualified Receivables
Transaction” means any transaction or series of transactions entered
into by the Company or any of its Restricted Subsidiaries pursuant to which the
Company or such Restricted Subsidiary transfers to (a) a Receivable
Subsidiary (in the case of a transfer by the Company or any of its Restricted
Subsidiaries) or (b) any other Person (in the case of a transfer by a
Receivable Subsidiary), or grants a security interest in, any accounts
receivable or other financial assets (whether now existing or arising in the
future) of the Company or any of its Restricted Subsidiaries, and any assets
related thereto, including, without limitation, all collateral securing such
accounts receivable or other financial assets, all contracts and all Guarantees
or other obligations in respect of such accounts receivable or other financial
assets, proceeds of such accounts receivable or other financial assets and
other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with an accounts receivable or
other financial asset financing transaction; provided
such transaction is on market terms as determined in good faith by the Company
at the time the Company or such Restricted Subsidiary enters into such
transaction.


 


“Rating Agencies”
means Moody’s and S&P or if Moody’s or S&P or both shall not make a
rating on the Notes publicly available other than as a result of actions by the
Company, a nationally recognized statistical rating agency or agencies, as the
case may be, selected by the Company which shall be substituted for Moody’s or
S&P or both, as the case may be.


 


“Receivable Subsidiary”
means a Subsidiary of the Company:


 


(1)           that
is formed solely for the purpose of, and that engages in no activities other
than activities in connection with, financing accounts receivable or other
financial assets of the Company and/or its Restricted Subsidiaries, including
providing letters of credit on behalf of or for the benefit of the Company
and/or its Restricted Subsidiaries;


 


(2)           that
is designated by the Board of Directors as a Receivable Subsidiary pursuant to
an Officers’ Certificate that is delivered to the Trustee;


 


(3)           that
is either (a) a Restricted Subsidiary or (b) an Unrestricted
Subsidiary designated in accordance with Section 4.18;


 


(4)           no
portion of the Debt or any other obligation (contingent or otherwise) of which (a) is
at any time Guaranteed by the Company or any Restricted Subsidiary (excluding
Guarantees of obligations (other than any Guarantee of Debt) pursuant to
Standard Securitization Undertakings), (b) is at any time recourse to or
obligates the Company or any Restricted Subsidiary in any way, other than
pursuant to Standard Securitization Undertakings, or (c) subjects any
asset of the Company or any other Restricted Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings (such Debt, “Non-Recourse Receivable Subsidiary Indebtedness”);


 


29

















 


(5)           with
which neither the Company nor any Restricted Subsidiary has any material contract,
agreement, arrangement or understanding other than (a) contracts,
agreements, arrangements and understandings entered into in the ordinary course
of business 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 in connection with a Qualified Receivables
Transaction as determined in good faith by the Board of Directors of the
Company, (b) fees payable in the ordinary course of business in connection
with servicing accounts receivable or other financial assets in connection with
such a Qualified Receivables Transaction as determined in good faith by the
Board of Directors of the Company and (c) any Purchase Money Note or
equity interest issued by such Receivable Subsidiary to the Company or a
Restricted Subsidiary; and


 


(6)           with
respect to which neither the Company nor any other Restricted Subsidiary has
any obligation (a) to subscribe for additional shares of Capital Interests
therein or make any additional capital contribution or similar payment or
transfer thereto except in connection with a Qualified Receivables Transaction
or (b) to maintain or preserve the solvency or any balance sheet term,
financial condition, level of income or results of operations thereof.


 


“Redeemable Capital
Interests” in any Person means any equity security of such Person
that by its terms (or by terms of any security into which it is convertible or
for which it is exchangeable), or otherwise (including the passage of time or
the happening of an event), is required to be redeemed, is redeemable at the
option of the holder thereof in whole or in part (including by operation of a
sinking fund), or is convertible or exchangeable for Debt of such Person at the
option of the holder thereof, in whole or in part, at any time prior to the
Stated Maturity of the Notes; provided that
only the portion of such equity security which is required to be redeemed, is
so convertible or exchangeable or is so redeemable at the option of the holder
thereof before such date will be deemed to be Redeemable Capital
Interests.  Notwithstanding the preceding
sentence, any equity security that would constitute Redeemable Capital
Interests solely because the holders of the equity security have the right to
require the Company to repurchase such equity security upon the occurrence of a
Change of Control or an Asset Sale will not constitute Redeemable Capital
Interests if the terms of such equity security provide that the Company may not
repurchase or redeem any such equity security pursuant to such provisions
unless such repurchase or redemption complies with Section 4.7.  The amount of Redeemable Capital Interests
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Redeemable Capital Interests or portion thereof, exclusive
of accrued dividends.


 


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


 


“Refinancing Debt”
means Debt that refunds, refinances, renews, replaces or extends any Debt
permitted to be Incurred by the Company or any Restricted Subsidiary pursuant
to the terms of this Indenture, whether involving the same or any other lender
or creditor or group of lenders or creditors (including, with respect to any
Guarantee of Debt, the refinancing of the 


 


30

















 


guaranteed Debt and
incurrence of a Guarantee with respect to the new Debt), but only to the extent
that


 


(i)            the
Refinancing Debt is subordinated to the Notes to at least the same extent as
the Debt being refunded, refinanced or extended, if such Debt was subordinated
to the Notes,


 


(ii)           the
Refinancing Debt is scheduled to mature either (a) no earlier than the
Debt being refunded, refinanced or extended or (b) at least 91 days after
the maturity date of the Notes,


 


(iii)          the
Refinancing Debt has an Average Life at the time such Refinancing Debt is
Incurred that is equal to or greater than the Average Life of the Debt being
refunded, refinanced, renewed, replaced or extended,


 


(iv)          such
Refinancing Debt is in an aggregate principal amount that is less than or equal
to the sum of (a) the aggregate principal or accreted amount (in the case
of any Debt issued with original issue discount, as such) then outstanding
under the Debt being refunded, refinanced, renewed, replaced or extended, (b) the
amount of accrued and unpaid interest, if any, and premiums owed, if any, not
in excess of preexisting prepayment provisions on such Debt being refunded,
refinanced, renewed, replaced or extended and (c) the amount of reasonable
and customary fees, expenses and costs related to the Incurrence of such
Refinancing Debt, and


 


(v)           such
Refinancing Debt is Incurred by the same Person (or its successor) that
initially Incurred the Debt being refunded, refinanced, renewed, replaced or
extended, except that the Company may Incur Refinancing Debt to refund,
refinance, renew, replace or extend Debt of any Restricted Subsidiary of the
Company.


 


“Registration Rights
Agreement” means the Registration Rights Agreement, to be dated the
date of this Indenture, among the Company, the Guarantors and the Initial
Purchasers and any similar agreement entered into in connection with any
Additional Notes.


 


“Related Business Assets”
means assets (other than cash or Eligible Cash Equivalents) used or useful in a
Permitted Business, provided that
any assets received by the Company or a Restricted Subsidiary in exchange for
assets transferred by the Company or a Restricted Subsidiary shall not be
deemed to be Related Business Assets if they consist of securities of a Person,
unless upon receipt of the securities of such Person, such Person would become
a Restricted Subsidiary.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the Corporate
Trust Office of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


31

















 


“Restricted Global Note”
means a Global Note that is a Restricted Note.


 


“Restricted Note”
has the meaning set forth in Rule 144(a)(3) under the Securities Act
for the term “restricted securities”; provided, however, that the Trustee shall be entitled to request and
conclusively rely upon an Opinion of Counsel with respect to whether any Note
is a Restricted Note.  Restricted Notes
are required to bear the Restricted Notes Legend.


 


“Restricted Notes Legend”
means the legend identified as such in Section 2.6(e)(i) hereto.


 


“Restricted Payment”
is defined to mean any of the following:


 


(a)           any
dividend or other distribution declared and paid on the Capital Interests in
the Company or on the Capital Interests in any Restricted Subsidiary of the
Company that are held by, or declared and paid to, any Person other than the
Company or a Restricted Subsidiary of the Company (other than


 


(i)            dividends,
distributions or payments made solely in Qualified Capital Interests in the
Company and


 


(ii)           dividends
or distributions payable to the Company or a Restricted Subsidiary of the
Company or to the holders of Capital Interests of a Restricted Subsidiary on a pro rata basis);


 


(b)           any
payment made by the Company or any of its Restricted Subsidiaries to purchase,
redeem, acquire or retire any Capital Interests in the Company (including the
conversion into, or exchange for, Debt of any Capital Interests) other than any
such Capital Interests owned by the Company or any Restricted Subsidiary (other
than a payment made solely in Qualified Capital Interests in the Company);


 


(c)           any
payment made by the Company or any of its Restricted Subsidiaries (other than a
payment made solely in Qualified Capital Interests in the Company) to redeem,
repurchase, defease (including an in substance or legal defeasance) or
otherwise acquire or retire for value (including pursuant to mandatory
repurchase covenants), prior to any scheduled maturity, scheduled sinking fund
or mandatory redemption payment, Debt of the Company or any Guarantor that is
subordinate in right of payment to the Notes or Note Guarantees (excluding any
Debt owed to the Company or any Restricted Subsidiary); except payments of
principal and interest in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case, within one year of the
due date thereof; and


 


(d)           any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary.


 


“Restricted
Subsidiary” means any Subsidiary that has not been designated as an “Unrestricted
Subsidiary” in accordance with this Indenture.


 


“S&P” means
Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating agency business.


 


32

















 


“Sale and Leaseback
Transaction” means any direct or indirect arrangement pursuant to
which property is sold or transferred by the Company or a Restricted Subsidiary
and is thereafter leased back as a capital lease by the Company or a Restricted
Subsidiary.


 


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


 


“Significant Subsidiary”
has the meaning set forth in Rule 1-02 of Regulation S-X under the
Securities Act and Exchange Act, but shall not include any Unrestricted
Subsidiary.


 


“Standard Securitization
Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Restricted Subsidiary which are
reasonably customary in an accounts receivable or other financial asset
securitization transaction as determined in good faith by the Company,
including Guarantees by the Company or any Restricted Subsidiary of any of the
foregoing obligations of the Company or a Restricted Subsidiary.


 


“Stated Maturity,”
when used with respect to (i) any Note or any installment of interest
thereon, means the date specified in such Note as the fixed date on which the
principal amount of such Note or such installment of interest is due and
payable and (ii) any other Debt or any installment of interest thereon,
means the date specified in the instrument governing such Debt as the fixed
date on which the principal of such Debt or such installment of interest is due
and payable.


 


“Subsidiary” of
a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.


 


“Subsidiary Guarantor”
means each Subsidiary of the Company that is a Guarantor.


 


“Successor Entity”
means a corporation or other entity that succeeds to and continues the business
of Oshkosh Corporation.


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including, without
limitation, any fuel price caps and fuel price collar or floor agreements and
similar agreements or arrangements designed to protect against or manage
fluctuations in fuel prices and any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to
any master agreement, but excluding fixed price commodity purchase contracts
entered into with commodity suppliers in the ordinary course of business and
not for speculative purposes, and (b) any and all transactions 


 


33

















 


of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


“Synthetic Lease
Obligations” means any monetary obligation of a Person under (i) a
so-called synthetic, off-balance sheet or tax retention lease, or (ii) an
agreement for the use or possession of property (including Sale and Leaseback
Transactions), in each case, creating obligations that do not appear on the
balance sheet of such Person but which, upon the application of any bankruptcy
or insolvency laws to such Person, would be characterized as the indebtedness
of such Person (without regard to accounting treatment).


 


“TIA” means the
Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended, as in
effect on the date hereof, except as provided in Section 9.3.


 


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


 


“Trustee” has
the meaning set forth in the preamble to this Indenture until a successor
replaces it in accordance with the applicable provisions of this Indenture and,
thereafter, means the successor.


 


“Unrestricted Global Note”
means a Global Note that is an Unrestricted Note.


 


“Unrestricted Notes”
means one or more Notes that do not and are not required to bear the Restricted
Notes Legend including, without limitation, the Exchange Notes and any Notes
registered under the Securities Act pursuant to and in accordance with the
Registration Rights Agreement.


 


“Unrestricted Subsidiary”
means:


 


(1)           any
Subsidiary designated as such by an Officers’ Certificate as set forth below
where neither the Company nor any of its Restricted Subsidiaries (i) provides
credit support for, or Guarantee of, any Debt of such Subsidiary or any
Subsidiary of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt, but excluding in the case of a Receivable
Subsidiary any Standard Securitization Undertakings and further excluding other
Debt under which the lender has recourse to the Company or any Restricted
Subsidiary or to any of their assets that does not exceed $15.0 million in the
aggregate) or (ii) is directly or indirectly liable for any Debt of such
Subsidiary or any Subsidiary of such Subsidiary (except in the case of a
Receivable Subsidiary any Standard Securitization Undertakings); and


 


(2)           any
Subsidiary of an Unrestricted Subsidiary.


 


“Voting Interests”
means, with respect to any Person, securities of any class or classes of
Capital Interests in such Person entitling the holders thereof generally to
vote on the election of members of the Board of Directors or comparable body of
such Person.


 


34

















 


SECTION 1.2 
Other Definitions.


 


	
  Term

  	
   

  	
  Defined
  in Section

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.

  	
  11

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  2.

  	
  6

  	
   

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.

  	
  14

  	
   

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.

  	
  14

  	
   

  
	
  “covenant
  defeasance”

  	
   

  	
  8.

  	
  3

  	
   

  
	
  “Covenant
  Suspension Event”

  	
   

  	
  4.

  	
  20

  	
   

  
	
  “defeasance”

  	
   

  	
  8.

  	
  2

  	
   

  
	
  “Discharge”

  	
   

  	
  8.

  	
  2

  	
   

  
	
  “Event
  of Default”

  	
   

  	
  6.

  	
  1

  	
   

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.

  	
  10

  	
   

  
	
  “Expiration
  Date”

  	
   

  	
  3.

  	
  9

  	
   

  
	
  “Note
  Register”

  	
   

  	
  2.

  	
  3

  	
   

  
	
  “Offer
  Amount”

  	
   

  	
  3.

  	
  9

  	
   

  
	
  “Purchase
  Date”

  	
   

  	
  3.

  	
  9

  	
   

  
	
  “QIB”

  	
   

  	
  2.

  	
  1

  	
   

  
	
  “QIB
  Global Note”

  	
   

  	
  2.

  	
  1

  	
   

  
	
  “redemption
  date”

  	
   

  	
  3.

  	
  1

  	
   

  
	
  “Registrar”

  	
   

  	
  2.

  	
  3

  	
   

  
	
  “Regulation
  S”

  	
   

  	
  2.

  	
  1

  	
   

  
	
  “Regulation
  S Global Note”

  	
   

  	
  2.

  	
  1

  	
   

  
	
  “Reinstatement
  Date”

  	
   

  	
  4.

  	
  20

  	
   

  
	
  “Rule 144A”

  	
   

  	
  2.

  	
  1

  	
   

  
	
  “Suspended
  Covenants”

  	
   

  	
  4.

  	
  20

  	
   

  
	
  “Suspension
  Period”

  	
   

  	
  4.

  	
  20

  	
   

  
	
  “Surviving
  Entity”

  	
   

  	
  5.

  	
  1

  	
   

  



 


SECTION 1.3 
Incorporation by Reference of Trust Indenture Act.


 


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


 


The following TIA term used in this Indenture
has the following meaning:


 


“obligor” on the Notes means the Issuer,
the Guarantors and any successor obligor upon the Notes.


 


All other terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined
by the Commission rule under the TIA have the meanings so assigned to them
therein.


 


SECTION 1.4 
Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


35

















 


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


 


(3)           “or”
is not exclusive;


 


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


 


(5)           unless
otherwise specified, any reference to a Section or an Article refers
to such Section or Article of this Indenture;


 


(6)           provisions
apply to successive events and transactions;


 


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


 


(8)           for
the avoidance of doubt, any references to “interest” shall include any
Additional Interest that may be payable.


 


ARTICLE II



THE NOTES


 


SECTION 2.1 
Form and Dating.


 


(a)           The Notes and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibit A
attached hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture.  The Notes may have notations, legends or
endorsements required by law, stock exchange agreements to which the Company or
any Subsidiary Guarantor is subject, or usage. 
Each Note shall be dated the date of its authentication.  The Notes initially shall be issued only in
denominations of $2,000 and any integral multiple of $1,000 in excess
thereof.  The Trustee shall authenticate
the Notes, upon receipt of a Company Order for the authentication and delivery
of such Notes, which order shall set forth the number of separate notes, the
principal amount of each such Note to be authenticated, the date on which the
original issue of Notes is to be authenticated, the registered holders of each
of the said Notes and delivery instructions.


 


(b)           The terms and provisions contained in
the Notes shall constitute, and are hereby expressly made, a part of this
Indenture and the Issuer, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions
and to be bound thereby.  However, to the
extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.


 


The Notes shall be issued initially in the
form of one or more Global Notes substantially in the form attached as Exhibit A
hereto and shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee as Note Custodian, and registered in the
name of the 


 


36

















 


Depositary or a nominee of
the Depositary, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided.


 


Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and transfers of interests.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.


 


Except as set forth in Section 2.6
hereof, the Global Notes may be transferred, in whole and not in part, only to
another nominee of the Depositary or to a successor of the Depositary or its
nominee.


 


(c)           The Initial Notes are being issued by
the Issuer only (i) to “qualified institutional buyers” (as defined in Rule 144A
under the Securities Act (“Rule 144A”))
(“QIBs”) and (ii) in reliance on
Regulation S under the Securities Act (“Regulation S”).  After such initial offers, Initial Notes that
are Restricted Notes may be transferred to QIBs, in reliance on Rule 144A,
outside the United States pursuant to Regulation S or to the Company, in
accordance with certain transfer restrictions. 
Initial Notes that are offered in reliance on Rule 144A shall be
issued in the form of one or more permanent Global Notes substantially in the
form set forth in Exhibit A (the “QIB Global
Note”) deposited with the Trustee, as Note Custodian, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.  Initial Notes that are offered in offshore
transactions in reliance on Regulation S shall be issued in the form of one or
more Global Notes substantially in the form set forth in Exhibit A
(the “Regulation S Global Note”) deposited
with the Trustee, as Note Custodian, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.  The QIB Global Note and the Regulation S
Global Note shall each be issued with separate CUSIP numbers.  The aggregate principal amount of each Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as Note Custodian. 
Transfers of Notes between QIBs and to or by purchasers pursuant to
Regulation S shall be represented by appropriate increases and decreases to the
respective amounts of the appropriate Global Notes, as more fully provided in Section 2.16.


 


(d)           Section 2.1(c) shall apply
only to Global Notes deposited with or on behalf of the Depositary.


 


The Issuer shall execute and the Trustee
shall, in accordance with Section 2.1(c) and this Section 2.1(d),
authenticate and deliver the Global Notes that (i) shall be registered in
the name of the Depositary or the nominee of the Depositary and (ii) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instructions or held by the Trustee as Note Custodian.


 


Participants shall have no rights either
under this Indenture with respect to any Global Note held on their behalf by
the Depositary or by the Note Custodian or under such Global Note, 


 


37

















 


and the Depositary may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee
as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any Agent or other agent of the Issuer
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants, the operation of customary practices of such Depositary
governing the exercise of the rights of an owner of a beneficial interest in
any Global Note.


 


The Trustee shall have no responsibility or
obligation to any Holder, any member of (or a participant in) DTC or any other
Person with respect to the accuracy of the records of DTC (or its nominee) or
of any participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery of any notice (including any notice
of redemption) or the payment of any amount or delivery of any Notes (or other
security or property) under or with respect to the Notes or with respect to any
action taken or not taken by the Depositary. 
The Trustee may conclusively rely (and shall be fully protected in
relying) upon information furnished by DTC with respect to its members,
participants and any Beneficial Owners in the Notes.


 


(e)           Notes issued in certificated form,
including Global Notes, shall be substantially in the form of Exhibit A
attached hereto.


 


(f)            Prior to the delivery of a Note of
any series in any such form to the Trustee for the Notes of such series for
authentication, the Company shall deliver to the Trustee the following:


 


(i)            The
Board Resolution approving Notes issued in certificated form pursuant to Section 2.1(e);


 


(ii)           An
Officers’ Certificate dated the date such Certificate is delivered to the
Trustee stating that all conditions precedent provided for in this Indenture
relating to the authentication and delivery of Notes in such form have been
complied with; and


 


(iii)          An
Opinion of Counsel stating that Notes in such form, when (i) completed by
appropriate insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, (ii) authenticated
and delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors, and (iii) sold in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company, subject to applicable bankruptcy, reorganization, insolvency and other
similar laws generally affecting creditors’ rights, to general equitable
principles and to such other qualifications as such counsel shall conclude do
not materially affect the rights of Holders of such Notes.


 


(g)           The definitive Notes shall be
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner, all as determined by the
officers executing such Notes, as evidenced by their execution thereof.


 


38
















 


SECTION 2.2 
Authentication and Execution.


 


(a)                  Form of
Authentication.


 


A
Note shall not be valid until authenticated by the manual signature of an
authorized signatory of the Trustee.  The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture. The following is the form of the Certificate of
Authentication of the Trustee to be endorsed on the face of all Notes
substantially as follows:


 


This is one of the Notes of
the series designated herein issued under the within-mentioned Indenture.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


The Trustee may appoint an authenticating
agent reasonably acceptable to the Issuer to authenticate Notes.  Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as an Agent to deal with Holders or the Issuer or an Affiliate of
the Issuer.


 


(b)      Execution.


 


The
Notes shall be executed manually or by facsimile in the name and on behalf of
the Company by its Chairman of the Board of Directors, its President, one of
its Vice Presidents or its Treasurer and by its Secretary or one of its
Assistant Secretaries. Only such Notes as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, manually
executed by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or become obligatory for any purpose. Such certificate by the Trustee
upon any Note executed by the Company shall be conclusive evidence that the
Note so authenticated has been duly authenticated and delivered hereunder and
that the Holder is entitled to the benefits of this Indenture.


 


In case any officer of the Company who shall
have executed any of the Notes shall cease to be such officer before the Notes
so executed shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Notes nevertheless shall be valid and binding
and may be authenticated and delivered or disposed of as though the Person who
executed such Notes had not ceased to be such officer of the Company; and any
Notes may be executed on behalf of the Company by such Persons as, at the
actual date of the execution of such Note, shall 


 


39

















 


be the proper officers of
the Company, although at the date of such Note or of the execution of this
Indenture any such Person was not such an officer.


 


At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Notes of any
series, properly created pursuant to this Indenture and executed by the
Company, to the Trustee for authentication; and the Trustee shall authenticate
and deliver such Notes upon receipt of a Company Order. In the event that any
other Person performs the Trustee’s duties as an Agent pursuant to a duly
executed agreement, the Company shall notify the Trustee in writing of the
issuance of any Notes hereunder, such notice to be delivered in accordance with
the provisions of Section 11.2 on the date such Notes are delivered by the
Company for authentication to such other Person.


 


Prior to any such authentication and
delivery, the Trustee shall receive, and shall be fully protected in
conclusively relying upon, in addition to the Opinion of Counsel to be
furnished to the Trustee pursuant to Sections 2.1(f), 11.4 and 11.5 and the
Officers’ Certificate relating to the issuance of any series of Notes, an
Opinion of Counsel stating that:


 


(i)            all instruments
furnished to the Trustee conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to authenticate and
deliver such Notes;


 


(ii)           all laws and
requirements with respect to the form and execution by the Company of any
indenture supplemental to this Indenture, if any, have been complied with, the
execution and delivery of such supplemental indenture, if any, does not violate
the terms of this Indenture, the supplemental indenture has been duly qualified
under the TIA, the Company has the corporate or company power to execute and
deliver any such supplemental indenture and has taken all necessary corporate
action for those purposes and any such supplemental indenture has been executed
and delivered and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms (subject to applicable
bankruptcy, reorganization, fraudulent transfer, insolvency, moratorium and
other laws affecting creditors’ rights generally from time to time in effect
and general equitable principles and the qualification that certain provisions
may be unenforceable in whole or in part but such unenforceability will not
adversely effect the principal legal rights and benefits afforded thereby);


 


(iii)          the form and terms
of such Notes have been established in conformity with the provisions of this Indenture;
and


 


(iv)          all laws and
requirements with respect to the execution and delivery by the Company of such
Notes have been complied with, the authentication and delivery of the Notes by
the Trustee does not violate the terms of this Indenture, the Company has the
corporate or company power to issue such Notes and such Notes, assuming due
authentication and delivery by the Trustee, constitute legal, valid and binding
obligations of the Company in accordance with their terms (subject to
applicable bankruptcy, reorganization, fraudulent transfer, insolvency,
moratorium and other laws affecting creditors’ rights generally from 


 


40

















 


time to time in effect and general equitable
principles and the qualification that certain provisions may be unenforceable
in whole or in part but such unenforceability will not adversely effect the
principal legal rights and benefits afforded thereby) and are entitled to the
benefits of this Indenture, equally and ratably with all other Notes, if any,
of such series.


 


The Trustee shall not be required to
authenticate such Notes if the issue thereof will adversely affect the Trustee’s
own rights, duties or immunities under the Notes and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee or such
action would expose the Trustee to personal liability to existing Holders.


 


Unless otherwise provided in the form of Note
for any series, all Notes shall be dated the date of their authentication.


 


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


 


SECTION 2.3 
Registrar; Paying Agent.


 


The Issuer shall maintain (i) an office
or agency where Notes may be presented for registration of transfer or for
exchange (“Registrar”) and (ii) an office or
agency where Notes may be presented for payment to a Paying Agent.  The Registrar shall keep a register of the
Notes (the “Note Register”) and of their transfer
and exchange.  The Issuer may appoint one
or more co-registrars and one or more additional paying agents; provided, however, that
at all times there shall be only one Note Register.  The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Issuer may change any Paying
Agent or Registrar without notice to any Holder.  The Issuer shall notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture.  The Issuer or any of its
Restricted Subsidiaries may act as Paying Agent or Registrar.


 


The Issuer shall notify the Trustee and the
Holders in writing of the name and address of any Agent not a party to this
Indenture.  The Issuer or any Guarantor
may act as Paying Agent or Registrar. 
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of Section 317(b) of
the TIA.  The agreement shall implement
the provisions of this Indenture that relate to such Agent.  The Issuer shall notify the Trustee in
writing of the name and address of any such Agent.


 


The Issuer initially appoints the Trustee to
act as the Registrar and Paying Agent and initially appoints the Corporate
Trust Office of the Trustee as the office or agency of the Company for such
purposes and as the office or agency of the Company where notices and demands
to or upon the Issuer in respect of the Notes and this Indenture may be served
and the Trustee, as the agent of the Issuer, to receive such notices and
demands.


 


The Issuer initially appoints DTC to act as
the Depositary with respect to the Global Notes.


 


41

















 


SECTION 2.4 
Paying Agent to Hold Money in Trust.


 


The Issuer shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent shall hold in
trust for the benefit of the Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium, if any, or interest on the
Notes, and shall notify the Trustee in writing of any Default by the Issuer in
making any such payment.  While any such
Default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee.  The Issuer at any
time may require a Paying Agent to pay all money held by it to the
Trustee.  Upon payment over to the
Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have
no further liability for the money.  If
the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.  Upon the occurrence of
events specified in Section 6.1(8) hereof, the Trustee shall serve as
Paying Agent for the Notes.


 


SECTION 2.5 
Holder Lists.


 


(a)           The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, not more than 15 days
prior to each interest payment date with respect to the Notes of any series,
and at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request, a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes of such series as of a date not more than 15 days prior to the time such
information is furnished; provided,  however, that no such list with respect to any particular
series of Notes need be furnished at any such time if the Trustee is in
possession thereof by reason of its acting as the Registrar for such series
designated under Section 2.3 or otherwise.


 


(b)           The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and addresses of the Holders of Notes contained in the most recent list
furnished to it as provided in this Section or received by the Trustee in
the capacity of the Registrar (if so acting) under Section 2.3. The
Trustee may destroy any list furnished to it as provided in this Section upon
receipt of a new list so furnished.


 


(c)           The rights of Holders to communicate
with other Holders with respect to their rights under this Indenture or under
the Notes of any series or of all Notes, and the corresponding rights and
duties of the Trustee, shall be as provided by the TIA.


 


(d)           Every Holder of Notes, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the TIA.


 


SECTION 2.6 
Book-Entry Provisions for Global Securities.


 


(a)           Each Global Note constituting a
Restricted Note shall (i) be registered in the name of the Depositary for
such Global Notes or the nominee of such Depositary, (ii) be delivered to
the Trustee as Note Custodian and (iii) bear legends as required by Section 2.6(e).


 


42

















 


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


 


(b)           Transfers of a Global Note shall be
limited to transfers of such Global Note in whole, but not in part, to the
Depositary, its successors or their respective nominees.  Interests of Beneficial Owners (or the
requesting Beneficial Owners in the case of clause (ii) immediately below)
in a Global Note may be transferred in accordance with Section 2.16 and
the rules and procedures of the Depositary.  In addition, Certificated Notes shall be
transferred to all Beneficial Owners in exchange for their beneficial interests
if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for the Global Notes or the Depositary ceases to be a
“clearing agency” registered under the Exchange Act and a successor depositary
is not appointed by the Company within ninety (90) days of such notice or (ii) an
Event of Default of which a Responsible Officer of the Trustee has actual
notice has occurred and is continuing and the Registrar has received a request
from the Depositary or a Beneficial Owner in a Global Note to issue such
Certificated Notes.


 


(c)           In connection with the transfer of
the entire Global Note to beneficial owners pursuant to clause (b) of this
Section, such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each Beneficial Owner identified by the Depositary in exchange
for its beneficial interest in such Global Note an equal aggregate principal
amount of Certificated Notes of authorized denominations.


 


(d)           The registered holder of a Global
Note may grant proxies and otherwise authorize any person, including Agent
Members and persons that may hold interest through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Notes.


 


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


 


(i)            Private
Placement Legend.


 


(1)           Unless
and until (x) a Note is exchanged for an Exchange Note or sold in
connection with an effective registration statement pursuant to the
Registration Rights Agreement or (y) the Company determines and there is
delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee and a letter of representation of the Company reasonably satisfactory
to the Trustee to the effect that the following legend and the related
restrictions on transfer are not required in order to maintain compliance with
the provisions of 


 


43

















 


the Securities Act, each
Global Note and each Certificated Note (and all Notes issued in exchange
therefor or substitution therefor) shall bear the legend in substantially the
following form:


 


“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY
WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5
OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.  THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES TO NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (ii) TO THE ISSUER,
OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.  NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY.”


 


(ii)           Global
Note Legend.  Each Global Note,
whether or not an Exchange Note, Restricted Global Note or Unrestricted Global
Note, shall bear a legend in substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY 


 


44

















 


MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.6(e)(v) OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.6(b) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.  UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER 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.”


 


(iii)          Each
Global Note shall bear the Global Note Legend on the face thereof.


 


(iv)          Regulation
S Temporary Global Note Legend.  Each
temporary Note that is a Global Note issued pursuant to Regulation S shall bear
a legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO
THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE
INDENTURE.  THE HOLDER OF THIS NOTE BY
ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT IS A PURCHASER
IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF
THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE 903 OF
REGULATION S, ANY OFFER OR SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S.
PERSON TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF
RULE 902(k) UNDER THE SECURITIES ACT.”


 


45

















 


(v)           At
such time as all beneficial interests in Global Notes have been exchanged for
Certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall
be returned to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof.  At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Certificated Notes, redeemed, repurchased or cancelled, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.


 


(f)            General
Provisions Relating to Transfers and Exchanges.


 


(i)            To
permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate Global Notes and Certificated Notes at the
Registrar’s request.


 


(ii)           No
service charge shall be made to a Holder for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
stamp or transfer tax or similar governmental charge payable in connection
therewith (other than any such stamp or transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.2, 2.10, 3.6,
4.10, 4.14 and 9.5 hereto).


 


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


 


(iv)          The
Trustee shall not be required (A) to issue, to register the transfer of or
to exchange Notes during a period beginning at the opening of fifteen (15) days
before the day of mailing of a notice of redemption of Notes under Section 3.2
hereof and ending at the close of business on the day of such mailing, (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part, or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.


 


(v)           [Reserved].


 


(vi)          Prior
to due presentment for the registration of a transfer of any Note, the Trustee,
any Agent and the Issuer 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 neither the Trustee, any Agent nor the Issuer shall be affected by notice
to the contrary.


 


(vii)         The
Trustee shall authenticate Global Notes and Certificated Notes in accordance
with the provisions of Section 2.2 hereof. 
Except as provided in Section 2.6(b), neither the Trustee nor the
Registrar shall authenticate or deliver any Certificated Note in exchange for a
Global Note.


 


46

















 


(viii)        Each
Holder agrees to provide satisfactory indemnity to the Issuer and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder’s Note in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.


 


(ix)           The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Agent Members or Beneficial Owners of
interests in any Global 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 Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.


 


(x)            Affiliates
of the Company are prohibited from taking beneficial interest in one or more
Restricted Global Notes.


 


SECTION 2.7 
Substituted Notes.


 


In
case any temporary or Certificated Notes shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
a Company Request delivered to the Trustee, the Trustee shall authenticate and
deliver, a new Note, bearing a number, letter or other distinguishing mark not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case, the applicant for a substituted Note shall furnish to
the Company and to the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft, of such Note
and of the ownership thereof.


 


In the absence of notice to the Trustee or
the Company that such Note has been acquired by a bona fide purchaser, the
Trustee shall authenticate any such substituted Note and deliver the same upon
any Company Request. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Note, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Note) if the applicant for
such payment shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless and, in case
of destruction, loss or theft, evidence satisfactory to the Company and to the
Trustee of the destruction, loss or theft of such Note and of the ownership
thereof.


 


Every substituted Note issued pursuant to the
provisions of this Section 2.7 by virtue of the fact that any Note is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Note shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately 


 


47

















 


with any and all other Notes
duly issued hereunder. All Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes and shall
preclude (to the extent permitted by law) any and all other rights or remedies
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.


 


SECTION 2.8 
Outstanding Notes.


 


The Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those paid pursuant to Section 2.7
hereof, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this Section 2.8
as not outstanding.  Except as set forth
in Section 2.9 hereof, a Note does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer holds the Note.


 


If a Note is replaced pursuant to Section 2.7
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.


 


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


 


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


 


SECTION 2.9 
Treasury Notes.


 


In determining whether the Holders of the
required aggregate principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Issuer or by any Affiliate of the Issuer
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.  Notwithstanding the foregoing, Notes that are
to be acquired by the Issuer or an Affiliate of the Issuer pursuant to an
exchange offer, tender offer or other agreement shall not be deemed to be owned
by such entity until legal title to such Notes passes to such entity; provided, however, the Trustee shall not be charged with
such knowledge until a Responsible Officer of the Trustee is so informed in
writing.


 


SECTION 2.10 
Temporary Notes.


 


Pending
the preparation of Certificated Notes of any series, the Company may execute,
and upon receipt of the documents required by Sections 2.1 and 2.2(b), together
with a Company Order, the Trustee shall authenticate and deliver, such
temporary Notes which may be printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denominations, substantially of the
tenor of such Certificated Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the


 


48

















 


officers executing such
temporary Notes may determine, as evidenced by their execution of such
temporary Notes.


 


If temporary Notes of any series are issued,
the Company will cause Certificated Notes of such series to be prepared without
unreasonable delay. After the preparation of Certificated Notes of any series,
the temporary Notes of such series shall be exchangeable for Certificated Notes
of such series, upon surrender of the temporary Notes of such series at any
office or agency maintained by the Company for such purposes as provided in Section 4.2,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
Certificated Notes of such series having the same interest rate and Stated
Maturity and bearing interest from the same date of any authorized
denominations. Until so exchanged the temporary Notes of such series shall in all
respects be entitled to the same benefits under this Indenture as Certificated
Notes of such series.


 


Holders of temporary Notes shall be entitled
to all of the benefits of this Indenture.


 


SECTION 2.11 
Cancellation.


 


The Issuer at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder or which the Issuer may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly cancelled by the Trustee.  All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. 
The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation.  Subject to Section 2.7 hereof, the
Issuer may not issue new Notes to replace Notes that they have redeemed or paid
or that have been delivered to the Trustee for cancellation.  All cancelled Notes held by the Trustee shall
be cancelled and disposed of in accordance with its customary practice, and
certification of their cancellation shall be delivered to the Issuer promptly
upon receipt by the Trustee of a Company Request.


 


SECTION 2.12 
Defaulted Interest.


 


If the Issuer defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, which date shall
be at the earliest practicable date but in all events at least five (5) Business
Days prior to the payment date, in each case at the rate provided in the Notes
and in Section 4.1 hereof.  The
Issuer shall fix or cause to be fixed each such special record date and payment
date and shall promptly thereafter notify the Trustee of any such date.  At least fifteen (15) days before the special
record date, the Issuer (or the Trustee, in the name and at the expense of the
Issuer) shall deliver or cause to be delivered to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.


 


SECTION 2.13 
Record Date.


 


The record date shall be set forth in the
Notes.


 


49
















 


SECTION 2.14 
Computation of Interest.


 


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


 


SECTION 2.15 
CUSIP Number.


 


The Issuer in issuing the Notes may use a “CUSIP”
and/or ISIN or other similar number, and if it does so, the Company may use the
CUSIP and/or ISIN or other similar number in notices of redemption or exchange
as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP and/or ISIN or other similar number printed in the
notice or on the Notes and that reliance may be placed only on the other
identification numbers printed on the Notes. 
The Issuer shall promptly notify the Trustee in writing of any change in
the CUSIP and/or ISIN or other similar number.


 


SECTION 2.16 
Special Transfer Provisions.


 


Unless and until (i) a Restricted Note
is exchanged for an Exchange Note or sold in connection with an effective shelf
registration statement pursuant to the Registration Rights Agreement or (ii) the
Restricted Notes Legend is no longer required pursuant to Section 2.6(e),
the following provisions shall apply:


 


(a)           Transfers
to QIBs.  The following provisions
shall apply with respect to the registration of any proposed transfer of a
Restricted Note (other than pursuant to Regulation S):


 


(i)            The
Registrar shall register the transfer of a Restricted Note by a Holder to a QIB
if such transfer is being made by a proposed transferor who has provided the
Registrar with (a) an appropriately completed certificate of transfer in
the form attached to the Note and (b) a letter substantially in the form
set forth in Exhibit C hereto.


 


(ii)           If
the proposed transferee is an Agent Member and the Restricted Note to be
transferred consists of an interest in the Regulation S Global Note, upon
receipt by the Registrar of (x) the items required by paragraph (i) above
and (y) instructions given in accordance with the Depositary’s and the
Registrar’s procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the QIB Global Note
in an amount equal to the principal amount of the beneficial interest in the
Regulation S Global Note to be so transferred, and the Registrar shall reflect
on its books and records the date and an appropriate decrease in the principal
amount of such Regulation S Global Note.


 


(b)           Transfers
Pursuant to Regulation S.  The
following provisions shall apply with respect to registration of any proposed
transfer of a Restricted Note pursuant to Regulation S:


 


50

















 


(i)            The
Registrar shall register any proposed transfer of a Restricted Note pursuant to
Regulation S by a Holder upon receipt of (a) an appropriately completed
certificate of transfer in the form attached to the Note and (b) a letter
substantially in the form set forth in Exhibit D hereto from the
proposed transferor.


 


(ii)           If
the proposed transferee is an Agent Member holding a beneficial interest in a
QIB Global Note and the Restricted Note to be transferred consists of an
interest in a QIB Global Note, upon receipt by the Registrar of (x) the
letter, if any, required by paragraph (i) above and (y) instructions
in accordance with the Depositary’s and the Registrar’s procedures therefor,
the Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Regulation S Global Note in an amount equal to
the principal amount of the beneficial interest in the QIB Global Note to be
transferred, and the Registrar shall reflect on its books and records the date
and an appropriate decrease in the principal amount of the QIB Global Note.


 


(c)           Exchange
Offer.  Upon the occurrence of the
Exchange Offer in accordance with the Registration Rights Agreement, the Issuer
shall issue and, upon receipt of an authentication order in accordance with Section 2.2,
the Trustee shall authenticate, one or more Global Notes not bearing the
Restricted Notes Legend in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Global Notes that are Restricted
Notes tendered for acceptance in accordance with the Exchange Offer and
accepted for exchange in the Exchange Offer. 
Concurrently with the issuance of such Global Notes, the Registrar shall
cause the aggregate principal amount of the applicable Restricted Notes to be
reduced accordingly, and the Registrar shall deliver to the Persons designated
by the Holders of Restricted Notes so accepted Global Notes not bearing the
Restricted Notes Legend in the appropriate principal amount.


 


(d)           Restricted
Notes Legend.  Upon the transfer,
exchange or replacement of Unrestricted Notes, the Registrar shall deliver
Unrestricted Notes that do not bear the Restricted Notes Legend.  Upon the transfer, exchange or replacement of
Restricted Notes, the Registrar shall deliver only Restricted Notes that bear
the Restricted Notes Legend unless the Restricted Notes Legend is no longer
required by Section 2.6(e), or the Company determines and there is
delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Trustee and a letter of representation of the Issuer reasonably satisfactory to
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required or appropriate in order to ensure that subsequent
transfers of the Notes are effected in compliance with the Securities Act.  Upon receipt of such Opinion of Counsel and
letter of representation as provided above, the Trustee shall direct the
Registrar to exchange the Restricted Notes for Unrestricted Notes with such
exchange to occur in accordance with Section 2.16(f) (in the case of
Global Notes).


 


(e)           General.  By its acceptance of any Note bearing the
Restricted Notes Legend, each Holder of such a Note acknowledges receipt of a
Restricted Note with restrictions on transfer of such Note set forth in this
Indenture and in the Restricted Notes Legend and agrees that it shall transfer
such Note only as provided in this Indenture until 


 


51

















 


such time as the Restricted
Note Legend is no longer required pursuant to Section 2.6(e) and such
Holder transfers such a Restricted Note to an Unrestricted Note.  The Registrar shall not register a transfer
of any Note unless such transfer complies with the restrictions on transfer of
such Note set forth in this Indenture. 
In connection with any transfer of Notes, each Holder agrees by its
acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act until such time as the Restricted Note Legend is no
longer required pursuant to Section 2.6(e) and such Holder transfers
such a Restricted Note to an Unrestricted Note; provided
that the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.


 


(f)            Mandatory
Exchange from Restricted Global Note to Unrestricted Global Note.  Upon compliance with the following
procedures, all of the beneficial interests in a Restricted Global Note shall
be exchanged for beneficial interests in the Unrestricted Global Note.  In order to effect such exchange, the Company
shall provide written notice to the Trustee no later than 45 days prior to the
date of such mandatory exchange instructing the Trustee to (i) direct the
Depositary to transfer all of the outstanding beneficial interests in a
particular Restricted Global Note to the Unrestricted Global Note and provide
the Depositary with all such information as is necessary for the Depositary to
appropriately credit and debit the relevant Holder accounts and (ii) provide
prior written notice to all Holders no later than 45 days prior to the date of
such mandatory exchange, which notice must include the date such exchange is to
occur, the CUSIP number of the relevant Restricted Global Note and the CUSIP
number of the Unrestricted Global Note into which such Holders’ beneficial
interests will be exchanged and (iii) on or prior to the date of the
mandatory exchange, deliver to the Trustee for authentication upon Company
Order, one or more Unrestricted Global Notes, duly executed by the Company in
an aggregate principal amount equal to the aggregate principal amount of
Restricted Global Notes to be exchanged. 
As a condition to any such exchange pursuant to this Section 2.16(f),
the Trustee shall be entitled to receive from the Company, and rely upon
conclusively, without liability, an Officers’ Certificate and an Opinion of
Counsel, in form and in substance reasonably satisfactory to the Trustee, to
the effect that such transfer of beneficial interests to the Unrestricted
Global Note shall be effected in compliance with the Securities Act.  Upon such exchange of beneficial interests pursuant
to this Section 2.16(f), the Registrar shall endorse Schedule A to the
relevant Notes and reflect on its books and records the date of such transfer
and a decrease and increase, respectively, in the principal amount of the
applicable Restricted Global Note(s) and the Unrestricted Global Note,
respectively, equal to the principal amount of beneficial interests
transferred.  Following any such transfer
pursuant to this Section 2.16(f), the relevant Restricted Global Note
shall be cancelled.  Notwithstanding
anything to the contrary in this Section 2.16(f), during the 45 day period
between the mandatory exchange notice date and the mandatory exchange date, no
transfers or exchanges other than pursuant to this Section 2.16(f) shall
be permitted without the prior written consent of the Company.


 


52

















 


The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to this Section 2.16(f).  The Company, at its sole cost and expense,
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.


 


SECTION 2.17 
Issuance of Additional Notes.


 


The Company shall be entitled to issue
Additional Notes under this Indenture that shall have identical terms as the
Initial Notes, other than with respect to the date of issuance, issue price,
amount of interest payable on the first interest payment date applicable
thereto and any customary escrow provisions (and, if such Additional Notes
shall be issued in the form of Restricted Notes, other than with respect to
transfer restrictions, any Registration Rights Agreement and additional
interest with respect thereto); provided that
such issuance is not prohibited by the terms of this Indenture, including Section 4.9.  The Initial Notes and any Additional Notes
and all Exchange Notes shall be, without limitation, treated as a single class
for all purposes under this Indenture.


 


With respect to any Additional Notes, the
Company shall set forth in a resolution of its Board of Directors and in an
Officers’ Certificate, 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 Indenture;


 


(2)           the
issue price, the issue date, the CUSIP number of such Additional Notes, the
first interest payment date and the amount of interest payable on such first
interest payment date applicable thereto and the date from which interest shall
accrue;


 


(3)           whether
such Additional Notes shall be Restricted Notes;


 


(4)           the
Board Resolution approving such Additional Notes issued in certificated form pursuant
to Section 2.1(e);


 


(5)           an
Officers’ Certificate dated the date such Certificate is delivered to the
Trustee stating that all conditions precedent provided for in this Indenture
relating to the authentication and delivery of such Additional Notes in such
form have been complied with; and


 


(6)           an
Opinion of Counsel stating that such Additional Notes in such form, when (i) completed
by appropriate insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture, (ii) authenticated
and delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors, and (iii) sold in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company, subject to applicable bankruptcy, reorganization, insolvency and other
similar laws generally affecting creditors’ rights, to general equitable
principles and to such other qualifications as such counsel shall conclude do
not materially affect the rights of Holders of such Additional Notes.


 


53

















 


ARTICLE III



REDEMPTION AND PREPAYMENT


 


SECTION 3.1 
Notices to Trustee.


 


If the Issuer elects to redeem Notes pursuant
to the optional redemption provisions of Section 3.7 hereof, it shall
furnish to the Trustee, at least forty-five (45) days (or such shorter period
as is acceptable to the Trustee) before a date fixed for redemption (the “redemption date”), an Officers’ Certificate setting forth (i) the
section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
Redemption Price.


 


If the Issuer is required to make an Offer to
Purchase pursuant to Section 4.10 or 4.14 hereof, it shall furnish to the
Trustee, at least thirty (30) days (or such shorter period as is acceptable to
the Trustee) before the scheduled purchase date, an Officers’ Certificate
setting forth (i) the section of this Indenture pursuant to which the
offer to purchase shall occur, (ii) the terms of the offer, (iii) the
principal amount of Notes to be purchased, (iv) the purchase price and (v) the
purchase date and further setting forth a statement to the effect that (a) the
Issuer or one of its Restricted Subsidiaries has effected an Asset Sale and
there are Excess Proceeds aggregating more than $100.0 million or (b) a
Change of Control has occurred or a definitive agreement is in place for a
Change of Control, as applicable.


 


SECTION 3.2 
Selection of Notes to Be Redeemed.


 


The Trustee shall select the Notes to be
redeemed among the Holders in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and appropriate (and in
a manner that complies with applicable requirements of the Depositary); provided that no Notes of $2,000 or less shall be redeemed
in part.  Notices of redemption shall be
sent electronically (to the extent permitted by applicable procedures or
regulations) or mailed by first class mail at least 30 but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at its
registered address.  If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed.  In the case of Certificated Notes, a new Note
in principal amount equal to the unredeemed portion of the original Note will
be issued in the name of the Holder thereof upon cancellation of the original
Note.  Notes called for redemption become
due on the date fixed for redemption.  On
and after the redemption date, interest ceases to accrue on Notes or portions
of them called for redemption.  The
Trustee shall make the selection from the Notes outstanding and not previously
called for redemption and shall promptly notify the Issuer in writing of the
Notes selected for redemption.  The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of the Notes that have denominations larger
than $2,000.


 


54

















 


SECTION 3.3 
Notice of Redemption.


 


Subject to the provisions of Section 3.9,
at least 30 days but not more than 60 days before a redemption date, the Issuer
shall send or cause to be sent by electronic transmission or by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed.


 


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


 


(1)           the
redemption date;


 


(2)           the
Redemption Price;


 


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


 


(4)           the
name, telephone number and address of the Paying Agent;


 


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


 


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


 


(7)           the
paragraph of the Notes and/or Section of this Indenture pursuant to which
the Notes called for redemption are being redeemed; and


 


(8)           that
no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.


 


At the Issuer’s request, the Trustee shall
give the notice of redemption in the Issuer’s name and at the Issuer’s expense;
provided, however,
that the Issuer shall have delivered to the Trustee at least 45 days prior to
the redemption date (or such shorter period as is acceptable to the Trustee),
an Officers’ Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notices as provided in the
preceding paragraph.  The notice sent in
the manner herein provided shall be conclusively presumed to have been duly given
whether or not a Holder receives such notice. 
In any case, failure to give such notice by electronic transmission or
by mail or any defect in the notice to the Holder of any Note shall not affect
the validity of the proceeding for the redemption of any other Note.


 


SECTION 3.4 
Effect of Notice of Redemption.


 


Once notice of redemption is sent in
accordance with Section 3.3 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the Redemption Price 


 


55

















 


plus accrued and unpaid
interest, if any, to such date.  A notice
of redemption may not be conditional.


 


SECTION 3.5 
Deposit of Redemption of Purchase Price.


 


On or before 10:00 am  (New York City time) on each redemption date
or the date on which Notes must be accepted for purchase pursuant to Section 4.10
or 4.14, the Issuer shall deposit with the Trustee or with the Paying Agent
(other than the Issuer or an Affiliate of the Issuer) money sufficient to pay
the Redemption Price of and accrued and unpaid interest, if any, on all Notes
to be redeemed or purchased on that date. 
The Trustee or the Paying Agent shall promptly return to the Issuer any
money deposited with the Trustee or the Paying Agent by the Issuer in excess of
the amounts necessary to pay the Redemption Price of (including any applicable
premium), and accrued interest, if any, on, all Notes to be redeemed or
purchased.


 


If Notes called for redemption or tendered in
an Asset Sale Offer or Change of Control Offer are paid or if the Issuer has
deposited with the Trustee or Paying Agent money sufficient to pay the
redemption or purchase price of, and unpaid and accrued interest, if any, on,
all Notes to be redeemed or purchased, on and after the redemption or purchase
date, interest, if any, shall cease to accrue on the Notes or the portions of
Notes called for redemption or tendered and not withdrawn in an Asset Sale
Offer or Change of Control Offer (regardless of whether certificates for such
securities are actually surrendered).  If
a Note is redeemed or purchased on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid
interest, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such record date.  If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Issuer
to comply with the preceding paragraph, interest shall be paid on the unpaid principal
from the redemption or purchase date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case,
at the rate provided in the Notes and in Section 4.1 hereof.


 


SECTION 3.6 
Notes Redeemed in Part.


 


Upon surrender of a Certificated Note that is
redeemed in part, the Issuer shall issue and, upon the receipt by the Trustee
of a Company Request, the Trustee shall authenticate for the Holder at the
expense of the Issuer a new Note equal in principal amount to the unredeemed
portion of the Certificated Note surrendered.


 


SECTION 3.7 
Optional Redemption.


 


(a)           Optional
Redemption of the 2017 Notes.


 


(i)            The 2017 Notes are
subject to redemption, at the option of the Issuer, in whole or from time to
time in part, at any time on or after March 1, 2014 upon not less than 30
nor more than 60 days’ written notice at the Redemption Prices (expressed as
percentages of the principal amount to be redeemed) set forth below, plus
accrued and unpaid interest, if any, to, but not including, the redemption date
(subject to the right of Holders of record on the relevant regular record date
to receive interest due on an interest payment date that is on or prior to the
redemption date), if redeemed during the 12-month period beginning on March 1
of the years indicated below:


 


56

















 


	
  Year

  	
   

  	
  Redemption
  Price

  	
   

  
	
  2014

  	
   

  	
  104.125

  	
  %

  
	
  2015

  	
   

  	
  102.063

  	
  %

  
	
  2016
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(ii)           Prior to March 1,
2013, the Issuer may from time to time, with the net cash proceeds of one or
more Qualified Equity Offerings, redeem up to 35% of the aggregate principal
amount of the then outstanding 2017 Notes (including Additional 2017 Notes) at
a Redemption Price equal to 108.250% of the principal amount thereof, together
with accrued and unpaid interest thereon, if any, to the date of redemption
(subject to the right of Holders of record on the relevant regular record date
to receive interest due on an interest payment date that is on or prior to the
redemption date); provided that at least 65% of the
principal amount of 2017 Notes then outstanding (including Additional 2017
Notes) remains outstanding immediately after the occurrence of any such
redemption (excluding 2017 Notes held by the Company or its Subsidiaries) and
that any such redemption occurs within 90 days following the closing of any
such Qualified Equity Offering.


 


(b)           Optional
Redemption of the 2020 Notes.


 


(i)            The 2020 Notes are
subject to redemption, at the option of the Issuer, in whole or from time to
time in part, at any time on or after March 1, 2015 upon not less than 30
nor more than 60 days’ written notice at the Redemption Prices (expressed as
percentages of the principal amount to be redeemed) set forth below, plus
accrued and unpaid interest, if any, to, but not including, the redemption date
(subject to the right of Holders of record on the relevant regular record date
to receive interest due on an interest payment date that is on or prior to the
redemption date), if redeemed during the 12-month period beginning on March 1
of the years indicated below:


 


	
  Year

  	
   

  	
  Redemption
  Price

  	
   

  
	
  2015

  	
   

  	
  104.250

  	
  %

  
	
  2016

  	
   

  	
  102.833

  	
  %

  
	
  2017

  	
   

  	
  101.417

  	
  %

  
	
  2018
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(ii)          Prior
to March 1, 2013, the Issuer may from time to time, with the net cash
proceeds of one or more Qualified Equity Offerings, redeem up to 35% of the
aggregate principal amount of the then outstanding 2020 Notes (including
Additional 2020 Notes) at a Redemption Price equal to 108.500% of the principal
amount thereof, together with accrued and unpaid interest thereon, if any, to
the date of redemption (subject to the right of Holders of record on the
relevant regular record date to receive interest due on an interest payment
date that is on or prior to the redemption date); provided
that at least 65% of the principal amount of 2020 Notes then outstanding
(including Additional 2020 Notes) remains outstanding immediately after the
occurrence of any such redemption (excluding 2020 Notes held by the Company or
its Subsidiaries) and that any such redemption occurs within 90 days following
the closing of any such Qualified Equity Offering.


 


57
















 


(c)           The
Issuer may, at any time and from time to time, purchase Notes of a series in
the open market or otherwise, subject to compliance with this Indenture and
compliance with all applicable securities laws.


 


SECTION 3.8 
Mandatory Redemption.


 


The Issuer shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


SECTION 3.9 
Offer to Purchase.


 


In the event that the Issuer shall be
required to commence an Offer to Purchase pursuant to an Asset Sale Offer or a Change
of Control Offer, the Issuer shall follow the procedures specified below.


 


Unless otherwise required by applicable law,
an Offer to Purchase shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase, which shall be,
subject to any contrary requirements of applicable law, not less than 30 days
or more than 60 days after the date of delivering of such Offer, and a
settlement date (the “Purchase Date”)
for purchase of Notes within five Business Days after the Expiration Date.  On the Purchase Date, the Company shall
purchase the aggregate principal amount of Notes required to be purchased
pursuant to Section 4.10 hereof or Section 4.14 hereof (the “Offer Amount”), or if less than the Offer Amount has been
tendered, all Notes tendered in response to the Offer to Purchase.  Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.  If the Purchase Date is on or after the
interest record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, shall be paid to the Person in whose name
a Note is registered at the close of business on such record date, and no
additional interest, if any, shall be payable to the Holders who tender Notes
pursuant to the Offer to Purchase.  The
Company shall notify the Trustee in writing at least 15 days (or such shorter
period as is acceptable to the Trustee in its sole discretion) prior to the
delivering of the Offer of the Company’s obligation to make an Offer to
Purchase, and the Offer shall be sent electronically or mailed by the Company
or, at the Company’s written request, by the Trustee in the name and at the
expense of the Company.  The Offer shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer to Purchase.


 


On or before 10:00 am (New York City time) on
each Purchase Date, the Issuer shall irrevocably deposit with the Trustee or
Paying Agent (other than the Issuer or an Affiliate of the Issuer) in
immediately available funds the aggregate purchase price equal to the Offer
Amount, together with accrued and unpaid interest, if any, thereon, to be held
for payment in accordance with the terms of this Section 3.9.  On the Purchase Date, the Issuer shall, to
the extent lawful, (i) accept for payment, on a pro rata
basis to the extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Offer to Purchase, or if less than the Offer Amount
has been tendered, all Notes tendered, (ii) deliver or cause the Paying
Agent or depositary, as the case may be, to deliver to the Trustee Notes so
accepted and (iii) deliver to the Trustee an Officers’ Certificate stating
that such Notes or portions thereof were accepted for payment by the Issuer in
accordance with the terms of this Section 3.9.  The Issuer, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than three
(3) Business Days 


 


58

















 


after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes tendered by such Holder and accepted by the Issuer for purchase,
plus any accrued and unpaid interest, if any, thereon, and the Issuer shall
promptly issue a new Note, and the Trustee, upon receipt of a Company Order,
shall authenticate and mail or deliver at the expense of the Issuer such new
Note to such Holder, equal in principal amount to any unpurchased portion of
such Holder’s Notes surrendered; provided that
each such new Note will be in a principal amount of $2,000 or any integral
multiple of $1,000 in excess thereof. 
Any Note not so accepted shall be promptly mailed or delivered by the
Issuer to the Holder thereof.  The Issuer
shall publicly announce in a newspaper of general circulation or in a press
release provided to a nationally recognized financial wire service the results
of the Offer to Purchase on the Purchase Date.


 


The Issuer shall comply with the requirements
of any applicable securities laws and any regulations thereunder to the extent
such laws and regulations are applicable in connection with the repurchase of
the Notes as a result of an Asset Sale Offer or Change of Control Offer.  To the extent that the provisions of any
securities laws or regulations conflict with Sections 3.9, 4.10 or 4.14 of this
Indenture, the Company will comply with the applicable securities laws and
regulations and will be deemed to have complied with its obligations under Section 3.9,
4.10 or 4.14, as applicable, by virtue of such compliance.


 


Other than as specifically provided in this Section 3.9,
any purchase pursuant to this Section 3.9 shall be made pursuant to the
provisions of Sections 3.1 through 3.6 hereof.


 


ARTICLE IV




COVENANTS


 


SECTION 4.1 
Payment of Notes.


 


(a)           The Issuer shall pay or cause to be
paid the principal of, premium, if any, and interest on the Notes on the dates
and in the manner provided in the Notes. 
Principal, premium, if any, and interest shall be considered paid for
all purposes hereunder on the date the Paying Agent, if other than the Issuer
or a Subsidiary thereof, holds, as of 10:00 am (New York City time), money
deposited by the Issuer in immediately available funds and designated for and
sufficient to pay all such principal, premium, if any, and interest then due.


 


(b)           The Issuer shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.


 


SECTION 4.2 
Maintenance of Office or Agency.


 


The Issuer shall maintain an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee or
Registrar) where Notes may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. 
The Issuer shall give prompt written notice to the 


 


59

















 


Trustee of the location, and
any change in the location, of such office or agency.  The Issuer hereby designates the Corporate
Trust Office of the Trustee as one such office or agency of the Issuer in
accordance with Section 2.3 hereof. 
If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and
demands.


 


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


 


SECTION 4.3 
Provision of Financial Information.


 


Whether or not required by the Commission, so
long as any Notes are outstanding, the Company will furnish to the Trustee and
to the Holders of Notes, or file electronically with the Commission through the
Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any
successor system), within the time periods specified in the Commission’s rules and
regulations:


 


(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” and, with respect to
the annual information only, a report on the annual financial statements 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 addition, whether or not required by the
Commission, the Company will file a copy of all of the information and reports
referred to in clauses (1) and (2) above 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 prospective investors. 
In addition, the Company and the Subsidiary Guarantors have agreed that,
for so long as any Notes remain outstanding, they will furnish to the Holders
and to prospective investors, upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


If the Company has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual
financial information required by the preceding paragraph shall include a
reasonably detailed presentation, 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,” of the financial
condition and results of operations of the Company and 


 


60

















 


its Restricted Subsidiaries
separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company.


 


The Trustee shall have no responsibility
whatsoever to determine if any filings with the Commission, or otherwise, have
taken place.  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 4.4 
Compliance Certificate.


 


The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year, an Officers’ Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether each has kept, observed,
performed and fulfilled its obligations under this Indenture (including, with
respect to any Restricted Payments made during such year, the basis upon which
the calculations required by Section 4.7 hereof were computed, which
calculations may be based upon the Company’s latest annual or quarterly
financial statements), and further stating, as to each such Officer signing
such certificate, that, to his or her knowledge, each entity is not in Default
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and
that, to his or her knowledge, no event has occurred and remains in existence
by reason of which payments on account of the principal of, premium, if any, or
interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


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


 


SECTION 4.5 
Taxes.


 


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


 


SECTION 4.6 
Stay, Extension and Usury Laws.


 


The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the 


 


61

















 


Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


SECTION 4.7 
Limitation on Restricted Payments.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, make any Restricted
Payment unless, at the time of and after giving effect to the proposed
Restricted Payment:


 


(a)           no
Default or Event of Default shall have occurred and be continuing or will
result as a consequence thereof;


 


(b)           after
giving effect to such Restricted Payment on a pro forma
basis, the Company would be permitted to Incur at least $1.00 of additional
Debt (other than Permitted Debt) pursuant to the provisions described in the
first paragraph under Section 4.9; and


 


(c)           after
giving effect to such Restricted Payment on a pro forma
basis, the aggregate amount expended or declared for all Restricted Payments
made on or after the Issue Date (excluding Restricted Payments permitted by
clauses (ii) through (vii) of the next succeeding paragraph) shall
not exceed the sum (without duplication) of:


 


(1)           50%
of the Consolidated Net Income (or, if Consolidated Net Income shall be a
deficit, minus 100% of such deficit) of the Company accrued on a cumulative
basis during the period (taken as one accounting period) from the beginning of
the first full fiscal quarter during which the Issue Date occurs and ending on
the last day of the fiscal quarter immediately preceding the date of such
proposed Restricted Payment, plus


 


(2)           100%
of the aggregate net proceeds (including the Fair Market Value of property
other than cash) received by the Company subsequent to the initial issuance of
the Notes either (i) as a contribution to its common equity capital or (ii) from
the issuance and sale (other than to a Subsidiary) of its Qualified Capital
Interests, including Qualified Capital Interests issued upon the conversion of
Debt or Redeemable Capital Interests of the Company, and from the exercise of
options, warrants or other rights to purchase such Qualified Capital Interests
(other than, in each case, Capital Interests or Debt sold to a Subsidiary of
the Company), plus


 


(3)           to
the extent that any Unrestricted Subsidiary of the Company designated as such
on and after the Issue Date is redesignated as a Restricted Subsidiary, the
lesser of (i) the Fair Market Value of the Company’s Investment in such
Subsidiary as of the date of such redesignation or (ii) such Fair Market
Value as of the date on which such Subsidiary was originally designated as an
Unrestricted Subsidiary, plus


 


62

















 


(4)           50%
of any dividends or interest payments received by the Company or a Restricted
Subsidiary on and after the Issue Date from an Unrestricted Subsidiary, to the
extent such dividends or interest payments were not otherwise included in the
calculation of Consolidated Net Income of the Company for such period.


 


Notwithstanding whether the foregoing
provisions would prohibit the Company and its Restricted Subsidiaries from
making a Restricted Payment, the Company and its Restricted Subsidiaries may
make the following Restricted Payments:


 


(i)            the
payment of any dividend on Capital Interests in the Company or a Restricted
Subsidiary within 60 days after declaration thereof if at the declaration date
such payment was permitted by the foregoing provisions of this Section 4.7;


 


(ii)           the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
of any Qualified Capital Interests of the Company by conversion into, or by or
in exchange for, Qualified Capital Interests, or out of net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company)
of other Qualified Capital Interests of the Company;


 


(iii)          the
redemption, defeasance, repurchase or acquisition or retirement for value of
any Debt of the Company or a Guarantor that is subordinate in right of payment
to the Notes or the applicable Note Guarantee out of the net cash proceeds of a
substantially concurrent issue and sale (other than to a Subsidiary of the
Company) of (x) new subordinated Debt of the Company or such Guarantor, as
the case may be, Incurred in accordance with this Indenture or (y) Qualified
Capital Interests of the Company;


 


(iv)          the
purchase, redemption, retirement or other acquisition for value of Capital
Interests in the Company held by employees or former employees of the Company
or any Restricted Subsidiary (or their estates or beneficiaries under their
estates) upon death, disability, retirement or termination of employment or
alteration of employment status or pursuant to the terms of any agreement under
which such Capital Interests were issued; provided
that the aggregate cash consideration paid for such purchase,
redemption, retirement or other acquisition of such Capital Interests does not
exceed $15.0 million in any calendar year, provided,
further, that any unused amounts
in any calendar year may be carried forward to one or more future periods
subject to a maximum aggregate amount of repurchases made pursuant to this
clause (iv) not to exceed $20.0 million in any calendar year; provided, however,
that such amount in any calendar year may be increased by an amount not to
exceed (A) the cash proceeds received by the Company or any of its
Restricted Subsidiaries from the sale of Qualified Capital Interests of the
Company or any direct or indirect parent company of the Company (to the extent
contributed to the Company) to employees of the Company and its Restricted
Subsidiaries that occurs after the Issue Date; provided,
however, that the amount of such cash
proceeds utilized for any such repurchase, retirement, other acquisition or
dividend will not increase the amount available for Restricted Payments under
clause (c) of the first paragraph of this Section 4.7; plus (B) the
cash proceeds of key man life insurance policies received by the Company and
its Restricted Subsidiaries 


 


63

















 


after the Issue Date (provided, however, that
the Company may elect to apply all or any portion of the aggregate increase
contemplated by the proviso of this clause (iv) in any calendar year and,
to the extent any payment described under this clause (iv) is made by
delivery of Debt and not in cash, such payment shall be deemed to occur only
when, and to the extent, the obligor on such Debt makes payments with respect
to such Debt);


 


(v)           repurchase
of Capital Interests deemed to occur upon the exercise of stock options,
warrants or other convertible or exchangeable securities;


 


(vi)          cash
payment, in lieu of issuance of fractional shares in connection with the
exercise of warrants, options or other securities convertible into or
exchangeable for the Capital Interests of the Company or a Restricted
Subsidiary;


 


(vii)         the
declaration and payment of dividends to holders of any class or series of
Redeemable Capital Interests of the Company or any Restricted Subsidiary issued
or Incurred in compliance with Section 4.9 to the extent such dividends
are included in the definition of Consolidated Fixed Charges;


 


(viii)        to
the extent no Default in any payment in respect of principal or interest under
the Notes or the Credit Agreement or Event of Default has occurred and is
continuing or will occur as a consequence thereof, upon the occurrence of a
Change of Control or an Asset Sale, the defeasance, redemption, repurchase or
other acquisition of any subordinated Debt pursuant to provisions substantially
similar to those contained in Section 4.10 and Section 4.14 at a
Purchase Price not greater than 101% of the principal amount thereof (in the
case of a Change of Control) or at a percentage of the principal amount thereof
not higher than the principal amount applicable to the Notes (in the case of an
Asset Sale), plus any accrued and unpaid interest thereon; provided
that prior to or contemporaneously with such defeasance, redemption, repurchase
or other acquisition, the Company has made an Offer to Purchase with respect to
the Notes and has repurchased all Notes validly tendered for payment and not
withdrawn in connection therewith;


 


(ix)           to
the extent no Default in any payment in respect of principal or interest under
the Notes or the Credit Agreement or Event of Default has occurred and is
continuing or will result as a consequence thereof, the payment of dividends on
the Company’s common stock and the purchase, repurchase, redemption, defeasance
or other acquisition or retirement of any Qualified Capital Interests of the
Company in an aggregate amount not to exceed $75.0 million in any calendar
year; and


 


(x)            to
the extent no Default in any payment in respect of principal or interest under
the Notes or the Credit Agreement or Event of Default has occurred and is
continuing or will occur as a consequence thereof, other Restricted Payments
not in excess of $75.0 million in the aggregate.


 


If the Company makes a Restricted Payment
which, at the time of the making of such Restricted Payment, in the good faith
determination of the Company, would be permitted under the requirements of this
Indenture, such Restricted Payment shall be deemed to have been made 


 


64

















 


in compliance with this
Indenture notwithstanding any subsequent adjustment made in good faith to the
Company’s financial statements affecting Consolidated Net Income.


 


For purposes of this Section 4.7, if a
particular Restricted Payment involves a non-cash payment, including a distribution
of assets, then such Restricted Payment shall be deemed to be an amount equal
to the cash portion of such Restricted Payment, if any, plus an amount equal to
the Fair Market Value of the non-cash portion of such Restricted Payment.


 


SECTION 4.8 
Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, cause or suffer to
exist or become effective or enter into any encumbrance or restriction (other
than pursuant to this Indenture or any law, rule, regulation or order) on the
ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions on its Capital Interests owned by the Company or any Restricted
Subsidiary or pay any Debt or other obligation owed to the Company or any
Restricted Subsidiary, (ii) make loans or advances to the Company or any
Restricted Subsidiary thereof or (iii) transfer any of its property or
assets to the Company or any Restricted Subsidiary.


 


However, the preceding restrictions will not
apply to the following encumbrances or restrictions (including those existing
under or by reason of):


 


(a)           any
encumbrance or restriction in existence on the Issue Date, including those required
by the Credit Agreement or by any other agreement or documents entered into in
connection with the Credit Agreement and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements, or
refinancings, of any of the foregoing agreements or documents, provided that the amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings, in
the good faith judgment of the Company, are no more restrictive in any material
respect, taken as a whole, with respect to such dividend or other payment
restrictions than those contained in these agreements on the Issue Date or
refinancings thereof;


 


(b)           any
encumbrance or restriction existing at the time of the acquisition of property,
so long as the encumbrances or restrictions relate solely to the property so
acquired (and are not or were not created in anticipation of or in connection
with the acquisition thereof);


 


(c)           any
encumbrance or restriction which exists with respect to a Person that becomes a
Restricted Subsidiary or merges with or into a Restricted Subsidiary of the
Company on or after the Issue Date, which is in existence at the time such
Person becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary,
but not created in connection with or in anticipation of such Person becoming a
Restricted Subsidiary or merging with or into a Restricted Subsidiary, and
which is not applicable to any Person or the property or assets of any Person
other than such Person or the property or assets of such Person becoming a
Restricted Subsidiary;


 


65

















 


(d)           any
encumbrance or restriction pursuant to an agreement effecting a permitted
renewal, refunding, replacement, refinancing or extension of Debt issued
pursuant to an agreement containing any encumbrance or restriction referred to
in the foregoing clauses (a) through (c), so long as such encumbrances and
restrictions contained in any such refinancing agreement are no less favorable
in any material respect to the Holders than the encumbrances and restrictions
contained in the agreements governing the Debt being renewed, refunded,
replaced, refinanced or extended in the good faith judgment of the Company;


 


(e)           customary
provisions restricting subletting or assignment of any lease, contract, or
license of the Company or any Restricted Subsidiary or provisions in agreements
that restrict the assignment of such agreement or any rights thereunder;


 


(f)            any
encumbrance or restriction by reason of applicable law, rule, regulation or
order;


 


(g)           any
encumbrance or restriction under this Indenture, the Notes and the Note
Guarantees;


 


(h)           any
encumbrance or restriction in connection with the sale of assets or Capital
Interest, including, without limitation, any agreement for the sale or other
disposition of a Subsidiary that restricts distributions by that Subsidiary
pending its sale or other disposition;


 


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


 


(j)            encumbrances
or restrictions that are customary provisions with respect to the disposition
or distribution of assets or property in joint venture agreements, asset sale
agreements, stock sale agreements, sale leaseback agreements and other similar
agreements;


 


(k)           encumbrances
and restrictions under any instrument governing Debt or Capital Interests of a
Person acquired by the Company or any of the Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Debt or
Capital Interests were incurred or issued in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired, provided that, in the case of Debt, such Debt was permitted
by the terms of this Indenture to be Incurred;


 


(l)            encumbrances
and restrictions arising in respect of purchase money obligations (including
Capital Lease Obligations) for property acquired in the ordinary course of
business to the extent such restrictions and encumbrances apply to the property
so acquired (and proceeds thereof) and are of the nature described in clause (iii) of
the first paragraph of this Section 4.8;


 


66

















 


(m)          Liens
securing Debt or other obligations otherwise permitted to be Incurred under
this Indenture, including pursuant to Section 4.12, that limit the right
of the debtor to dispose of the assets subject to such Liens;


 


(n)           encumbrances
or restrictions relating to any Non-Recourse Receivable Subsidiary Indebtedness
or other contractual requirements of a Receivable Subsidiary that is a
Restricted Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such
Receivable Subsidiary or the accounts receivable and other financial assets
described in the definition of Qualified Receivables Transaction which are
subject to such Qualified Receivables Transaction; and


 


(o)           any
other agreement governing Debt entered into after the Issue Date that contains
encumbrances and restrictions that are not materially more restrictive with
respect to any Restricted Subsidiary than those in effect on the Issue Date
with respect to that Restricted Subsidiary pursuant to agreements in effect on
the Issue Date.


 


Nothing contained in this Section 4.8
shall prevent the Company or any Restricted Subsidiary from (i) creating,
incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.12
or (ii) restricting the sale or other disposition of property or assets of
the Company or any of its Restricted Subsidiaries that secure Debt of the
Company or any of its Restricted Subsidiaries Incurred in accordance with Section 4.9
and Section 4.12 hereof.


 


SECTION 4.9 
Limitation on Incurrence of Debt.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted
Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after
giving effect to the Incurrence of such Debt and the receipt and application of
the proceeds therefrom, (a) the Consolidated Fixed Charge Coverage Ratio
of the Company and its Restricted Subsidiaries, determined on a pro forma basis as if any such Debt (including any other
Debt being Incurred contemporaneously, other than Debt Incurred under the
revolving portion of a Credit Facility), and any other Debt Incurred since the
beginning of the Four Quarter Period (other than Debt Incurred under the
revolving portion of a Credit Facility), had been Incurred and the proceeds
thereof had been applied at the beginning of the Four Quarter Period, and any
other Debt repaid (other than Debt Incurred under the revolving portion of a
Credit Facility) since the beginning of the Four Quarter Period had been repaid
at the beginning of the Four Quarter Period, would be greater than 2.00 to 1.00
and (b) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the Incurrence of such Debt.


 


If, during the Four Quarter Period or
subsequent thereto and prior to the date of determination, the Company or any
of its Restricted Subsidiaries shall have engaged in any Asset Sale or Asset
Acquisition, Investment, merger, consolidation, discontinued operation (as
determined in accordance with GAAP) or shall have designated any Restricted
Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to
be a Restricted Subsidiary, Consolidated Cash Flow Available for Fixed Charges
and Consolidated Interest Expense for the Four Quarter Period shall be calculated
on a pro forma basis giving effect to such
Asset Sale or Asset Acquisition, Investment, merger, consolidation,
discontinued operation or designation, as 


 


67

















 


the case may be, and the
application of any proceeds therefrom as if such Asset Sale or Asset
Acquisition, Investment, merger, consolidation, discontinued operation or
designation had occurred on the first day of the Four Quarter Period.


 


If the Debt which is the subject of a
determination under this provision is Acquired Debt, or Debt Incurred in
connection with the substantially contemporaneous acquisition of any Person,
business, property or assets, or Debt of an Unrestricted Subsidiary being
designated as a Restricted Subsidiary, then such ratio shall be determined by
giving effect (on a pro forma
basis, as if the transaction had occurred at the beginning of the Four Quarter
Period) to (x) the Incurrence of such Acquired Debt or such other Debt by
the Company or any of its Restricted Subsidiaries and (y) the inclusion,
in Consolidated Cash Flow Available for Fixed Charges, of the Consolidated Cash
Flow Available for Fixed Charges of the acquired Person, business, property or
assets or redesignated Subsidiary.


 


Notwithstanding the first paragraph above,
the Company and its Restricted Subsidiaries may Incur Permitted Debt.


 


For purposes of determining any particular
amount of Debt under this Section 4.9, Guarantees or obligations with
respect to letters of credit supporting Debt otherwise included in the
determination of such particular amount shall not be included.  For purposes of determining compliance with
this Section 4.9, in the event that an item of Debt meets the criteria of
more than one of the types of Debt described above, including categories of
Permitted Debt and under clause (a) of the first paragraph of this Section 4.9,
the Company, in its sole discretion, shall classify, and from time to time may
reclassify, all or any portion of such item of Debt.  For purposes of determining compliance of any
non-U.S. dollar-denominated Debt with this Section 4.9, the U.S.
dollar-equivalent principal amount of Debt denominated in a foreign currency
shall at all times be calculated based on the relevant currency exchange rate
in effect on the date such Debt was Incurred, in the case of term Debt, or
first committed, in the case of revolving credit Debt, provided,
however, that if such Debt is Incurred
to refinance other Debt denominated in the same or different currency, and such
refinancing would cause the applicable U.S. dollar-denominated restriction to
be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such
refinancing Debt does not exceed the principal amount of such indebtedness
being refinanced.


 


The accrual of interest, the accretion or
amortization of original issue discount and the payment of interest on Debt in
the form of additional Debt or payment of dividends on Capital Interests in the
forms of additional shares of Capital Interests with the same terms will not be
deemed to be an Incurrence of Debt for purposes of this Section 4.9.


 


The Company and any Guarantor will not Incur
any Debt that pursuant to its terms is subordinate or junior in right of
payment to any Debt unless such Debt is subordinated in right of payment to the
Notes and the Note Guarantees to the same extent; provided
that Debt will not be considered subordinate or junior in right of payment to
any other Debt solely by virtue of being unsecured or secured to a greater or
lesser extent or with greater or lower priority or by virtue of structural
subordination.


 


68






 


 












 


SECTION 4.10 
Limitation on Asset Sales.


 


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


 


(1)           the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market
Value of the assets or Capital Interests issued or sold or otherwise disposed
of; and


 


(2)           at
least 75% of the consideration received in the Asset Sale by the Company or
such Restricted Subsidiary is in the form of cash or Eligible Cash
Equivalents.  For purposes of this
provision, each of the following will be deemed to be cash:


 


(a)           any liabilities, as
shown on the most recent consolidated balance sheet of the Company or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Note Guarantee) that are
assumed by the transferee of any such assets pursuant to a customary assignment
and assumption agreement that releases the Company or such Restricted
Subsidiary from further liability with respect thereto;


 


(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 within 450 days of their receipt to the extent
of the cash received in that conversion; and


 


(c)           any Designated
Non-cash Consideration received by the Company or any such Restricted
Subsidiary 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, not to exceed the
greater of $50.0 million and 5% of the Consolidated Net Tangible Assets of the
Company and its Restricted Subsidiaries at the time of the receipt of such
Designated Non-cash Consideration, with the Fair Market Value of each item of
Designated Non-cash Consideration being measured at the time received and
without giving effect to subsequent changes in value.


 


Within 360 days after the receipt of any Net
Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply such Net Cash Proceeds at its option:


 


(i)            to
permanently repay Debt under the Credit Facilities and, if the Obligation
repaid is revolving credit Debt, to correspondingly reduce commitments with
respect thereto;


 


(ii)           to
acquire all or substantially all of the assets of, or any Capital Interests of,
another Permitted Business, if, after giving effect to any such acquisition of
Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary
of the Company;


 


69

















 


(iii)          to
make capital expenditures in or that are used or useful in a Permitted Business
or to make expenditures for maintenance, repair or improvement of existing
properties and assets in accordance with the provisions of this Indenture;


 


(iv)          to
acquire other assets (other than inventory) that are used or useful in a
Permitted Business;


 


(v)           to
repay or repurchase Debt secured by the assets of the Company or any Restricted
Subsidiaries; or


 


(vi)          any
combination of the foregoing.


 


Any Net Cash Proceeds from Asset Sales that
are not applied or invested as provided in the preceding paragraph of this Section 4.10
will constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $100.0 million, the Company will, within 30 days, make an Offer to
Purchase to all Holders of Notes (on a pro rata basis
among each series of Notes), and to all holders of other Debt ranking pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to assets sales, equal to the
Excess Proceeds.  The offer price in any
Offer to Purchase will be equal to 100% of the principal amount plus accrued
and unpaid interest to the date of purchase, and will be payable in cash.  If any Excess Proceeds remain after
consummation of an Offer to Purchase, the Company may use those funds for any
purpose not otherwise prohibited by this Indenture and they will no longer
constitute Excess Proceeds.  If the
aggregate principal amount of Notes and other pari passu
Debt tendered into such Offer to Purchase exceeds the amount of Excess Proceeds,
the Trustee, upon receipt of a Company Order, will select the Notes to be
purchased on a pro rata basis among each series
of Notes.  Upon completion of each Offer
to Purchase, the amount of Excess Proceeds will be reset at zero.


 


The Company will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other applicable securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Offer to
Purchase.  To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will be deemed to have complied with its
obligations under the Asset Sale provisions of this Indenture by virtue of such
compliance.


 


SECTION 4.11 
Limitation on Transactions with Affiliates.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, make any payment to,
or sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make or
amend any transaction or series of related transactions, contract, agreement,
loan, advance or guarantee with, or for the benefit of, any Affiliate of the
Company (each of the foregoing, an “Affiliate Transaction”)
involving with respect to each such Affiliate Transaction or series of related
Affiliate Transactions aggregate consideration in excess of $10.0 million,
unless:


 


(i)            such
Affiliate Transaction is on terms that are not materially less favorable to the
Company or the relevant Subsidiary than those that could reasonably have been 


 


70

















 


obtained in a comparable arm’s
length transaction by the Company or such Subsidiary with an unaffiliated
party;


 


(ii)           with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, the
Company delivers to the Trustee a resolution adopted in good faith by the
majority of the Board of Directors of the Company approving such Affiliate
Transaction and set forth in an Officers’ Certificate certifying that such
Affiliate Transaction complies with clause (i) above; and


 


(iii)          with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $50.0 million, the
Company must obtain and deliver to the Trustee a written opinion of a
nationally recognized investment banking, accounting or appraisal firm stating
that the transaction is fair to the Company or such Restricted Subsidiary, as
the case may be, from a financial point of view.


 


The foregoing limitations do not limit, and
shall not apply to:


 


(1)           Restricted Payments
that are permitted by the provisions of this Indenture pursuant to Section 4.7;


 


(2)           the payment of
reasonable and customary compensation and indemnities and other benefits to
members of the Board of Directors of the Company or a Restricted Subsidiary who
are outside directors;


 


(3)           the payment of
reasonable and customary compensation and other benefits (including retirement,
health, option, deferred compensation and other benefit plans) and indemnities
to officers and employees of the Company or any Restricted Subsidiary as
determined by the Board of Directors thereof in good faith;


 


(4)           transactions between
or among the Company and/or its Restricted Subsidiaries and transactions
between or among the Company or any Restricted Subsidiary, on the one hand, and
any Leasing Subsidiary, on the other hand, (including the contribution of
overhead costs) in the ordinary course of business and consistent with past
practice or constituting undertakings customary in lease securitization
transactions for the benefit of any Leasing Subsidiary;


 


(5)           any agreement or
arrangement as in effect on the Issue Date and any amendment or modification
thereto so long as such amendment or modification is not more disadvantageous
in any material respect to the Holders of the Notes;


 


(6)           any contribution of
capital to the Company;


 


(7)           transactions
permitted by, and complying with, Article V and Section 10.5 hereof;


 


71

















 


(8)           any transaction with
a joint venture, partnership, limited liability company or other entity that
constitutes an Affiliate solely because the Company or a Restricted Subsidiary
owns an equity interest in such joint venture, partnership, limited liability company
or other entity;


 


(9)           transactions with
customers, clients, suppliers or purchasers or sellers of goods or services, in
each case, in the ordinary course of business and on terms that are not
materially less favorable to the Company or such Restricted Subsidiary, as the
case may be, as determined in good faith by the Company, than those that could
be obtained in a comparable arm’s length transaction with a Person that is not
an Affiliate of the Company;


 


(10)         transactions effected
as part of a Qualified Receivables Transaction; and


 


(11)         sales or leases of
goods to joint ventures and Affiliates (but excluding any officers or
directors) in the ordinary course of business for less than fair market value
but not for less than cost.


 


SECTION 4.12 
Limitation on Liens.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries, directly or indirectly, to enter into, create,
incur, assume or suffer to exist any Liens of any kind (other than Permitted
Liens) on or with respect to any of its property or assets now owned or
hereafter acquired or any of its interest therein or any income or profits
therefrom, which Liens secure Debt, without securing the Notes and all other
amounts due under this Indenture equally and ratably with (or prior to) the
Debt secured by such Lien until such time as such Debt is no longer secured by
such Lien; provided that if the Debt so secured is
subordinated by its terms to the Notes or a Note Guarantee, the Lien securing
such Debt will also be so subordinated by its terms to the Notes and the
Guarantees at least to the same extent.


 


SECTION 4.13 
Limitation on Sale and Leaseback Transactions.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction
unless:


 


(i)            the
consideration received in such Sale and Leaseback Transaction is at least equal
to the Fair Market Value of the property sold, as confirmed by an Officers’
Certificate,


 


(ii)           prior
to and after giving effect to the Attributable Debt in respect of such Sale and
Leaseback Transaction, the Company and such Restricted Subsidiary comply with Section 4.9,
and


 


(iii)          at
or after such time the Company and such Restricted Subsidiary also comply with Section 4.10.


 


72

















 


SECTION 4.14 
Offer to Purchase upon Change of Control.


 


Upon the occurrence of a Change of Control,
unless the Company has exercised its right to redeem all of the Notes in
accordance with Section 3.7, the Company will make an Offer to Purchase
(the “Change of Control Offer”) all of the
outstanding Notes at a Purchase Price in cash equal to 101% of the principal
amount tendered, together with accrued and unpaid interest, if any, to but not
including the Purchase Date (the “Change of Control Payment”).  For purposes of the foregoing, an Offer to
Purchase shall be deemed to have been made if (i) within 60 days following
the date of the consummation of a transaction or series of transactions that
constitutes a Change of Control, the Company commences an Offer to Purchase all
outstanding Notes at the Purchase Price (provided that
the running of such 60-day period shall be suspended, for up to a maximum of 30
days, during any period when the commencement of such Offer to Purchase is
delayed or suspended by reason of any court’s or governmental authority’s
review of or ruling on any materials being employed by the Company to effect
such Offer to Purchase, so long as the Company has used and continues to use
its commercially reasonable efforts to make and conclude such Offer to Purchase
promptly) and (ii) all Notes properly tendered pursuant to the Offer to
Purchase are purchased on the terms of such Offer to Purchase.


 


The Change of Control provisions described
above will be applicable whether or not any other provisions of this Indenture
are applicable.  Except as described
above with respect to a Change of Control, this Indenture does not contain
provisions that permit the Holders to require that the Company repurchase or
redeem the Notes in the event of a takeover, recapitalization or similar
transaction.


 


The Company shall not be required to make a
Change of Control Offer upon a Change of Control if (i) a third party
makes the Change of Control Offer contemporaneously with or upon a Change of Control,
in the manner, at the times and otherwise in compliance with the requirements
set forth herein applicable to a Change of Control Offer made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer or (ii) a notice of redemption of all outstanding Notes has
been given in accordance with this Indenture.


 


To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions
of this Indenture, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached their obligations under
the Change of Control provisions of this Indenture by virtue of such
compliance.


 


In addition, an Offer to Purchase may be made
in advance of a Change of Control, conditional upon such Change of Control, if
a definitive agreement is in place for the Change of Control at the time of
launching the Offer to Purchase.


 


SECTION 4.15 
Corporate Existence.


 


Subject to Section 4.14 and Article V
hereof, as the case may be, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership, limited liability company or other existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents (as the 


 


73

















 


same may be amended from
time to time) of the Company or any such Restricted Subsidiary and the material
rights (charter and statutory), licenses and franchises of the Company and its
Restricted Subsidiaries; provided that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders.


 


SECTION 4.16 
Business Activities.


 


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


 


SECTION 4.17 
Additional Note Guarantees.


 


If the Company or any of its Restricted
Subsidiaries acquires or creates another Subsidiary after the Issue Date and
such Subsidiary Guarantees or Incurs any Debt under the Credit Agreement or any
other Debt for borrowed money of the Company or any of its Restricted
Subsidiaries of at least $25.0 million, then that newly acquired or created
Subsidiary shall become a Guarantor by execution of an indenture supplemental
to this Indenture within 60 days of the date on which it Guaranteed or Incurred
such other Debt; provided, that
no Unrestricted Subsidiary or Restricted Subsidiary that is a Foreign
Restricted Subsidiary shall be required to become a Guarantor unless it
provides a Guarantee of Debt under the Credit Agreement or any other Debt for
borrowed money of the Company or any of its Restricted Subsidiaries of at least
$25.0 million that is Incurred by the Company or a Restricted Subsidiary that
is not a Foreign Restricted Subsidiary.


 


SECTION 4.18 
Limitation on Creation of Unrestricted Subsidiaries.


 


The Company may designate any Subsidiary of
the Company to be an “Unrestricted Subsidiary” as provided below, in which
event such Subsidiary and each other Person that is then or thereafter becomes
a Subsidiary of such Subsidiary will be deemed to be an Unrestricted
Subsidiary.


 


The Company may designate any Subsidiary to
be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Interests
of, or owns or holds any Lien on any property of, any other Restricted
Subsidiary of the Company, provided that
either:


 


(x)            the
Subsidiary to be so designated has total assets of $5,000 or less; or


 


(y)           the
Company could make a Restricted Payment at the time of designation in an amount
equal to the greater of the Fair Market Value or book value of such Subsidiary
pursuant to Section 4.7 and such amount is thereafter treated as a
Restricted Payment for the purpose of calculating the amount available for
Restricted Payments thereunder.


 


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An Unrestricted Subsidiary may be designated
as a Restricted Subsidiary if (i) all the Debt of such Unrestricted
Subsidiary could be Incurred pursuant to Section 4.9 and (ii) all the
Liens on the property and assets of such Unrestricted Subsidiary could be
incurred pursuant to Section 4.12.


 


SECTION 4.19 
Payments for Consent.


 


The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
pay or cause to be paid any consideration to or for the benefit of any Holder
of Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid to all Holders of the Notes that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.


 


SECTION 4.20 
Suspension of Covenants.


 


(a)           During any period of time (a “Suspension Period”) that: (i) the
Notes have Investment Grade Ratings from both Rating Agencies and (ii) no
Default or Event of Default has occurred and is continuing under this Indenture
(the occurrence of the events described in the foregoing clauses (i) and (ii) being
collectively referred to as a “Covenant
Suspension Event”), the Company and its Restricted Subsidiaries will
not be subject to the following provisions of this Indenture (collectively, the
“Suspended Covenants”), and
during a Suspension Period, the Company may not designate any of its
Subsidiaries as Unrestricted Subsidiaries unless the Company could have
designated such Subsidiaries as Unrestricted Subsidiaries in compliance with
this Indenture assuming the following provisions of this Indenture set forth
below had not been suspended:


 


(i)            Section 4.7;


 


(ii)           Section 4.8;


 


(iii)          Section 4.9;


 


(iv)          Section 4.10;


 


(v)           Section 4.11; and


 


(vi)          clause (iii) of Section 5.1.


 


(b)           In the
event that the Company and its Restricted Subsidiaries are not subject to the
Suspended Covenants with respect to the Notes for any Suspension Period and,
subsequently, (x) either one or both Rating Agencies withdraws its rating
or downgrades the rating assigned to the Notes below the required Investment
Grade Rating or (y) the Company or any of its affiliates enters into an
agreement to effect a transaction that would result in a Change of Control and
either one or both Rating Agencies indicate that if consummated, such
transaction (alone or together with any related recapitalization or refinancing
transactions) would cause such Rating Agency to withdraw its Investment Grade
Rating or downgrade the ratings assigned to the Notes below an Investment Grade
Rating 


 


75

















 


(such
date of withdrawal or downgrade in clause (x) or (y), a “Reinstatement Date”), then the Company and
its Restricted Subsidiaries will after the Reinstatement Date again be subject
to the Suspended Covenants with respect to future events for the benefit of the
Notes (unless and until a Suspension Event again exists).


 


(c)           On the Reinstatement Date, all Debt
incurred during a Suspension Period will be classified as having been Incurred
or issued pursuant to the first paragraph of Section 4.9 or, at the Company’s
option, one of the clauses set forth in the definition of Permitted Debt (to
the extent such Debt would be permitted to be Incurred thereunder as of the
Reinstatement Date and after giving effect to Debt Incurred prior to the
Suspension Period and outstanding on the Reinstatement Date) and subject Section 4.9.  To the extent such Debt would not be so
permitted to be Incurred pursuant to Section 4.9, such Debt will be deemed
to have been outstanding on the Issue Date, so that it is classified as permitted
under clause (iv) of the definition of Permitted Debt.


 


(d)           Calculations made after the
Reinstatement Date of the amount available to be made as Restricted Payments
under Section 4.7 will be made as though such covenant had been in effect
from the Issue Date and throughout the Suspension Period. Accordingly,
Restricted Payments made during the Suspension Period will reduce the amount
available to be made as Restricted Payments under the first paragraph of Section 4.7
to the extent provided therein.


 


(e)           Notwithstanding that the Suspended
Covenants 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 Suspended Covenants
during a Suspension Period (or on the Reinstatement Date or after a Suspension
Period based solely on events that occurred during the Suspension Period).


 


(f)            The Company will provide prompt
written notice to the Trustee of any Covenant Suspension Event and any
Reinstatement Date.


 


ARTICLE V




SUCCESSORS


 


SECTION 5.1 
Consolidation, Merger, Conveyance, Transfer or Lease.


 


The Company will not in any transaction or
series of related transactions, consolidate with or merge into any other Person
(other than a merger of a Restricted Subsidiary into the Company in which the
Company is the continuing Person), or sell, assign (excluding any assignment
solely as collateral for security purposes under a Credit Facility, but not any
outright assignment upon the foreclosure on any such collateral), convey,
transfer, lease or otherwise dispose of all or substantially all of the assets
of the Company and its Restricted Subsidiaries (determined on a consolidated
basis), taken as a whole, to any other Person, unless:


 


(i)            either:  (a) the Company shall be the continuing
Person or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person that acquires,
by sale, assignment, conveyance, transfer, lease or other disposition, all or
substantially all of the property and assets of the Company and its 


 


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Restricted Subsidiaries
(such Person, the “Surviving Entity”),
(1) shall be a corporation, partnership, limited liability company or
similar entity organized and validly existing under the laws of the United
States, any political subdivision thereof or any state thereof or the District
of Columbia and (2) shall expressly assume, by a supplemental indenture,
the due and punctual payment of all amounts due in respect of the principal of
(and premium, if any) and interest on all the Notes and the performance of the
covenants and obligations of the Company under this Indenture; provided that at any time the Company or its successor is
not a corporation, there shall be a co-issuer of the Notes that is a
corporation;


 


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


 


(iii)          immediately
after giving effect to any such transaction or series of transactions on a pro forma basis (including, without limitation, any Debt
Incurred or anticipated to be Incurred in connection with or in respect of such
transaction or series of transactions) as if such transaction or series of
transactions had occurred on the first day of the determination period, (a) the
Company (or the Surviving Entity if the Company is not continuing) could Incur
$1.00 of additional Debt (other than Permitted Debt) under the provisions
described in the first paragraph of Section 4.9, and (b) the
Consolidated Fixed Charge Coverage Ratio for the Company (or the Surviving
Entity if the Company is not continuing) and its Restricted Subsidiaries for
the most recent Four Quarter Period shall not be not less than such
Consolidated Fixed Charge Coverage Ratio immediately prior to such transaction
(or the first such transaction if there are a series of transactions); and


 


(iv)          the
Company delivers, or causes to be delivered, to the Trustee, in form
satisfactory to the Trustee, an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, conveyance,
assignment, transfer, lease or other disposition complies with the requirements
of this Indenture.


 


Notwithstanding the foregoing, failure to satisfy
the requirements of the preceding clauses (ii) and (iii) will not
prohibit:


 


(a)           a
merger between the Company and a Restricted Subsidiary that is a wholly owned
Subsidiary of the Company or the sale, assignment, conveyance, transfer, lease
or other disposition of all or substantially all of the assets of the Company
to a Restricted Subsidiary that is a wholly owned Subsidiary of the Company; or


 


(b)           a
merger between the Company and an Affiliate incorporated solely for the purpose
of converting the Company into a corporation organized under the laws of the
United States or any political subdivision or state thereof;


 


so long as, in each case, the amount of Debt of the
Company and its Restricted Subsidiaries is not increased thereby.


 


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For all purposes of this Indenture and the
Notes, Subsidiaries of any Surviving Entity will, upon such transaction or
series of transactions, become Restricted Subsidiaries or Unrestricted
Subsidiaries as provided pursuant to this Indenture and all Debt, and all Liens
on property or assets, of the Surviving Entity and its Subsidiaries that was
not Debt, or were not Liens on property or assets, of the Company and its
Subsidiaries immediately prior to such transaction or series of transactions
shall be deemed to have been incurred upon such transaction or series of
transactions.


 


Upon any transaction or series of
transactions that are of the type described in, and are effected in accordance
with, conditions described in this Section 5.1, the Surviving Entity shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer, under this Indenture with the same effect as if such Surviving
Entity had been named as the Issuer therein; and when a Surviving Person duly
assumes all of the obligations and covenants of the Issuer pursuant to this
Indenture and the Notes, except in the case of a lease, the predecessor Person
shall be relieved of all such obligations.


 


SECTION 5.2 
Successor Person Substituted.


 


Upon any consolidation or merger, or any
sale, assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.1
hereof, the successor corporation formed by such consolidation or into or with
which the Company (and, if necessary, any co-issuer) is merged or to which such
sale, assignment, conveyance, transfer, lease or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the “Company” shall refer instead to
the successor corporation and not to the Company), and shall exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein and when such
successor Person duly assumes all the obligations and covenants of the Company
pursuant to this Indenture and the Notes the predecessor Person shall be
relieved of all such obligations; provided, however, that in the event of a transfer or lease, the
predecessor shall not be released from the payment of principal and interest or
other obligations on the Notes.


 


ARTICLE VI



DEFAULTS AND REMEDIES


 


SECTION 6.1 
Events of Default.


 


Each of the following constitutes an “Event of Default”:


 


(1)           default
in the payment in respect of the principal of (or premium, if any, on) any Note
when due and payable (whether at Stated Maturity or upon repurchase,
acceleration, optional redemption or otherwise);


 


(2)           default
in the payment of any interest upon any Note when it becomes due and payable,
and continuance of such default for a period of 30 days;


 


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(3)          failure to perform or comply with Section 4.3 and
continuance of such failure to perform or comply for a period of 120 days after
written notice thereof has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the outstanding Notes;


 


(4)          except as permitted by or in accordance with the terms of
this Indenture, any Note Guarantee shall for any reason cease to be, or it
shall be asserted by any Guarantor or the Company not to be, in full force and
effect and enforceable in accordance with its terms;


 


(5)          default in the performance, or breach, of any covenant or
agreement of the Company or any Guarantor in this Indenture (other than a
covenant or agreement, a default in whose performance or whose breach is
specifically dealt with in clauses (1), (2) (3) or (4) above),
and continuance of such default or breach for a period of 60 days after written
notice thereof has been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the outstanding Notes;


 


(6)          a default or defaults under any bonds, debentures, notes or
other evidences of Debt (other than the Notes) by the Company or any Restricted
Subsidiary having, individually or in the aggregate, a principal or similar
amount outstanding of at least the greater of $50.0 million and 5% of the
Consolidated Net Tangible Assets of the Company and its Restricted
Subsidiaries, whether such Debt now exists or shall hereafter be created, which
default or defaults shall have resulted in the acceleration of the maturity of
such Debt prior to its express maturity or (except in the case of any Debt
owing to the Company by any Restricted Subsidiary or any Debt of any Restricted
Subsidiary owing to the Company or another Restricted Subsidiary) shall
constitute a failure to pay an amount of such Debt equal to at least the
greater of $50.0 million and 5% of the Consolidated Net Tangible Assets of the
Company and its Restricted Subsidiaries when due and payable after the
expiration of any applicable grace period with respect thereto;


 


(7)          the entry against the Company or any Restricted Subsidiary
of a final judgment or final judgments for the payment of money in an aggregate
amount in excess of the greater of $50.0 million and 5% of the Consolidated Net
Tangible Assets of the Company and its Restricted Subsidiaries (net of amounts
covered by insurance for which the issuer thereof has been notified of such
claim and has not challenged such coverage), by a court or courts of competent
jurisdiction, which judgments remain undischarged, unwaived, unstayed, unbonded
or unsatisfied for a period of 60 consecutive days; or


 


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


 


(a)           commences
a voluntary case,


 


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


 


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(c)           consents
to the appointment of a custodian of it or for all or substantially all of its
property,


 


(d)           makes
a general assignment for the benefit of its creditors, or


 


(e)           generally
is not paying its debts as they become due; or


 


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


 


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


 


(b)           appoints
a custodian of the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company or
any of its Restricted Subsidiaries; or


 


(c)           orders
the liquidation of the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary


 


and the order or decree remains unstayed and in effect for 60
consecutive days.


 


SECTION 6.2 
Acceleration.


 


If an Event of Default (other than an Event
of Default specified in clause (8) of Section 6.1 with respect to the
Company) occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may declare the principal of the Notes and any accrued
interest on the Notes to be due and payable immediately by a notice in writing
to the Company (and to the Trustee if given by Holders); provided,
however, that after such acceleration,
but before a judgment or decree based on acceleration, the Holders of a
majority in aggregate principal amount of the outstanding Notes may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the nonpayment of accelerated principal of or interest on
the Notes, have been cured or waived as provided in this Indenture.


 


In the event of a declaration of acceleration
of the Notes solely because an Event of Default described in clause (6) of
Section 6.1 has occurred and is continuing, the declaration of
acceleration of the Notes shall be automatically rescinded and annulled if the
event of default or payment default triggering such Event of Default pursuant
to clause (6) of Section 6.1 shall be remedied or cured by the
Company or a Restricted Subsidiary of the Company or waived by the holders of
the relevant Debt within 20 Business Days after the declaration of acceleration
with respect thereto and if the rescission and annulment of the acceleration of
the Notes would not conflict with any judgment or decree of a court of
competent jurisdiction obtained by the Trustee for the payment of amounts due
on the Notes.


 


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If an Event of Default specified in clause (8) of
Section 6.1 occurs with respect to the Company, the principal of and any
accrued interest on the Notes then outstanding shall ipso facto
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.  The
Trustee may withhold from Holders notice of any Default (except Default in
payment of principal of, premium, if any, and interest) if the Trustee
determines that withholding notice is in the interests of the Holders to do so.


 


No Holder of any Note will have any right to
institute any proceeding with respect to this Indenture or for any remedy
hereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless also the Holders of
at least 25% in aggregate principal amount of the outstanding Notes shall have
made written request to the Trustee, and provided indemnity reasonably
satisfactory to the Trustee, to institute such proceeding as Trustee, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of the outstanding Notes a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.  Such limitations do not apply, however, to a
suit instituted by a Holder of a Note directly (as opposed to through the
Trustee) for enforcement of payment of the principal of (and premium, if any)
or interest on such Note on or after the respective due dates expressed in such
Note.


 


SECTION 6.3 
Other Remedies.


 


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


 


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


 


SECTION 6.4 
Waiver of Past Defaults.


 


The Holders of a majority in aggregate
principal amount of the Notes then outstanding by written notice to the Trustee
may on behalf of the Holders of all of the Notes waive any existing Default or
Event of Default and its consequences under this Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Notes (other than as a result of an acceleration), which shall require the consent
of all of the Holders of the Notes then outstanding.


 


SECTION 6.5 
Control by Majority.


 


The Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust power conferred on it.  However, (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders or
that may involve the 


 


81

















 


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


 


SECTION 6.6 
Limitation on Suits.


 


A Holder may pursue a remedy with respect to
this Indenture or the Notes only if:


 


(a)           the
Holder gives to the Trustee written notice of a continuing Event of Default or
the Trustee receives such notice from the Company;


 


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


 


(c)           such
Holder or Holders offer and, if requested, provide to the Trustee indemnity or
security satisfactory to the Trustee against any loss, liability or expense;


 


(d)           the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of such indemnity or
security; and


 


(e)           during
such 60-day period the Holders of a majority in aggregate principal amount of
the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.


 


A Holder may not use this Indenture to
prejudice the rights of another Holder (it being understood that the Trustee
does not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders) or to obtain a preference
or priority over another Holder.


 


SECTION 6.7 
Rights of Holders of Notes to Receive Payment.


 


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


 


SECTION 6.8 
Collection Suit by Trustee.


 


If an Event of Default specified in Section 6.1(1) or
(2) hereof occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Issuer
for the whole amount of principal of, premium and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


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SECTION 6.9 
Trustee May File Proofs of Claim.


 


The Trustee is authorized to file such proofs
of claim and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for such
compensation as agreed in writing between the Company and the Trustee, and the
reasonable expenses, disbursements and advances of the Trustee and its agents,
including reasonable attorneys’ fees and expenses) and the Holders allowed in
any judicial proceedings relative to the Issuer (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other securities or property
payable or deliverable upon the conversion or exchange of the Notes or on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for such compensation as
agreed in writing between the Company and the Trustee and reasonable expenses,
disbursements and advances of the Trustee and its agents, including reasonable
attorneys’ fees and expenses, and any other amounts due the Trustee under Section 7.7
hereof.  To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


SECTION 6.10 
Priorities.


 


Any money collected by the Trustee pursuant
to this Article VI and any money or other property distributable in
respect of the Company’s obligations under this Indenture after an Event of
Default shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:


 


First:  to the Trustee (including any predecessor
Trustee), its agents and attorneys for amounts due under Section 7.7
hereof, including payment of all compensation agreed in writing between the
Company and the Trustee and reasonable expense and liabilities incurred, and
all advances made, by the Trustee and the costs and expenses of collection
(including in each case, reasonable attorneys’ fees and expenses);


 


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


 


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


 


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


 


SECTION 6.11 
Undertaking for Costs.


 


In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess 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 6.7 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.


 


ARTICLE VII




TRUSTEE


 


SECTION 7.1 
Duties and Responsibilities of Trustee.


 


(a)           Except during the continuance of an
Event of Default, the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.


 


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


 


(c)           No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:


 


(i)            this
Subsection (c) shall not be construed to limit the effect of Subsections (a) or
(d) of this Section 7.1;


 


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


 


(iii)          the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Notes of any series relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, 


 


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or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Notes of such series.


 


(d)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.


 


(e)           Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1.


 


SECTION 7.2 
Reliance on Documents, Opinions, etc.


 


Subject
to the provisions of Section 8.01,


 


(a)           the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note or other paper
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;


 


(b)           any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by Company Request or Company
Order (unless otherwise evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by a Vice President, the Secretary or
an Assistant Secretary of the Company;


 


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


 


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


 


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


 


(f)            the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note, or other paper or document, unless requested in writing to do
so by the Holders of not less than a majority in principal amount of such Notes
then outstanding; provided, however,
that the reasonable expenses of every such investigation shall be 


 


85

















 


paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and provided,
further, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require indemnity reasonably
satisfactory to it against such expenses or liabilities as a condition to so
proceeding;


 


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


 


(h)           the Trustee shall not be deemed to have notice or be
charged with knowledge of any Default or Event of Default unless written notice
of such Default or Event of Default from the Company or any Holder is received
by a Responsible Officer of the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture;


 


(i)            the rights, privileges, protections, immunities and
benefits given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act
hereunder;


 


(j)            the permissive rights of the Trustee
enumerated herein shall not be construed as duties;


 


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


 


(l)            the
Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder; and


 


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


 


SECTION 7.3 
Trustee and Agents May Own Notes.


 


The Trustee, any paying agent, or any agent
of the Trustee or the Company under this Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes of any series with the
same rights it would have if it were not Trustee or such agent and, subject to
Sections 7.13 and 7.11, if operative, may otherwise deal with the Company and
receive, collect, hold, and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.


 


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SECTION 7.4 
No Responsibility for Recitals, etc.


 


The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Notes of any series. The
Trustee represents that it is duly authorized to execute and deliver this
Indenture. Neither the Trustee nor an authenticating agent shall be accountable
for the use or application by the Company of any Notes or the proceeds of any
Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.


 


SECTION 7.5 
Notice of Defaults.


 


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


 


SECTION 7.6 
Reports by Trustee to Holders of the Notes.


 


(a)           The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the TIA at the times and in the manner provided
pursuant thereto. The interval between transmissions of reports to be
transmitted at intervals shall be twelve months or such shorter time required
by the TIA. If the TIA does not specify the date on which a report is due, the
such report shall be due on March 1 of each year following the first
issuance of Notes.


 


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


 


SECTION 7.7 
Compensation and Expenses of Trustee.


 


The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed in writing
between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust),
and the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
all persons not regularly in its employ and any amounts paid by the Trustee to
any authenticating agent) except any such expense, disbursement or advance as
may arise from its gross negligence or bad faith. The Company also covenants to
indemnify the Trustee, in an amount reasonably satisfactory to the Trustee,
for, and to hold it harmless against, any loss, damage, claims, liability or
expense incurred without gross negligence or willful misconduct on the part of
the Trustee and arising out


 


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of or in connection with
this Indenture, including the acceptance or administration of this trust, or
the performance of its duties hereunder, including the current payment of all
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 7.7 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Notes upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Notes.  In addition to, but
without prejudice to its other rights under this Indenture, when the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 6.1(8), the expenses (including the reasonable
charges and expenses of its counsel) and any and all compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.


 


“Trustee”
for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.


 


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


 


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


 


SECTION 7.8 
Resignation or Removal of Trustee and Successor Trustee.


 


(a)           Resignation or Removal of Trustee.


 


(i)           The Trustee may at any time resign
with respect to all Notes by giving written notice by first class mail of such
resignation to the Company and to the Holders of the Notes at their addresses
as they shall appear on the Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the mailing of such notice of
resignation to the Holders, the resigning Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of Notes who has been a bona fide Holder of a
Note or Notes for at least six months may, subject to the provisions of Section 6.11,
on behalf of such Holder and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint such
successor trustee.


 


(ii)          In case at any time any of the
following shall occur—


 


(1)           the
Trustee shall fail to comply with the provisions of Section 7.13 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Note or Notes for at least six months, unless


 


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the Trustee’s duty to resign is stayed in
accordance with the provisions of Section 310(b) of the TIA,


 


(2)           the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.10
and shall fail to resign after written request therefor by the Company or by
any such Holder of a Note or Notes, or


 


(3)           the
Trustee shall become incapable of acting with respect to the Notes, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;


 


then, in any such case, the Company may
remove the Trustee and appoint a successor trustee by Company Order, one copy
of which Company Order shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of Section 6.11,
any Holder who has been a bona fide Holder of a Note or Notes for at least six
months may, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove such Trustee and
appoint such successor trustee.


 


(iii)          The Holders of a majority in aggregate
principal amount of the outstanding Notes may at any time remove the Trustee by
delivering to the Trustee so removed, to the successor trustee so appointed and
to the Company the evidence provided for in Section 9.2 of the action in
that regard taken by the Holders, and nominate a successor Trustee which shall
be deemed appointed as successor Trustee unless within ten days after such
nomination the Company objects thereto, in which case the Trustee so removed or
any Holder of a Note or Notes, upon the terms and conditions and otherwise as
in subsection (i) of this Section 7.8(a)  provided, may petition
any court of competent jurisdiction for an appointment of a successor
Trustee.  If no successor Trustee shall
have been so appointed and have accepted an appointment within 60 days after
the giving of such notice of removal, the Trustee being removed may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.


 


(iv)          Any resignation or removal of the
Trustee and any appointment of a successor Trustee pursuant to any of the
provisions of this Section 7.8(a) shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 7.8(b).


 


(b)           Successor
Trustee.


 


Any successor Trustee appointed as provided in Section 7.8(a) shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor


 


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Trustee shall become effective, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as Trustee herein; nevertheless, on the written request
of the Company or of the successor Trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section 7.7,
execute and deliver an instrument transferring to such successor Trustee all
the rights and powers of the Trustee. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such Trustee, to secure
any amounts and shall be entitled to any indemnities then due it pursuant to
the provisions of Section 7.7.


 


No successor Trustee shall accept appointment
as provided in this Section 7.8(b) unless at the time of such
acceptance such successor Trustee shall be qualified under the provisions of Section 7.13
and eligible under the provisions of Section 7.10.


 


Upon acceptance of appointment by a successor
Trustee as provided in this Section 7.8(b), the Company shall mail notice
of the succession of such Trustee hereunder to the Holders of Notes at their
addresses as they shall appear on the Register. If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Company.


 


SECTION 7.9 
Successor Trustee by Merger, Etc.


 


Subject
to Sections 7.10 and 7.13, any Person into which the Trustee or any Agent may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of the Trustee or any Agent, as applicable, shall be
the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto.


 


In case at the time any successor to the
Trustee or any Agent shall succeed to the trusts created by this Indenture and
any of the Notes shall have been authenticated but not delivered, any such
successor to the Trustee or any Agent, as applicable, may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee or any Agent, as applicable, may
authenticate such Notes in the name of such successor Trustee or any Agent, as
applicable; and in all such cases such certificate shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have.


 


SECTION 7.10 
Eligibility of Trustee.


 


There shall at all times be a Trustee with
respect to each series of Notes hereunder which shall be a Person organized and
doing business under the laws of the United States or any state or territory
thereof or of the District of Columbia authorized under such laws to exercise
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal, state, territorial, or
District of Columbia authority and willing to act as 


 


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Trustee hereunder. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section 7.10, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee with respect to any series of Notes shall cease to be eligible in
accordance with the provisions of this Section 7.10, such Trustee shall
resign immediately in the manner and with the effect specified in Section 7.8.


 


This Indenture shall always have a Trustee
who satisfies the requirements of TIA §§ 310(a)(1), (2) and (5).  If this Indenture becomes qualified under the
TIA, the Trustee shall be subject to TIA § 310(b) including the provision
in § 310(b)(1); provided that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Issuer or the Guarantors are outstanding if the
requirements for exclusion set forth in TIA § 310(b)(1) are met.


 


SECTION 7.11 
Limitation on Rights of Trustee as a Creditor.


 


If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Notes), the Trustee shall
be subject to the provisions of the TIA regarding the collection of claims
against the Company (or any such other obligor).


 


SECTION 7.12 
Trustee’s Application for Instructions from the Issuer.


 


Any application by
the Trustee for written instructions from the Company may, at the option of the
Trustee, set forth in writing any action proposed to be taken or omitted by the
Trustee under this Indenture and the date on and/or after which such action
shall be taken or such omission shall be effective.  The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than three Business Days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.


 


SECTION 7.13 
Conflicting Interest of Trustee.


 


If the Trustee has or
shall acquire any conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such conflicting interest or resign in the manner
provided by, and subject to the provisions of, the TIA and this Indenture.


 


ARTICLE VIII




DEFEASANCE AND COVENANT DEFEASANCE


 


SECTION 8.1 
Option to Effect Defeasance or Covenant Defeasance.


 


The Issuer may, at the option of its Board of
Directors evidenced by a Board Resolution set forth in an Officers’
Certificate, at any time, elect to have either Section 8.2 or 8.3 hereof 


 


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applied to all outstanding
Notes of a series upon compliance with the conditions set forth below in this Article VIII.


 


SECTION 8.2 
Defeasance and Discharge.


 


Upon the Issuer’s exercise under Section 8.1
hereof of the option applicable to this Section 8.2, the Issuer shall,
subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be deemed to have been discharged from its obligations with respect to
all outstanding Notes of a series on the date the conditions set forth below
are satisfied (hereinafter, “defeasance”).  For this purpose, defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Debt represented
by the outstanding Notes of a series, which shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.5 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all
of its other obligations under such series of Notes and this Indenture (and the
Trustee, upon receipt of a Company Order and at the expense of the Issuer,
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 of a series to receive payments in
respect of the principal of, premium, if any, and interest, if any, on such
series of Notes when such payments are due from the trust referred to in Section 8.4(l);
(b) the Issuer’s obligations with respect to such series of Notes under
Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2 hereof; (c) the
rights, powers, trusts, benefits and immunities of the Trustee, including
without limitation, under Section 7.7, 8.5 and 8.7 hereof and the Issuer’s
obligations in connection therewith; (d) the Company’s rights pursuant to Section 3.7;
and (e) the provisions of this Article VIII.  Subject to compliance with this Article VIII,
the Issuer may exercise its option under this Section 8.2 notwithstanding
the prior exercise of its option under Section 8.3 hereof.


 


The Issuer and the Guarantors may terminate
the obligations under this Indenture when:


 


(1)           either:  (A) all Notes of a series theretofore
authenticated and delivered have been delivered to the Trustee for
cancellation, or (B) all such Notes of a series not theretofore delivered
to the Trustee for cancellation (i) have become due and payable or (ii) will
become due and payable within one year or are to be called for redemption
within one year (a “Discharge”)
under irrevocable 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, and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds and/or U.S. government obligations, in accordance with Section 8.4,
in an amount sufficient to pay and discharge the entire indebtedness on the
Notes of such series, not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest to the Stated
Maturity or date of redemption;


 


(2)           the
Issuer has paid or caused to be paid all other sums then due and payable under
this Indenture by the Issuer;


 


(3)           the
deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Issuer or any Guarantor is a party or
by which the Issuer or any Guarantor is bound;


 


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(4)           the
Issuer has delivered irrevocable written instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes of such
series at maturity or on the redemption date, as the case may be; and


 


(5)           the
Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel reasonably acceptable to the Trustee, each stating that all conditions
precedent under this Indenture relating to the Discharge have been complied
with.


 


SECTION 8.3 
Covenant Defeasance.


 


Upon the Issuer’s exercise under Section 8.1
hereof of the option applicable to this Section 8.3, the Issuer shall,
subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from its obligations under the covenants contained in
Sections 4.3, 4.4, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16,
4.17 and 4.18 and the limitation in Section 5.1(iii) hereof with
respect to the outstanding Notes of a series on and after the date the
conditions set forth below are satisfied (hereinafter, “covenant
defeasance”), and the Notes of such series shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such series of Notes
shall not be deemed outstanding for accounting purposes).  For this purpose, covenant defeasance means
that, with respect to the outstanding Notes of a series, the Issuer or any of
its Subsidiaries may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1 hereof, but,
except as specified above, the remainder of this Indenture and such series of
Notes shall be unaffected thereby.  In
addition, upon the Issuer’s exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(3) and (5) hereof
shall not constitute Events of Default.


 


SECTION 8.4 
Conditions to Defeasance or Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.2 or 8.3 hereof to the outstanding Notes
of a series:


 


In order to exercise either defeasance or
covenant defeasance:


 


(1)           the
Issuer must irrevocably have deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to the
benefits of the Holders of such Notes of a series:  (A) money in an amount, or (B) U.S.
government obligations, which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount or (C) a
combination thereof, in each case sufficient without reinvestment, in the
opinion of a nationally recognized firm of independent public 


 


93

















 


accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the entire
indebtedness in respect of the principal of and premium, if any, and interest
on such series of Notes on the Stated Maturity thereof or (if the Issuer has
made irrevocable arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name and at the expense of the Issuer)
the redemption date thereof, as the case may be, in accordance with the terms
of this Indenture and such series of Notes;


 


(2)           in
the case of defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since
the date of this Indenture, there has been a change in the applicable United
States federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Notes of a series will not recognize gain or loss for United States
federal income tax purposes as a result of the deposit, defeasance and
discharge to be effected with respect to such Notes and will be subject to
United States federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, defeasance and discharge
were not to occur;


 


(3)           in
the case of covenant defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such outstanding Notes
of a series will not recognize gain or loss for United States federal income
tax purposes as a result of the deposit and covenant defeasance to be effected
with respect to such Notes and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and covenant defeasance were not to occur;


 


(4)           no
Default or Event of Default with respect to the outstanding Notes of a series
shall have occurred and be continuing at the time of such deposit after giving
effect thereto (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 to
secure such borrowing);


 


(5)           such
defeasance or covenant defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the TIA (assuming all Notes of a
series are in default within the meaning of the TIA);


 


(6)           such
defeasance or covenant defeasance shall not result in a breach or violation of,
or constitute a default under, any material agreement or material instrument
(other than this Indenture) to which the Company is a party or by which the
Company is bound; and


 


(7)           the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to
such defeasance or covenant defeasance have been complied with.


 


In the event of a defeasance or a Discharge,
a Holder whose taxable year straddles the deposit of funds and the distribution
in redemption to such Holder would be subject to tax on any 


 


94

















 


gain (whether characterized
as capital gain or market discount) in the year of deposit rather than in the
year of receipt.  In connection with a
Discharge, in the event the Issuer becomes insolvent within the applicable
preference period after the date of deposit, monies held for the payment of the
Notes of a series may be part of the bankruptcy estate of the Issuer,
disbursement of such monies may be subject to the automatic stay of the
Bankruptcy Code and monies disbursed to Holders may be subject to disgorgement
in favor of the Issuer’s estate.  Similar
results may apply upon the insolvency of the Issuer during the applicable
preference period following the deposit of monies in connection with
defeasance.


 


Notwithstanding the foregoing, the Opinion of
Counsel required by clause (2) above with respect to a defeasance need not
to be delivered if all Notes of a series not therefor delivered to the Trustee
for cancellation (x) have become due and payable, or (y) will become
due and payable at Stated Maturity 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 8.5 
Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.


 


Subject to Section 8.6 hereof, all money
and non-callable U.S. government obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.5, the “Trustee”)
pursuant to Section 8.4 hereof in respect of the outstanding Notes of a
series shall be held in trust, shall not be invested, and applied by the
Trustee, in accordance with the provisions of such series of Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company or any Subsidiary acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.


 


The Issuer shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash or non-callable U.S. government obligations deposited pursuant to Section 8.4
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding Notes of a series.


 


Anything in this Article VIII to the
contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from
time to time upon the written request of the Issuer and be relieved of all
liability with respect to any money or non-callable U.S. government obligations
held by it as provided in Section 8.4 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.4(1) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.


 


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SECTION 8.6 
Repayment to Issuer.


 


Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of, premium, if any, or interest, if any, on any Note of a series and
remaining unclaimed for one year after such principal and premium, if any, or
interest has become due and payable shall, upon the receipt by the Trustee of a
Company Request directing it to act, be promptly paid to the Issuer or (if then
held by the Issuer) shall be discharged from such trust; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense of the Issuer cause
to be published once, in The New York Times
and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Issuer.


 


SECTION 8.7 
Reinstatement.


 


If the Trustee or Paying Agent is unable to
apply any United States dollars or non-callable U.S. government obligations in
accordance with Section 8.2 or 8.3 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Issuer under this Indenture and the applicable series of Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.2 or 8.3 hereof, as the
case may be; provided, however,
that, if the Issuer makes any payment of principal of, premium, if any, or
interest on any applicable series of Notes following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE IX




AMENDMENT, SUPPLEMENT AND WAIVER


 


SECTION 9.1 
Without Consent of Holders of the Notes.


 


Notwithstanding Section 9.2 of this
Indenture, without the consent of any Holders, the Issuer, the Guarantors and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to this Indenture and the Guarantees for any of the
following purposes:


 


(1)           to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company in this Indenture, the
Guarantees and the Notes;


 


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


 


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(3)           to
add additional Events of Default;


 


(4)           to
provide for Global Notes in addition to or in place of the definitive Notes;


 


(5)           to
evidence and provide for the acceptance of appointment under this Indenture by
a successor Trustee;


 


(6)           to
provide for or confirm the issuance of Additional Notes in accordance with the
terms of this Indenture;


 


(7)           to
add a Guarantor or to release a Guarantor in accordance with this Indenture;


 


(8)           to
cure any ambiguity, defect, omission, mistake or inconsistency;


 


(9)           to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such actions
pursuant to this clause (9) shall not adversely affect the interests of
the Holders in any material respect, as determined in good faith by the Board
of Directors of the Company;


 


(10)         to
conform the text of this Indenture or the Notes to any provision of the “Description
of Notes” in the Offering Memorandum to the extent that the Trustee has
received an Officers’ Certificate stating that such text constitutes an unintended
conflict with the description of the corresponding provision in the “Description
of Notes”; or


 


(11)         to
effect or maintain the qualification of this Indenture under the TIA.


 


SECTION 9.2 
With Consent of Holders of Notes.


 


With the consent of the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes, the
Issuer, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental to this Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or the Notes or of modifying in any manner the rights of the
Holders under this Indenture, including the definitions herein; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
outstanding Note affected thereby:


 


(1)           change
the Stated Maturity of any Note or of any installment of interest on any Note,
or reduce the amount payable in respect of the principal thereof or the rate of
interest thereon or any premium payable thereon, or reduce the amount that
would be due and payable on acceleration of the maturity thereof, or change the
place of payment where, or the coin or currency in which, any Note or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof, or change the date on which any Notes may be subject to redemption or
reduce the Redemption Price therefor,


 


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(2)           reduce
the percentage in aggregate principal amount of the outstanding Notes, the
consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture,


 


(3)           modify
the obligations of the Company to make Offers to Purchase upon a Change of
Control or from the Excess Proceeds of Asset Sales if such modification was
done after the occurrence of such Change of Control or such Asset Sale,


 


(4)           modify
or change any provision of this Indenture affecting the ranking of the Notes or
any Note Guarantee in a manner adverse to the Holders of the Notes,


 


(5)           modify
any of the provisions of this paragraph or provisions relating to waiver of
defaults or certain covenants, except to increase any such percentage required
for such actions or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby, or


 


(6)           release
any Guarantees required to be maintained under this Indenture (other than in
accordance with the terms of this Indenture).


 


The Holders of not less than a majority in
aggregate principal amount of the outstanding Notes may on behalf of the
Holders of all the Notes waive any past default under this Indenture and its
consequences, except a default:


 


(1)           in
any payment in respect of the principal of (or premium, if any) or interest on
any Notes (including any Note which is required to have been purchased pursuant
to an Offer to Purchase which has been made by the Issuer), or


 


(2)           in
respect of a covenant or provision hereof which under this Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Note affected,


 


each of which, for the avoidance of doubt, shall
require the consent of all the Holders of the Notes outstanding.


 


SECTION 9.3 
Compliance with Trust Indenture Act.


 


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


 


SECTION 9.4 
Revocation and Effect of Consents.


 


Until an amendment, supplement or waiver
becomes effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder and every subsequent Holder of that Note or portion of
the Note that evidences the same debt as the consenting Holder’s Note, even if
notation of the consent is not made on the Note.  However, any such Holder or subsequent 


 


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Holder may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective.  When an amendment, supplement or waiver
becomes effective in accordance with its terms, it thereafter binds every
Holder.


 


The Issuer may, but shall not be obligated
to, fix a record date for determining which Holders consent to such amendment,
supplement or waiver.  If the Issuer
fixes a record date, the record date shall be fixed at (i) the later of 30
days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished for the Trustee prior to such solicitation
pursuant to Section 2.5 hereof or (ii) such other date as the Issuer
shall designate.


 


SECTION 9.5 
Notation on or Exchange of Notes.


 


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


 


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


 


After any amendment, supplement or waiver
becomes effective, the Company shall mail to Holders a notice briefly
describing such amendment, supplement or waiver.  The failure to give such notice shall not
affect the validity and effect of such amendment, supplement or waiver.


 


SECTION 9.6 
Trustee to Sign Amendments, Etc.


 


The Trustee shall sign any amended or
supplemental indenture authorized pursuant to this Article IX if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
In signing or refusing to sign any amendment or supplemental indenture
the Trustee shall receive and (subject to Section 7.1 hereof) shall be
fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amendment or supplemental indenture
is authorized or permitted by this Indenture, that all conditions precedent
thereto have been met or waived, that such amendment or supplemental indenture
is not inconsistent herewith, and that it will be valid and binding upon the
Issuer and Guarantors in accordance with its terms.


 


ARTICLE X



NOTE GUARANTEES


 


SECTION 10.1 
Note Guarantees.


 


(a)           Each Guarantor hereby jointly and
severally, fully, unconditionally and irrevocably guarantees the Notes and
obligations of the Issuer hereunder and thereunder, and guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
on behalf of such Holder, that:  (i) the
principal of and premium, if any, and interest on 


 


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the Notes shall be paid in full when due, whether at
Stated Maturity, by acceleration, call for redemption or otherwise (including,
without limitation, the amount that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code),
together with interest on the overdue principal, if any, and interest on any
overdue interest, to the extent lawful, and all other obligations of the Issuer
to the Holders or the Trustee hereunder or thereunder shall be paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in
case of any extension of time of payment or renewal of any Notes or of any such
other obligations, the same shall be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. 
Each of the Note Guarantees shall be a guarantee of payment and not of
collection.


 


(b)           Each Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof (other than any waiver or consent expressly
releasing such Guarantor’s obligations hereunder), the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor (other than payment of the Notes).


 


(c)           Each Guarantor hereby waives the
benefits of diligence, presentment, demand for 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 or any other Person, protest,
notice and all demands whatsoever and covenants that the Note Guarantee of such
Guarantor shall not be discharged as to any Note except by complete performance
of the obligations contained in such Note and such Note Guarantee or as
provided for in this Indenture.  Each of
the Guarantors hereby agrees that, in the event of a default in payment of
principal or premium, if any, or interest on such Note, whether at its Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Note, subject to the terms and conditions set forth in this Indenture,
directly against each of the Guarantors to enforce such Guarantor’s Note
Guarantee without first proceeding against the Company or any other Guarantor.  Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Notes, to collect interest
on the Notes, or to enforce or exercise any other right or remedy with respect
to the Notes, such Guarantor shall pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.


 


(d)           If any Holder or the Trustee is
required by any court or otherwise to return to the Issuer or any Guarantor, or
any custodian, trustee, liquidator or other similar official acting in relation
to the Issuer or any Guarantor, any amount paid by any of them in respect of
the Notes and/or the Note Guarantee to the Trustee or such Holder, the Note
Guarantee of each of the Guarantors, to the extent theretofore discharged,
shall be reinstated in full force and effect. 
This paragraph (d) shall remain effective notwithstanding any
contrary action which may be taken by the Trustee or any Holder in reliance
upon such amount required to be returned. 
This paragraph (d) shall survive the termination of this Indenture.


 


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(e)           Each Guarantor further agrees that,
as between each Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Section 6.2 hereof for the purposes of the
Note Guarantee of such Guarantor, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Section 6.2 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of the Note Guarantee of such Guarantor.


 


SECTION 10.2 
Execution and Delivery of Note Guarantee.


 


To evidence its Note Guarantee set forth in Section 10.1,
each Guarantor agrees that a notation of such Note Guarantee substantially in
the form attached hereto as Exhibit B shall be endorsed on each
Note authenticated and delivered by the Trustee.  Such notation of Note Guarantee shall be
signed on behalf of such Guarantor by an officer of such Guarantor (or, if an
officer is not available, by a board member or director or another authorized
person) on behalf of such Guarantor by manual or facsimile signature.  In case the officer, board member or director
of such Guarantor who shall have signed such notation of Note Guarantee shall
cease to be such officer, board member or director before the Note on which
such Note Guarantee is endorsed shall have been authenticated and delivered by
the Trustee, such Note nevertheless may be authenticated and delivered as
though the Person who signed such notation of Note Guarantee had not ceased to
be such officer, board member or director.


 


Each Guarantor agrees that its Note Guarantee
set forth in Section 10.1 shall remain in full force and effect and apply
to all the Notes notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.  The delivery of
any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Note Guarantee set forth in this Indenture on
behalf of the Guarantors.


 


The failure to endorse a Note Guarantee shall
not affect or impair the validity thereof.


 


SECTION 10.3 
Severability.


 


In case any provision of any Note Guarantee
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 10.4 
Limitation of Guarantors’ Liability.


 


Each Guarantor and by its acceptance of
Notes, each Holder, confirms that it is the intention of all such parties that
the Note Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law relating to fraudulent transfer or conveyance.  To effectuate the foregoing intention, the
Trustee, the Holders and Guarantors hereby irrevocably agree that the
obligations of such Guarantor under its Note Guarantee shall be limited to the
maximum amount that will not, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other 


 


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Guarantor in respect of the
obligations of such other Guarantor under its Note Guarantee, result in the
obligations of such Guarantor under its Note Guarantee constituting a
fraudulent transfer or conveyance.


 


SECTION 10.5 
Guarantors May Consolidate, Etc., on Certain Terms.


 


Except as otherwise provided in Section 10.6,
a Guarantor may not sell or otherwise dispose of all or substantially all of
its assets, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person, unless:


 


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


 


(2)           either:


 


(A)          the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger assumes all the
obligations of that Guarantor under this Indenture pursuant to a supplemental
indenture satisfactory to the Trustee; or


 


(B)           the
Net Cash Proceeds of any such sale or other disposition of a Guarantor are
applied in accordance with the provisions of Section 4.10 hereof; and


 


(3)           the
Company delivers, or causes to be delivered, to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such sale, other
disposition, consolidation or merger complies with the requirements of this
Indenture.


 


In case of any such consolidation, merger,
sale or conveyance and, if applicable, upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Note Guarantee and the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.  All the Note
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued
in accordance with the terms of this Indenture as though all such Note
Guarantees had been issued at the date of the execution hereof.


 


Except as set forth in Articles IV and V
hereof, and notwithstanding clauses (1) and (2) above, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Issuer or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Issuer or
another Guarantor.


 


SECTION 10.6 
Releases.


 


In the event (1) all or substantially
all the assets or Capital Interests of a Guarantor are sold or otherwise
transferred, by way of merger, consolidation or otherwise, to a Person that is 


 


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not an Affiliate of the
Company in compliance with the terms of this Indenture; (2) of a sale or
other transfer or disposition of all of the Capital Interests in any Guarantor
to any Person that is not an Affiliate of the Company in compliance with the
terms of this Indenture; or (3) that a Guarantor shall no longer guarantee
(other than by virtue of its Note Guarantee) any Debt under the Credit
Agreement, or any other Debt for borrowed money of the Company or any of its
Restricted Subsidiaries of at least $25.0 million, then such Guarantor shall be
deemed automatically and unconditionally released and discharged of any
obligations under its Note Guarantee, as evidenced by a supplemental indenture
executed by the Company, the Guarantors (other than such released Guarantor)
and the Trustee, without any further action on the part of the Trustee or any
Holder; provided that in the case
of clauses (i) and (ii) above the Company delivers an Officers’
Certificate to the Trustee certifying that the net cash proceeds of such sale
or other disposition will be applied in accordance with Section 4.10; and provided further, that in the case of
clause (iii) above, in the event any such released Guarantor shall
thereafter Guarantee any Debt of the Company or a Restricted Subsidiary under
the Credit Agreement or any other Debt for borrowed money of the Company or any
of its Restricted Subsidiaries of at least $25.0 million (or if any released
Guarantee (the release of which is a permitted release under clause (iii) above)
is reinstated or renewed), then such released Guarantor shall guarantee the
Notes on the terms and conditions set forth in this Indenture, subject to
future release in accordance with this Section 10.6.


 


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


 


SECTION 10.7 
Release of a Guarantor.


 


Any Guarantor that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary in accordance with
the terms of this Indenture shall, at such time, be deemed automatically and
unconditionally released and discharged of its obligations under its Note
Guarantee without any further action on the part of the Trustee or any
Holder.  The Trustee shall deliver an
appropriate instrument evidencing such release upon receipt of the Company’s
written request for such release accompanied by an Officers’ Certificate
certifying as to the compliance with this Section 10.7.  Any Guarantor not so released shall remain
liable for the full amount of principal of and interest on the Notes as
provided in its Note Guarantee.


 


SECTION 10.8 
Benefits Acknowledged.


 


Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that its guarantee and waivers pursuant to
its Note Guarantee are knowingly made in contemplation of such benefits.


 


SECTION 10.9 
Future Guarantors.


 


Each Person that is required to become a
Guarantor after the Issue Date pursuant to Section 4.17 shall promptly
execute and deliver to the Trustee a supplemental indenture pursuant to which
such Person shall become a Guarantor. 
Concurrently with the execution and delivery of such supplemental
indenture, the Company shall deliver to the Trustee an Opinion of Counsel 


 


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and an Officers’ Certificate
to the effect that such supplemental indenture has been duly authorized,
executed and delivered by such Person and that, subject to applicable
bankruptcy, reorganization, fraudulent transfer, insolvency, moratorium and
other laws affecting creditors’ rights generally from time to time in effect
and general equitable principles and the qualification that certain provisions
may be unenforceable in whole or in part but such unenforceability will not
adversely effect the principal legal rights and benefits afforded thereby, the
Guarantee of such Guarantor is a legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms
and/or to such other matters as the Trustee may reasonably request.


 


ARTICLE XI



MISCELLANEOUS


 


SECTION 11.1 
Trust Indenture Act Controls.


 


If any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed
duties shall control.


 


SECTION 11.2 
Notices.


 


Any notice or communication by the Issuer,
any Guarantor or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing
next day delivery, to the others address:


 


If to the Issuer or any Guarantor:


 


Oshkosh Corporation


2307 Oregon Street


Oshkosh, Wisconsin  54902


Facsimile:  (920) 966-5955


Attention:  Executive Vice President, General Counsel and
Secretary


 


With a copy to:


 


Foley & Lardner LLP


777 East Wisconsin Avenue


Milwaukee, Wisconsin 53202

Facsimile:  (414) 297-4900

Attention:  Patrick G. Quick, Esq.


 


If to the Trustee:


 


Wells Fargo Bank, National
Association


MAC N9311-110


625 Marquette Avenue


Minneapolis, Minnesota 55479


 


 


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Facsimile:  (612) 667-9825


Attention:  Oshkosh Corporation Account Manager


 


The Issuer, the Guarantors and the Trustee,
by notice to the others, may designate additional or different addresses for
subsequent notices or communications.


 


All notices and communications (other than
those sent to Holders and the Trustee) shall be deemed to have been duly
given:  at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier promising next Business Day delivery.


 


Any notice or communication to a Holder shall
be sent electronically or mailed by first class mail or by overnight air
courier promising next Business Day delivery to its address shown on the
register kept by the Registrar.  Any
notice or communication shall also be so sent to any Person described in TIA §
313(c), to the extent required by the TIA. 
Failure to send a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.


 


If a notice or communication is mailed or
delivered in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it, except in the case of notices
or communications given to the Trustee, which shall be effective only upon
actual receipt.


 


If the Issuer mails or delivers a notice or
communication to Holders, it shall mail or deliver a copy to the Trustee and
each Agent at the same time.


 


SECTION 11.3 
Communication by Holders of Notes with Other Holders of Notes.


 


Holders may communicate pursuant to TIA § 312(b) with
other Holders with respect to their rights under this Indenture or the
Notes.  The Issuer, the Guarantor, the
Trustee, the Registrar and anyone else shall have the protection of TIA §
312(c).


 


SECTION 11.4 
Certificate and Opinion as to Conditions Precedent.


 


Upon any Company request to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate (which shall include the
statements set forth in Section 11.5 hereof) stating that all conditions
precedent, if any (including any covenant, compliance with which constitutes a
condition precedent), provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel (which shall include
the statements set forth in Section 11.5 hereof) stating that, in the
opinion of such counsel, all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.


 


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SECTION 11.5 
Statements Required in Certificate or Opinion.


 


Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a
statement that the Person making such certificate or opinion has read such
covenant or condition; (b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that,
in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.


 


SECTION 11.6 
Rules by Trustee and Agents.


 


The Trustee may make reasonable rules for
action by or at a meeting of Holders. 
The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.


 


SECTION 11.7 
No Personal Liability of Directors, Officers, Employees, Stockholders
and the Trustee.


 


No recourse under or upon any obligation,
covenant or agreement of this Indenture, any supplemental indenture, or of any
Note, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, organizer, stockholder, member, owner, officer,
director, manager or employee, as such, past, present or future, of the Company
or any Subsidiary or of any predecessor or successor Person, either directly or
through the Company, 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 this Indenture and the obligations issued hereunder
are solely obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, any incorporator,
organizer, stockholder, member, owner, officer, director, manager or employee,
as such, of the Company or of any predecessor or successor Person, or any of
them, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this Indenture,
or in any of the Notes or implied thereby; and that any and all such personal
liability, either at common law or in equity or by constitution or statute of,
and any and all such rights and claims against, every such incorporator,
organizer, stockholder, member, owner, officer, director, manager or employee,
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Notes or implied thereby, are hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Notes.


 


SECTION 11.8 
Governing Law; Waiver of Jury Trial.


 


THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES, IF
ANY.  


 


106

















 


EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


SECTION 11.9 
No Adverse Interpretation of Other Agreements.


 


This Indenture may not be used to interpret
any other indenture, loan or debt agreement of the Issuer or its Subsidiaries
or of any other Person.  Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


SECTION 11.10 
Successors.


 


All agreements of the Issuer and the
Guarantors in this Indenture and the Notes and the Note Guarantees, as
applicable, shall bind their respective successors and assigns.  All agreements of the Trustee in this
Indenture shall bind its successors and assigns.


 


SECTION 11.11 
Severability.


 


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


 


SECTION 11.12 
Counterpart Originals


 


The parties may sign any number of copies of
this Indenture.  Each signed copy shall
be an original, but all of them together represent the same agreement.  The exchange of copies of this Indenture and
of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this 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 11.13 
Table of Contents, Headings, Etc.


 


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


 


SECTION 11.14 
Qualification of Indenture.


 


The Issuer and the Guarantors shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys’ fees and expenses for the Issuer, the Guarantors and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this
Indenture and the Notes.  The Trustee
shall receive from the Issuer and the Guarantors any such Officer’s
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.


 


107

















 


SECTION 11.15 
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 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.


 


SECTION 11.16 
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.


 


 [Signatures
on following page]


 


108

















 


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


 


	
   

  	
  OSHKOSH
  CORPORATION,

  
	
   

  	
  as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David M. Sagehorn

  
	
   

  	
   

  	
  Name:
  David M. Sagehorn

  
	
   

  	
   

  	
  Title: Executive Vice President and Chief
  Financial Officer

  



 


 


[Signature Page to Indenture]


 

















 


	
   

  	
  ACCESS
  FINANCIAL SOLUTIONS, INC.

  
	
   

  	
  AUDUBON
  MANUFACTURING CORPORATION

  
	
   

  	
  CONCRETE
  EQUIPMENT COMPANY, INC.

  
	
   

  	
  FULTON
  INTERNATIONAL, INC.

  
	
   

  	
  IOWA
  CONTRACT FABRICATORS, INC.

  
	
   

  	
  IOWA
  MOLD TOOLING CO., INC.

  
	
   

  	
  JERRDAN
  CORPORATION

  
	
   

  	
  JLG
  EQUIPMENT SERVICES, INC.

  
	
   

  	
  JLG
  INDUSTRIES, INC.

  
	
   

  	
  JLG
  OMNIQUIP, INC.

  
	
   

  	
  KEWAUNEE
  FABRICATIONS, L.L.C.

  
	
   

  	
  McNEILUS
  COMPANIES, INC.

  
	
   

  	
  McNEILUS
  FINANCIAL, INC.

  
	
   

  	
  McNEILUS
  TRUCK AND MANUFACTURING, INC.

  
	
   

  	
  MEDTEC
  AMBULANCE CORPORATION

  
	
   

  	
  OSHKOSH
  SPECIALTY VEHICLES, INC.

  
	
   

  	
  PIERCE
  MANUFACTURING INC.

  
	
   

  	
  VIKING
  TRUCK & EQUIPMENT SALES, INC.,

  
	
   

  	
  as Guarantors

  



 


 


	
   

  	
  By:

  	
  /s/
  David M. Sagehorn

  
	
   

  	
   

  	
  Name:
  David M. Sagehorn

  
	
   

  	
   

  	
  Title: Executive Vice President and Chief
  Financial Officer

  



 


 


[Signature Page to Indenture]


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION,

  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lynn M. Steiner

  
	
   

  	
   

  	
  Name:
  Lynn M. Steiner

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


[Signature Page to Indenture]


 
















 


EXHIBIT
A


 


FORM OF


 


[81⁄4% SENIOR NOTES DUE 2017]


 


[81⁄2% SENIOR NOTES DUE 2020]


 


(Face of Note)

[81⁄4% SENIOR NOTES DUE 2017] [81⁄2% SENIOR NOTES DUE 2020]


 


[Global Notes Legend]


 


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


 


[Restricted Notes Legend]


 


[Insert the Restricted Notes Legend, if applicable,
pursuant to the provisions of the Indenture]


 


[Regulation S Temporary Global Note Legend]


 


[Insert the Regulation S Temporary Global Note
Legend from Section 2.6(e)(iv), if applicable, pursuant to the provisions
of the Indenture]


 


A-1

















 


OSHKOSH CORPORATION

[81⁄4% SENIOR NOTES DUE 2017]

[81⁄2% SENIOR NOTES DUE 2020]


 


	
  No.          

  	
   

  	
  144ACUSIP:
  [688225 AA9][688225 AC5]

  144A ISIN: [U688225AA90][US688225AC56]

   

  REG
  S CUSIP: [U68314 AA8][U68314 AB6]

  REG S ISIN: [USU68314AA82][USU68314AB65]

  



 


Oshkosh Corporation promises to pay to Cede &
Co., or registered assigns, the principal sum of [•] Dollars ($[•])
on [March 1, 2017][March 1, 2020].


 


Interest Payment Dates:  March 1 and September 1, beginning September 1,
2010


 


Record Dates: 
February 15 and August 15


 


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


 


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


 


A-2

















 


In WITNESS HEREOF, the Company has caused
this instrument to be duly executed.


 


 


	
   

  	
  Oshkosh
  Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Oshkosh
  Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This is one of the Notes of
the series designated herein issued under the within-mentioned Indenture.


 


Dated:  March 3, 2010


 


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-3

















 


(Reverse of Note)

[81⁄4% SENIOR NOTES DUE 2017]


[81⁄2% SENIOR NOTES DUE 2020]


 


OSHKOSH CORPORATION


 


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


 


(1)           Interest.


 


(a)           Oshkosh
Corporation, a Wisconsin corporation (“Oshkosh,” the “Issuer” or the “Company”),
promises to pay interest on the principal amount of this Note (the “Notes” or the “[2017 Notes][2020 Notes]”) at a fixed rate.  Oshkosh will pay interest in United States
dollars (except as otherwise provided herein) semiannually in arrears on March 1
and September 1 of each year, commencing on September 1, 2010 or, if
any such day is not a Business Day, on the next succeeding Business Day (each
an “Interest Payment Date”).  Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from and including March 3, 2010; provided
that if there is no existing Default or Event of Default in the payment of
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date (but after March 3,
2010), interest shall accrue from such next succeeding Interest Payment Date,
except in the case of the original issuance of the Notes, in which case
interest shall accrue from the date of authentication.  Oshkosh shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% per annum in
excess of the then applicable interest rate on the Notes to the extent lawful;
it shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.  Interest shall be computed on the basis of a
360-day year comprised of twelve 30-day months. 
The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.


 


(b)           Registration
Rights Agreement.  The Holder of this
Note is entitled to the benefits of a Registration Rights Agreement, dated as
of March 3, 2010, among the Issuer, the Guarantors party thereto and the
Initial Purchasers.(1)


 


(2)           Method
of Payment.  Oshkosh will pay
interest on the Notes (except defaulted interest) on the applicable Interest
Payment Date to the Persons who are registered Holders of the Notes at the
close of business on the February 15 and August 15 preceding the
Interest Payment Date, even if such Notes are cancelled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest.


 


The Notes shall be payable as to principal, premium
and interest at the office or agency of Oshkosh maintained for such purpose
within or without the City and State of New York, or, at


 






(1)           To be included only in the Initial Notes on the Issue Date
and any Additional Notes that bear the Restricted Note Legend.


 


A-4

















 


the option of Oshkosh, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that
payment by wire transfer of immediately available funds shall be required with
respect to principal of, premium, if any, and interest on, all Global Notes and
all other Notes the Holders of which shall have provided written wire transfer
instructions to Oshkosh and the Paying Agent. 
Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.


 


Any payments of principal of and interest on
this Note prior to Stated Maturity shall be binding upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon.  The amount due and payable at the maturity of
this Note shall be payable only upon presentation and surrender of this Note at
an office of the Trustee or the Trustee’s agent appointed for such purposes.


 


(3)           Paying
Agent and Registrar.  Initially,
Wells Fargo Bank, National Association, the Trustee under the Indenture, shall
act as Paying Agent and Registrar. 
Oshkosh may change any Paying Agent or Registrar without notice to any
Holder.  Oshkosh or any of its Restricted
Subsidiaries may act in any such capacity.


 


(4)           Indenture.  Oshkosh issued the Notes under an Indenture,
dated as of March 3, 2010 (the “Indenture”),
among Oshkosh, the Guarantors and the Trustee. 
The terms of the Notes include those stated in the Indenture and those
made a part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”).  To the extent the provisions of this Note are
inconsistent with the provisions of the Indenture, the Indenture shall
govern.  The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms.  The Notes
issued on the Issue Date are senior unsecured Obligations of Oshkosh limited to
$250,000,000 in aggregate principal amount, plus amounts, if any, sufficient to
pay premium and interest on outstanding Notes as set forth in Paragraph 2
hereof.  The Indenture permits the
issuance of Additional Notes subject to compliance with certain conditions.


 


The payment of principal and interest on the
Notes is unconditionally guaranteed on a senior unsecured basis by the
Guarantors.


 


(5)           Optional
Redemption.


 


[(i)         The
2017 Notes are subject to redemption, at the option of the Issuer, in whole or
from time to time in part, at any time on or after March 1, 2014 upon not
less than 30 nor more than 60 days’ written notice at the Redemption Prices
(expressed as percentages of the principal amount to be redeemed) set forth
below, plus accrued and unpaid interest, if any, to, but not including, the
redemption date (subject to the right of Holders of record on the relevant
regular record date to receive interest due on an interest payment date that is
on or prior to the redemption date), if redeemed during the 12-month period
beginning on March 1 of the years indicated below:


 


 


A-5

















 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
  2014

  	
   

  	
  104.125

  	
  %

  
	
  2015

  	
   

  	
  102.063

  	
  %

  
	
  2016
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(ii)           Prior
to March 1, 2013, the Issuer may from time to time, with the net cash
proceeds of one or more Qualified Equity Offerings, redeem up to 35% of the
aggregate principal amount of the then outstanding 2017 Notes (including
Additional 2017 Notes) at a Redemption Price equal to 108.250% of the principal
amount thereof, together with accrued and unpaid interest thereon, if any, to
the date of redemption (subject to the right of Holders of record on the
relevant regular record date to receive interest due on an interest payment
date that is on or prior to the redemption date); provided
that at least 65% of the principal amount of 2017 Notes then outstanding
(including Additional 2017 Notes) remains outstanding immediately after the
occurrence of any such redemption (excluding 2017 Notes held by the Company or
its Subsidiaries) and that any such redemption occurs within 90 days following
the closing of any such Qualified Equity Offering.]


 


[(i)         The
2020 Notes are subject to redemption, at the option of the Issuer, in whole or
from time to time in part, at any time on or after March 1, 2015 upon not
less than 30 nor more than 60 days’ written notice at the Redemption Prices
(expressed as percentages of the principal amount to be redeemed) set forth
below, plus accrued and unpaid interest, if any, to, but not including, the
redemption date (subject to the right of Holders of record on the relevant
regular record date to receive interest due on an interest payment date that is
on or prior to the redemption date), if redeemed during the 12-month period
beginning on March 1 of the years indicated below:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
  2015

  	
   

  	
  104.250

  	
  %

  
	
  2016

  	
   

  	
  102.833

  	
  %

  
	
  2017

  	
   

  	
  101.417

  	
  %

  
	
  2018
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(ii)           Prior
to March 1, 2013, the Issuer may from time to time, with the net cash
proceeds of one or more Qualified Equity Offerings, redeem up to 35% of the
aggregate principal amount of the then outstanding 2020 Notes (including
Additional 2020 Notes) at a Redemption Price equal to 108.500% of the principal
amount thereof, together with accrued and unpaid interest thereon, if any, to
the date of redemption (subject to the right of Holders of record on the relevant
regular record date to receive interest due on an interest payment date that is
on or prior to the redemption date); provided that
at least 65% of the principal amount of 2020 Notes then outstanding (including
Additional 2020 Notes) remains outstanding immediately after the occurrence of
any such redemption (excluding 2020 Notes held by the Company or its
Subsidiaries) and that any such redemption occurs within 90 days following the
closing of any such Qualified Equity Offering.]


 


A-6

















 


(6)          Mandatory Redemption.  Oshkosh shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


(7)           Repurchase
at Option of Holder.


 


(a)           Upon
the occurrence of a Change of Control, Oshkosh will make an Offer to Purchase
for all of the outstanding Notes at a purchase price in cash equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid interest thereon
to but not including the date of purchase. 
Within 60 days following any Change of Control, Oshkosh will mail or
deliver a notice to each Holder describing the transaction or transactions that
constitute the Change of Control setting forth the procedures governing the
Change of Control Offer required by the Indenture.


 


(b)           Upon
the occurrence of certain Asset Sales, Oshkosh may be required to offer to
purchase the Notes.


 


(c)           Holders
of the Notes that are the subject of an Offer to Purchase will receive notice
of an Offer to Purchase pursuant to an Asset Sale or a Change of Control from
Oshkosh prior to any related Purchase Date and may elect to have such Notes
purchased by completing the form titled “Option of Holder to Elect Purchase”
appearing below.


 


(8)           Notice
of Redemption.  Notice of redemption
shall be delivered at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address.  Notes in denominations larger
than $2,000 may be redeemed in part but only in a minimum amount of $2,000
principal amount (and integral multiples of $1,000 in excess thereof), unless
all of the Notes held by a Holder are to be redeemed.  On and after the redemption date, interest
ceases to accrue on the Notes or portions hereof called for redemption.


 


(9)           Denominations,
Transfer, Exchange.  The Notes are in
registered form without coupons in initial denominations of $2,000 and any
integral multiple of $1,000 in excess thereof. 
The transfer of the Notes may be registered and the Notes may be
exchanged as provided in the Indenture. 
The Registrar and the Trustee may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and Oshkosh may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture.  Oshkosh need not exchange or
register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.  Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before the mailing of a notice of
redemption of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.


 


(10)         Persons
Deemed Owners.  The registered holder
of a Note may be treated as its owner for all purposes.


 


(11)         Amendment,
Supplement and Waiver.  Subject to
the following paragraphs, the Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, including, without


 


A-7

















 


limitation, consents
obtained in connection with a purchase of or tender offer or exchange offer for
Notes, and any existing Default or Event of Default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes, including consents obtained in connection with a tender offer or
exchange offer for the Notes.


 


Without the consent of any Holders, Oshkosh,
the Guarantors and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental to the Indenture and the Note
Guarantees, if any, for any of the following purposes:


 


(1)           to
evidence the succession of another Person to Oshkosh and the assumption by any
such successor of the covenants of Oshkosh in the Indenture, the Guarantees and
the Notes;


 


(2)           to
add to the covenants of Oshkosh for the benefit of the Holders, or to surrender
any right or power herein conferred upon Oshkosh;


 


(3)           to
add additional Events of Default;


 


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


 


(5)           to
evidence and provide for the acceptance of appointment under the Indenture by a
successor Trustee;


 


(6)           to
provide for or confirm the issuance of Additional Notes in accordance with the
terms of the Indenture;


 


(7)           to
add a Guarantor or to release a Guarantor in accordance with the Indenture;


 


(8)           to
cure any ambiguity, defect, omission, mistake or inconsistency;


 


(9)           to
make any other provisions with respect to matters or questions arising under
the Indenture, provided that such actions
pursuant to this clause (9) shall not adversely affect the interests of
the Holders in any material respect, as determined in good faith by the Board
of Directors of Oshkosh;


 


(10)         to
conform the text of the Indenture or the Notes to any provision of the “Description
of Notes” in the Offering Memorandum to the extent that the Trustee has
received an Officers’ Certificate stating that such text constitutes an
unintended conflict with the description of the corresponding provision in the “Description
of Notes”; or


 


(11)         to
effect or maintain the qualification of the Indenture under the TIA.


 


With the consent of the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes,
Oshkosh, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental to the Indenture for the purpose of adding any
provisions to or changing


 


A-8

















 


in any manner or eliminating
any of the provisions of the Indenture or the Notes or of modifying in any
manner the rights of the Holders under the Indenture, including the definitions
therein; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each outstanding Note affected thereby:


 


(1)           change
the Stated Maturity of any Note or of any installment of interest on any Note,
or reduce the amount payable in respect of the principal thereof or the rate of
interest thereon or any premium payable thereon, or reduce the amount that
would be due and payable on acceleration of the maturity thereof, or change the
place of payment where, or the coin or currency in which, any Note or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof, or change the date on which any Notes may be subject to redemption or
reduce the Redemption Price therefor,


 


(2)           reduce
the percentage in aggregate principal amount of the outstanding Notes, the
consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture,


 


(3)           modify
the obligations of Oshkosh to make Offers to Purchase upon a Change of Control
or from the Excess Proceeds of Asset Sales if such modification was done after
the occurrence of such Change of Control or such Asset Sale,


 


(4)           modify
or change any provision of the Indenture affecting the ranking of the Notes or any
Note Guarantee in a manner adverse to the Holders of the Notes,


 


(5)           modify
any of the provisions of this paragraph or provisions relating to waiver of
defaults or certain covenants, except to increase any such percentage required
for such actions or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby, or


 


(6)           release
any Guarantees required to be maintained under the Indenture (other than in accordance
with the terms of the Indenture).


 


The Holders of not less than a majority in
aggregate principal amount of the outstanding Notes may on behalf of the
Holders of all the Notes waive any past Default under the Indenture and its
consequences, except a Default:


 


(1)           in
any payment in respect of the principal of (or premium, if any) or interest on
any Notes (including any Note which is required to have been purchased pursuant
to an Offer to Purchase which has been made by the Issuer), or


 


(2)           in
respect of a covenant or provision hereof which under the Indenture cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected.


 


A-9
















 


(12)         Defaults
and Remedies.


 


Each of the following constitutes an “Event of Default”:


 


(1)           default
in the payment in respect of the principal of (or premium, if any, on) any Note
when due and payable (whether at Stated Maturity or upon repurchase, acceleration,
optional redemption or otherwise);


 


(2)           default
in the payment of any interest upon any Note when it becomes due and payable,
and continuance of such default for a period of 30 days;


 


(3)           failure
to perform or comply with Section 4.3 of the Indenture and continuance of
such failure to perform or comply for a period of 120 days after written notice
thereof has been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding
Notes;


 


(4)           except
as permitted by or in accordance with the terms of this Indenture, any Note
Guarantee shall for any reason cease to be, or it shall be asserted by any
Guarantor or the Company not to be, in full force and effect and enforceable in
accordance with its terms;


 


(5)           default
in the performance, or breach, of any covenant or agreement of the Company or
any Guarantor in the Indenture (other than a covenant or agreement a default in
whose performance or whose breach is specifically dealt with in clauses (1), (2) (3) or
(4) above), and continuance of such default or breach for a period of 60
days after written notice thereof has been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the outstanding Notes;


 


(6)           a
default or defaults under any bonds, debentures, notes or other evidences of
Debt (other than the Notes) by the Company or any Restricted Subsidiary having,
individually or in the aggregate, a principal or similar amount outstanding of
at least the greater of $50.0 million and 5% of the Consolidated Net Tangible
Assets of the Company and its Restricted Subsidiaries, whether such Debt now
exists or shall hereafter be created, which default or defaults shall have
resulted in the acceleration of the maturity of such Debt prior to its express
maturity or (except in the case of any Debt owing to the Company by any
Restricted Subsidiary or any Debt by any Restricted Subsidiary owing to the
Company) shall constitute a failure to pay an amount of such Debt equal to at
least the greater of $50.0 million and 5% of the Consolidated Net Tangible
Assets of the Company and its Restricted Subsidiaries when due and payable
after the expiration of any applicable grace period with respect thereto;


 


(7)           the
entry against the Company or any Restricted Subsidiary of a final judgment or
final judgments for the payment of money in an aggregate amount in excess of
the greater of $50.0 million and 5% of the Consolidated Net Tangible Assets of
the Company and its Restricted Subsidiaries (net of amounts covered by
insurance for which the issuer thereof has been notified of such claim and has
not challenged such coverage),


 


A-10

















 


by a court or courts of
competent jurisdiction, which judgments remain undischarged, unwaived,
unstayed, unbonded or unsatisfied for a period of 60 consecutive days; or


 


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


 


(a)           commences
a voluntary case,


 


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


 


(c)           consents
to the appointment of a custodian of it or for all or substantially all of its
property,


 


(d)           makes
a general assignment for the benefit of its creditors, or


 


(e)           generally
is not paying its debts as they become due; or


 


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


 


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


 


(b)           appoints
a custodian of the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company or
any of its Restricted Subsidiaries; or


 


(c)           orders the liquidation of the Company
or any Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary


 


and the order or decree
remains unstayed and in effect for 60 consecutive days.


 


If an Event of Default (other than an Event
of Default specified in clause (8) above with respect to Oshkosh) occurs
and is continuing, then and in every such case the Trustee or the Holders of
not less than 25% in aggregate principal amount of the outstanding Notes may
declare the principal of the Notes and any accrued interest on the Notes to be
due and payable immediately by a notice in writing to Oshkosh (and to the
Trustee if given by Holders); provided, however, that after such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of the outstanding Notes may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
nonpayment of accelerated principal of or interest on the Notes, have been
cured or waived as provided in the Indenture.


 


A-11

















 


In the event of a declaration of acceleration
of the Notes solely because an Event of Default described in clause (6) above
has occurred and is continuing, the declaration of acceleration of the Notes
shall be automatically rescinded and annulled if the event of default or
payment default triggering such Event of Default pursuant to clause (6) shall
be remedied or cured by Oshkosh or a Restricted Subsidiary of Oshkosh or waived
by the holders of the relevant Debt within 20 Business Days after the
declaration of acceleration with respect thereto and if the rescission and annulment
of the acceleration of the Notes would not conflict with any judgment or decree
of a court of competent jurisdiction obtained by the Trustee for the payment of
amounts due on the Notes.


 


If an Event of Default specified in clause (8) above
occurs with respect to Oshkosh, the principal of and any accrued interest on
the Notes then outstanding shall ipso facto become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.  For further information as to waiver of
defaults, see Article IX of the Indenture. 
The Trustee may withhold from Holders notice of any Default (except
Default in payment of principal of, premium, if any, and interest) if the
Trustee determines that withholding notice is in the interest of the Holders to
do so.


 


(13)         Trustee
Dealings with Oshkosh.  The Trustee,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for Oshkosh, the Guarantors or their respective
Affiliates, and may otherwise deal with Oshkosh, the Guarantors or their
respective Affiliates, as if it were not the Trustee.


 


(14)         No
Recourse Against Others.  No
director, officer, employee, stockholder, general or limited partner or
incorporator, past, present or future, of Oshkosh, the Guarantors or any of
their respective Subsidiaries, as such or in such capacity, shall have any
personal liability for any obligations of the Issuer under the Notes, any
Guarantee or the Indenture by reason of his, her or its status as such director,
officer, employee, stockholder, general or limited partner or incorporator.


 


No recourse may, to the full extent permitted
by applicable law, be taken, directly or indirectly, with respect to the
obligations of Oshkosh or the Guarantors on the Notes or under the Indenture or
any related documents, any certificate or other writing delivered in connection
therewith, against (i) the Trustee in its individual capacity, or (ii) any
partner, owner, beneficiary, agent, officer, director, employee, agent, successor
or assign of the Trustee, each in its individual capacity, or (iii) any
holder of equity in the Trustee.


 


Each Holder of Notes by accepting a Note
waives and releases all such liability described in the two preceding
paragraphs.  The waiver and release are
part of the consideration for the issuance of the Notes.


 


(15)         Authentication.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


(16)         Abbreviations.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),


 


A-12

















 


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)         CUSIP,
ISIN Numbers.  Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and
the Trustee may use CUSIP, ISIN or other similar numbers in notices of
redemption as a convenience to the Holders. 
No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.


 


(18)         THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE NOTE GUARANTEES, IF ANY.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE
INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.


 


Oshkosh shall furnish to any Holder upon
written request and without charge a copy of the Indenture.  Requests may be made to:


 


Oshkosh Corporation


2307 Oregon Street


Oshkosh, Wisconsin  54902


Facsimile:  (920) 966-5955


Attention:  Executive Vice President, General Counsel and
Secretary


 


A-13

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form
below:  (I) or (we) assign and
transfer this Note to


 


	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

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

  	
   

  



 


and irrevocably appoint                                                                                                                 


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


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on

  
	
   

  	
   

  	
  the
  face of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature guarantee:

  	
   

  	
   

  	
   

  
						



 


(Signature must be guaranteed by a
participant in a recognized signature guarantee medallion program)


 


A-14

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note
purchased by Oshkosh Corporation pursuant to Section 4.10 (Asset Sale) or
4.14 (Change of Control) of the Indenture, check the box below:


 


	
   

  	
   

  	
  o
  Section 4.10

  	
   

  	
   

  	
   

  	
  o
  Section 4.14

  



 


If you want to elect to have only part of the
Note purchased by Oshkosh Corporation pursuant to Section 4.10 or 4.14 of
the Indenture, state the amount you elect to have purchased:


 


$                                           


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tax Identification Number:                       

  
	
   

  	
   

  	
   

  
	
  Signature guarantee:

  	
   

  	
   

  	
   

  
						



 


(Signature must be guaranteed by a participant
in a recognized signature guarantee medallion program)


 


A-15

















 


CERTIFICATE TO BE DELIVERED UPON

EXCHANGE OR REGISTRATION

OF RESTRICTED NOTES


 


Oshkosh
Corporation


2307
Oregon Street


Oshkosh,
Wisconsin  54902


Facsimile:  (920) 966-5955


Attention:  Executive Vice President, General Counsel and
Secretary


 


Wells
Fargo Bank, N.A.


Corporate
Trust Operations


MAC
N9303-121


608
- 2nd Avenue South


Minneapolis,
MN 55479


Facsimile:  (866) 969-1290


Attention:  DAPS Reorg


 


	
  Re:

  	
   

  	
  Oshkosh
  Corporation [81⁄4% Senior Notes due 2017][81⁄2% Senior Notes due 2020]

  
	
   

  	
   

  	
  CUSIP #

  	
   

  



 


Reference is hereby made to that certain
Indenture dated March 3, 2010 (the “Indenture”)
among Oshkosh Corporation (“Oshkosh”), the Guarantors party thereto and Wells
Fargo Bank, National Association, as trustee (the “Trustee”).  Capitalized terms used but not defined herein
shall have the meanings set forth in the Indenture.


 


This certificate relates to
$              
principal amount of Notes held in (check applicable space)
         book-entry or
           definitive form by
the undersigned.


 


The undersigned
                                  
(transferor) (check one box below):


 


hereby requests the
Registrar to deliver in exchange for its beneficial interest in the Global Note
held by the Depositary a Note or Notes in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Note (or the portion thereof indicated
above), in accordance with Section 2.6 of the Indenture;


 


hereby requests the Trustee
to exchange or register the transfer of a Note or Notes to
                
(transferee).


 


In connection with any transfer of any of the
Notes evidenced by this certificate occurring prior to the expiration of the
periods referred to in Rule 144(d) under the Securities Act of 1933,
as amended, the undersigned confirms that such Notes are being transferred in
accordance with its terms:


 


A-16

















 


CHECK ONE BOX BELOW:


 


(1)           to
Oshkosh or any of its subsidiaries, subject to Section 2.6 of the
Indenture; or


 


(2)           inside
the United States to a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act of 1933, as amended) that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is
given that such transfer is being made in reliance on Rule 144A under the
Securities Act of 1933, as amended, in each case pursuant to and in compliance
with Rule 144A thereunder; or


 


(3)           outside
the United States in an offshore transaction within the meaning of Regulation S
under the Securities Act of 1933, as amended, in compliance with Rule 904
thereunder; or


 


(4)           pursuant
to an effective registration statement under the Securities Act of 1933, as
amended.


 


A-17

















 


Unless one of the boxes is checked, the
Registrar will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered holder thereof.


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
  (Signature must be
  guaranteed by a participant

  	
   

  
	
  in a recognized signature
  guarantee medallion program)

  	
   

  
				



 


TO BE COMPLETED BY PURCHASER IF (2) ABOVE
IS CHECKED.


 


The undersigned represents and warrants that
it is purchasing this Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a “qualified institutional buyer” within the meaning of Rule 144A under
the Securities Act of 1933, as amended (“Rule 144A”),
and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is relying
upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.


 


	
   

  	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  NOTICE: To be executed by
  an executive officer

  	
   

  	
   

  
				



 


A-18

















 


SCHEDULE A


 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE


 


The following exchanges of a part of this
Global Note for other [81⁄4][81⁄2]% Senior Notes have been made:


 


	
  Date
  of Exchange

  	
   

  	
  Amount of 

  Decrease in 

  Principal Amount 

  of this Global Note

  	
   

  	
  Amount of 

  Increase in 

  Principal Amount 

  of this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  Following Such

  Decrease (or

  Increase)

  	
   

  	
  Signature of

  Authorized

  Signatory of Trustee

  or Note Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-19
















 


EXHIBIT B


 


FORM OF NOTATIONAL GUARANTEE


 


Each Guarantor listed below (hereinafter
referred to as the “Guarantor,”
which term includes any successors or assigns under that certain Indenture,
dated as of March 3, 2010, by and among Oshkosh Corporation (“Oshkosh”), the Guarantors party thereto and the Trustee (as
amended and supplemented from time to time, the “Indenture”)
and any additional Guarantors) has guaranteed the [81⁄4% Senior Notes due
2017][81⁄2% Senior Notes due 2020] (the “Notes”) and the
obligations of Oshkosh under the Indenture, which include (i) the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes of Oshkosh, whether at stated maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal and premium, if
any, and (to the extent permitted by law) interest on any interest, if any, on
the Notes, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms set
forth in Article X of the Indenture, (ii) in case of any extension of
time of payment or renewal of any Notes or any such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise, and (iii) the payment of any and all costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee in enforcing any
rights under this Note Guarantee or the Indenture.


 


The obligations of each Guarantor to the
Holders and to the Trustee pursuant to this Note Guarantee and the Indenture
are expressly set forth in Article X of the Indenture and reference is
hereby made to such Indenture for the precise terms of this Note Guarantee.


 


No stockholder, employee, officer, director
or incorporator, as such, past, present or future of each Guarantor shall have
any liability under this Note Guarantee by reason of his, her or its status as
such stockholder, employee, officer, director or incorporator.


 


This is a continuing Note Guarantee and shall
remain in full force and effect and shall be binding upon each Guarantor and
its successors and assigns until full and final payment of all of Oshkosh’s
obligations under the Notes and Indenture or until released in accordance with
the Indenture and shall inure to the benefit of the successors and assigns of
the Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.  This is a Note Guarantee of payment and not
of collection.


 


This Note Guarantee shall not be valid or
obligatory for any purpose until the certificate of authentication on the Note
upon which this Note Guarantee is noted shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.  The Obligations of each Guarantor under its
Note Guarantee shall be limited to the extent necessary to insure that it does
not constitute a fraudulent conveyance or fraudulent transfer under applicable
law.


 


B-1

















 


THE TERMS OF ARTICLE X OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.


 


Capitalized terms used herein have the same
meanings given in the Indenture unless otherwise indicated.


 


	
  Dated
  as of
                  

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2

















 


EXHIBIT C


 


[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]


 


Oshkosh
Corporation


2307
Oregon Street


Oshkosh,
Wisconsin  54902


Facsimile:  (920) 966-5955


Attention:  Executive Vice President, General Counsel and
Secretary


 


Wells
Fargo Bank, N.A.


Corporate
Trust Operations


MAC
N9303-121


608
- 2nd Avenue South


Minneapolis,
MN 55479


Facsimile:  (866) 969-1290


Attention:  DAPS Reorg


 


Re:          Oshkosh Corporation [81⁄4% Senior
Notes due 2017][81⁄2% Senior Notes due 2020] (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of
$              
aggregate principal amount at maturity of the Notes, we hereby certify that
such transfer is being effected pursuant to and in accordance with Rule 144A
(“Rule 144A”) under the United States
Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, we hereby further certify that the Notes are being
transferred to a person that we reasonably believe is purchasing the Notes for
its own account, or for one or more accounts with respect to which such person
exercises sole investment discretion, and such person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Notes are being
transferred in compliance with any applicable blue sky securities laws of any
state of the United States.


 


You and Oshkosh Corporation are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signature

  



 


C-1

















 


	
   

  	
  Signature
  guarantee:

  	
   

  



 


(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)


 


C-2

















 


EXHIBIT D


 


[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS

PURSUANT TO REGULATION S]


 


Oshkosh
Corporation


2307
Oregon Street


Oshkosh,
Wisconsin  54902


Facsimile:  (920) 966-5955


Attention:  Executive Vice President, General Counsel and
Secretary


 


Wells
Fargo Bank, N.A.


Corporate
Trust Operations


MAC
N9303-121


608
- 2nd Avenue South


Minneapolis,
MN 55479


Facsimile:  (866) 969-1290


Attention:  DAPS Reorg


 


Re:          Oshkosh Corporation [81⁄4% Senior
Notes due 2017][81⁄2% Senior Notes due 2020] (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of
$                
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, we represent that:


 


(1)           the
offer of the Notes was not made to a person in the United States;


 


(2)           either
(a) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States or (b) the transaction
was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows that
the transaction has been pre-arranged with a buyer in the United States;


 


(3)           no
directed selling efforts have been made in the United States in contravention
of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and


 


(4)           the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.


 


In addition, if the sale is made during a
restricted period and the provisions of Rule 903(b) or Rule 904(b) of
Regulation S are applicable thereto, we confirm that such sale has been 


 


D-1

















 


made in accordance with the
applicable provisions of Rule 903(b) or Rule 904(b), as the case
may be.


 


Oshkosh Corporation and you are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby.  Terms used in this certificate
have the meanings set forth in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signature

  
	
   

  	
   

  
	
  Signature guarantee:

  	
   

  	
   

  	
   

  
					



 


(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)


 


D-2