Exhibit 10.1


 


SPX CORPORATION,


 


as Issuer


 


and


 


ENGINEERING ANALYSIS ASSOCIATES, INC.


FLAIR CORPORATION


KAYEX CHINA HOLDINGS, INC.


LDS TEST AND MEASUREMENT LLC


THE MARLEY COMPANY LLC


MARLEY ENGINEERED PRODUCTS LLC


THE MARLEY-WYLAIN COMPANY


MCT SERVICES LLC


P.S.D., INC.


SPX COOLING TECHNOLOGIES, INC.


TCI INTERNATIONAL, INC.


VALLEY FORGE TECHNICAL INFORMATION SERVICES, INC.


WAUKESHA ELECTRIC SYSTEMS, INC.


XCEL ERECTORS, INC.


 


as


 


Initial Subsidiary Guarantors


 


and


 


U.S. BANK NATIONAL ASSOCIATION


 


as Trustee


 






 


Indenture


 


Dated as of December 13, 2007


 






 


7 5/8% Senior Notes due 2014


 

















 


CROSS-REFERENCE
TABLE


 


	
  TIA Sections

  	
   

  	
  Indenture Sections

  
	
   

  	
   

  	
   

  	
   

  
	
  § 310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.03; 7.08

  
	
  § 311

  	
  (a)

  	
   

  	
  7.03

  
	
   

  	
  (b)

  	
   

  	
  7.03

  
	
  § 312

  	
  (a)

  	
   

  	
  2.04

  
	
   

  	
  (b)

  	
   

  	
  11.02

  
	
   

  	
  (c)

  	
   

  	
  11.02

  
	
  § 313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.05; 7.06; 11.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  § 314

  	
  (a)

  	
   

  	
  4.11; 11.02

  
	
   

  	
  (a)(4)

  	
   

  	
  4.10; 11.02

  
	
   

  	
  (c)(1)

  	
   

  	
  11.03

  
	
   

  	
  (c)(2)

  	
   

  	
  11.03

  
	
   

  	
  (e)

  	
   

  	
  4.10; 11.04

  
	
  § 315

  	
  (a)

  	
   

  	
  7.02

  
	
   

  	
  (b)

  	
   

  	
  7.05; 11.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.02

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  § 316

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  9.03

  
	
  § 317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.05

  
	
  § 318

  	
  (a)

  	
   

  	
  11.01

  
	
   

  	
  (c)

  	
   

  	
  11.01

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE ONE

  	
   

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.02.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 1.03.

  	
  Rules of Construction

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02.

  	
  Restrictive Legends

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 2.03.

  	
  Execution, Authentication and Denominations

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 2.04.

  	
  Registrar and Paying Agent

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 2.05.

  	
  Paying Agent to Hold Money in Trust

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 2.06.

  	
  Transfer and Exchange

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 2.07.

  	
  Book-Entry Provisions for Global Notes

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 2.08.

  	
  Special Transfer Provisions

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 2.09.

  	
  Replacement Notes

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 2.10.

  	
  Outstanding Notes

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 2.11.

  	
  Temporary Notes

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 2.12.

  	
  Cancellation

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 2.13.

  	
  CUSIP Numbers

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 2.14.

  	
  Defaulted Interest

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 2.15.

  	
  Issuance of Additional Notes

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  	
   

  
	
  REDEMPTION

  	
   

  



 


i

















 


	
  SECTION 3.01.

  	
  Right of Redemption

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02.

  	
  Notices to Trustee

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03.

  	
  Selection of Notes to Be Redeemed

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04.

  	
  Notice of Redemption

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 3.05.

  	
  Effect of Notice of Redemption

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 3.06.

  	
  Deposit of Redemption Price

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 3.07.

  	
  Payment of Notes Called for Redemption

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 3.08.

  	
  Notes Redeemed in Part

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Notes

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 4.02.

  	
  Maintenance of Office or Agency

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 4.03.

  	
  Limitation on Liens

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 4.04.

  	
  Limitation on Sale-Leaseback Transactions

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 4.05.

  	
  Repurchase of Notes upon a Change of Control

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 4.06.

  	
  Existence

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 4.07.

  	
  Payment of Taxes and Other Claims

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 4.08.

  	
  Maintenance of Properties and Insurance

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 4.09.

  	
  Notice of Defaults

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 4.10.

  	
  Compliance Certificates

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 4.11.

  	
  Commission Reports and Reports to Holders

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 4.12.

  	
  Waiver of Stay, Extension or Usury Laws

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 4.13.

  	
  Issuance of Subsidiary Guarantees

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 4.14.

  	
  Additional Interest Notice

  	
  36

  



 


ii

















 


	
  ARTICLE FIVE

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  When Company or Guarantors May Merge, Etc.

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION 5.02.

  	
  Successor Substituted

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  	
   

  
	
  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 6.02.

  	
  Acceleration

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 6.03.

  	
  Other Remedies

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 6.04.

  	
  Waiver of Past Defaults

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 6.05.

  	
  Control by Majority

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 6.06.

  	
  Limitation on Suits

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 6.07.

  	
  Rights of Holders to Receive Payment

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 6.08.

  	
  Collection Suit by Trustee

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 6.09.

  	
  Trustee May File Proofs of Claim

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 6.10.

  	
  Priorities

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11.

  	
  Undertaking for Costs

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 6.12.

  	
  Restoration of Rights and Remedies

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 6.13.

  	
  Rights and Remedies Cumulative

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 6.14.

  	
  Delay or Omission Not Waiver

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  General

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 7.02.

  	
  Certain Rights of Trustee

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 7.03.

  	
  Individual Rights of Trustee

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 7.04.

  	
  Trustee’s Disclaimer

  	
  45

  



 


iii

















 


	
  SECTION 7.05.

  	
  Notice of Default

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 7.06.

  	
  Reports by Trustee to Holders

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 7.07.

  	
  Compensation and Indemnity

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 7.08.

  	
  Replacement of Trustee

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 7.09.

  	
  Successor Trustee by Merger, Etc.

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 7.10.

  	
  Eligibility

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 7.11.

  	
  Money Held in Trust

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  	
   

  
	
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Termination of Company’s Obligations

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 8.02.

  	
  Defeasance and Discharge of Indenture

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 8.03.

  	
  Defeasance of Certain Obligations

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 8.04.

  	
  Application of Trust Money

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 8.05.

  	
  Repayment to Company

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 8.06.

  	
  Reinstatement

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  	
   

  
	
  AMENDMENTS, SUPPLEMENTS
  AND WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without Consent of Holders

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 9.02.

  	
  With Consent of Holders

  	
  55

  
	
   

  	
   

  	
   

  
	
  SECTION 9.03.

  	
  Revocation and Effect of Consent

  	
  56

  
	
   

  	
   

  	
   

  
	
  SECTION 9.04.

  	
  Notation on or Exchange of Notes

  	
  56

  
	
   

  	
   

  	
   

  
	
  SECTION 9.05.

  	
  Trustee to Sign Amendments, Etc.

  	
  56

  
	
   

  	
   

  	
   

  
	
  SECTION 9.06.

  	
  Conformity with Trust Indenture Act

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  	
   

  
	
  GUARANTEE OF NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Note Guarantee

  	
  57

  



 


iv

















 


	
  SECTION 10.02.

  	
  Obligations Unconditional

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION 10.03.

  	
  Release of Note Guarantees

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION 10.04.

  	
  Notice to Trustee

  	
  60

  
	
   

  	
   

  	
   

  
	
  SECTION 10.05.

  	
  This Article Not to Prevent Events of Default

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Trust Indenture Act of 1939

  	
  60

  
	
   

  	
   

  	
   

  
	
  SECTION 11.02.

  	
  Notices

  	
  60

  
	
   

  	
   

  	
   

  
	
  SECTION 11.03.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 11.04.

  	
  Statements Required in Certificate or Opinion

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 11.05.

  	
  Rules by Trustee, Paying Agent or Registrar

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 11.06.

  	
  Payment Date Other Than a Business Day

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 11.07.

  	
  Governing Law

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.08.

  	
  No Adverse Interpretation of Other Agreements

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.09.

  	
  No Recourse Against Others

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.10.

  	
  Successors

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.11.

  	
  Duplicate Originals

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.12.

  	
  Separability

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.13.

  	
  Table of Contents, Headings, Etc.

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 11.14.

  	
  Force Majeure

  	
  63

  



 


v

















 


	
  EXHIBIT A

  	
  Form of Note

  	
  A-1

  
	
  EXHIBIT B

  	
  Form of Certificate to Be Delivered in Connection
  with Transfers of Temporary Regulation S Global Notes

  	
  B-1

  
	
  EXHIBIT C

  	
  Form of Certificate to Be Delivered in Connection
  with Transfers Pursuant to Non-QIB Accredited Investors

  	
  C-1

  
	
  EXHIBIT D

  	
  Form of Certificate to Be Delivered in Connection
  with Transfers Pursuant to Regulation S

  	
  D-1

  



 


vi

















 


INDENTURE, dated as of December 13, 2007 between
SPX CORPORATION, a Delaware corporation (the “Company”), the Initial
Subsidiary Guarantors (as defined herein), and U.S. Bank National Association,
a national banking association, as trustee (the “Trustee”).


 


RECITALS


 


The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance initially of up to
$500,000,000 aggregate principal amount of the Company’s 7 5/8% Senior Notes
due 2014 (the “Notes”) issuable as provided in this Indenture.  All things necessary to make this Indenture a
valid agreement of the Company and the Initial Subsidiary Guarantors, in
accordance with its terms, have been done, and the Company has done all things
necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee hereunder and duly issued by the Company, valid
obligations of the Company as hereinafter provided.


 


This Indenture is subject to, and shall be governed
by, the provisions of the Trust Indenture Act of 1939, as amended, that are
required to be a part of and to govern indentures qualified under the Trust
Indenture Act of 1939, as amended.


 


AND THIS INDENTURE FURTHER WITNESSETH


 


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


 


ARTICLE
ONE

DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.              Definitions.


 


“Affiliate” means, as applied to any Person,
any other Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, such Person.  For purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.


 


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


 


“Agent Members” has the meaning provided in Section 2.07(a).


 


“Applicable Premium” means, at any Redemption
Date, the greater of (1) 1.0% of the principal amount of such Note and (2) the
present value at such Redemption Date of all required remaining scheduled
interest payments due (excluding accrued but unpaid interest to the Redemption
Date) on such Note through the Maturity Date, computed using a discount rate
equal to the Treasury Rate plus 50 basis points; and, as calculated by the
Company or on behalf of the 


 


1

















 


Company by such Person as the Company shall designate;
provided that such calculation shall not be a duty or obligation of the
Trustee.


 


“Attributable Debt”
in respect of any Sale and Leaseback Transaction, means, as of the time of
determination, the total obligation (discounted to present value at the rate
per annum equal to the discount rate which would be applicable to a capital
lease obligation with like term in accordance with GAAP) of the lessee for
rental payments (other than amounts required to be paid on account of property
taxes, maintenance, repairs, insurance, water rates and other items which do
not constitute payments for property rights) during the remaining portion of
the initial term of the lease included in such Sale and Leaseback Transaction.


 


“Board of Directors” means, with respect to any
Person, the Board of Directors of such Person or any duly authorized committee
of such Board of Directors.


 


“Board Resolution” means a copy of a resolution
certified by 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 except a Saturday,
Sunday or other day on which commercial banks in The City of New York or in the
city of the Corporate Trust Office of the Trustee are authorized by law to
close.


 


“Capital Stock” means, with respect to any
Person, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) in equity of such Person,
whether outstanding on the Closing Date or issued thereafter, including,
without limitation, all common stock and preferred stock.


 


“Change of Control” means such time as:


 


(i)            the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its
Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than the Company or a Subsidiary;


 


(ii)           a “person” or “group” (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes
the ultimate “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the total voting power of the Voting Stock of
the Company on a fully diluted basis;


 


(iii)          the adoption of a plan relating to the
liquidation or dissolution of the Company;


 


(iv)          individuals who on the Closing Date
constitute the Board of Directors (together with any new directors whose
election by the Board of Directors or whose nomination by the Board of
Directors for election by the Company’s stockholders was approved by a vote of
at least a majority of the members of the Board of Directors then in office who
either were members of the Board of Directors on the Closing Date or whose 


 


2

















 


election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office;
or


 


(v)           the Company consolidates with, or
merges with or into, any Person or any Person consolidates with, or merges with
or into the Company, in any such event pursuant to a transaction in which any
of the outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property, other than
any such transaction where (a) the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for Voting
Stock of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or transferee Person
(immediately after giving effect to such issuance) and (b) immediately
after such transaction, no “person” or “group” (as such terms are used in Section 13(d) and
14(d) of the Exchange Act) becomes, directly or indirectly, the “beneficial
owner” of 50% or more of the voting power of the Voting Stock of the surviving
or transferee Person.


 


“Closing Date” means the date on which the
Notes are originally issued under this Indenture.


 


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


 


“Company” means the party named as such in the
first paragraph of this Indenture until a successor replaces it pursuant to Article Five
of this Indenture and thereafter means the successor.


 


“Company Order” means a written request or
order signed in the name of the Company (i) by its Chairman, a Vice
Chairman, its President or a Vice President and (ii) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided, however,
that such written request or order may be signed by any two of the officers or
directors listed in clause (i) above in lieu of being signed by one of
such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.


 


“Consolidated Assets”
means the total amount of assets of the Company and its Subsidiaries, as set
forth on the most recently available quarterly or annual consolidated balance
sheet of the Company and its Subsidiaries, prepared in conformity with GAAP, in
each case, giving pro forma effect to any Material Asset Sale or Material Asset
Acquisition, that shall have occurred since the end of such fiscal quarter.


 


“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;


 


3

















 


(b)           Consolidated
Non-cash Charges;


 


(c)           Consolidated
Interest Expense;


 


(d)           Consolidated
Income Tax Expense (other than income tax expense (either positive or negative)
attributable to extraordinary gains or losses);


 


(e)           the
write-off or amortization of deferred financing fees and any premium actually
paid in connection with the prepayment or retirement of any Indebtedness); and


 


(ii) less
non-cash items increasing Consolidated Net Income for such period, other than (a) the
accrual of revenue consistent with past practice, and (b) reversals of
prior accruals or reserves for cash items previously excluded in the calculation
of Consolidated Non-cash Charges.


 


In calculating “Consolidated
Cash Flow Available for Fixed Charges” for any period, if any Material Asset
Sale or Material Asset Acquisition (whether pursuant to a stock or an asset
transaction) shall have occurred since the first day of any twelve month period
for which the “Consolidated Cash Flow Available for Fixed Charges” is being
calculated, such calculation shall give pro forma effect to such Material Asset
Sale or Material Asset Acquisition.


 


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


 


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


 


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


 


(a)           any
amortization of debt discount and debt issuance costs;


 


(b)           the
cash cost under any Interest Rate Protection Obligations;


 


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


 


(d)           all
commissions, discounts and other fees and charges owed with respect to letters
of credit, bankers’ acceptance financing or similar activities;


 


(e)    the
interest expense on Indebtedness of another Person that is Guaranteed by the
Company or one of its Subsidiaries or secured by a Mortgage on assets of the
Company or one of its Subsidiaries;


 


(f)            costs
associated with hedging obligations related to Indebtedness (including
amortization thereof);


 


4

















 


(g)           the
cash contributions to employee stock ownership plan or similar trust to the extent
such contributions are used by such plan or trust to pay interest or fees to
any Person (other than the Company) in connection with Indebtedness incurred by
such plan or trust;


 


(h)           all
accrued interest;


 


(i)            interest
expense, amortization or write-off of debt discount and debt issuance costs and
commissions, discounts and other premiums, fees and charges associated with
Indebtedness or any receivables financing, whether in connection with the
incurrence, prepayment, redemption, termination or wind-down thereof or
otherwise associated with Indebtedness or any receivables financing (including
the Credit Agreements, letters of credit, bankers’ acceptances and net costs
under hedging agreements); and


 


(ii)           the interest component of capital
lease obligations paid, accrued and/or scheduled to be paid or accrued by such
Person and its Subsidiaries during such period determined on a consolidated
basis in accordance with GAAP.


 


“Consolidated Net Income” means, with respect
to any Person, for any period, the consolidated net income (or loss) of such
Person and its Subsidiaries for such period as determined in accordance with
GAAP, adjusted, to the extent included in calculating such net income, by
excluding, without duplication:


 


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


 


(ii)           the portion of net income of such
Person and its Subsidiaries allocable to minority interests in unconsolidated
Persons to the extent that cash dividends or distributions have not actually
been received by such Person or one of its Subsidiaries;


 


(iii)          gains or losses in respect of any
sales of capital stock or asset sales outside the ordinary course of business
by such Person or one of its Subsidiaries (net of fees and expenses relating to
the transaction giving rise thereto), on an after-tax basis;


 


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


 


(v)           any fees and expenses paid in
connection with the issuance of the Notes or other Indebtedness;


 


(vi)          non-cash compensation expense incurred
with any grant of or issuance or repricing of equity interests to an employee
of such Person or any Subsidiary;


 


(vii)         nonrecurring or unusual gains or
losses;


 


(viii)        the net after-tax effects of adjustments
in the inventory, property and equipment, goodwill, intangible assets, deferred
revenue and debt line items in such 


 


5

















 


Person’s
consolidated financial statements pursuant to GAAP resulting from the
application of purchase accounting or the amortization or write-off of any
amounts thereof;


 


(ix)           any fees and expenses incurred during
such period, or any amortization thereof for such period, in connection with
any acquisition, investment, asset sale, issuance or repayment of Indebtedness,
issuance of stock, stock options or other equity-based awards, refinancing
transaction or amendment or modification of any debt instrument (including
without limitation any such transaction undertaken but not completed);


 


 (x)           any
gain or loss recorded in connection with the designation of a discontinued
operation (exclusive of its operating income or loss);


 


(xi)           any non-cash compensation or other
non-cash expenses or charges arising from the grant of or issuance or repricing
of stock, stock options or other equity-based awards or any amendment,
modification, substitution or change of any such stock, stock options or other
equity-based awards; and


 


(xii)          any non-cash impairment, restructuring
or special charge or asset write-off or write-down, and the amortization or
write-off of intangibles.


 


“Consolidated Non-cash Charges” means, with
respect to any Person for any period, the aggregate depreciation, amortization
(including amortization of goodwill and other intangibles) and other non-cash
expenses (including stock option expenses and any goodwill impairment charges)
of such Person and its Subsidiaries reducing Consolidated Net Income of such
Person and its Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP (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” means the designated
office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be administered, which office is, at the date of
this Indenture, located at Hearst Tower - 214 N. Tryon Street, 27th Floor,
Charlotte, NC 28202; Attention: 
Katherine A. Esber, CCTS.


 


“Credit Agreement” means the credit agreement,
dated as of September 21, 2007, among SPX Corporation and other borrowers
party thereto from time to time, as Borrower, the lenders party thereto from
time to time, Bank of America, N.A. as Administrative Agent, Deutsche Bank AG
Deutschlandgeschaft Branch as Foreign Trade Facility Agent, JPMorgan Chase
Bank, N.A. as Syndication Agent, Citibank, N.A. and The Bank of Nova Scotia as
Co-Documentation Agents, Banc of America Securities LLC and Deutsche Bank AG
Deutschlandgeschaft Branch as Joint Lead Arrangers, Banc of America Securities
LLC, Deutsche Bank AG Deutschlandgeschaft Branch and J.P. Morgan Securities
Inc. as Joint Book Managers and the lenders from time to time party thereto,
together with any agreements, instruments, security agreements, guaranties and
other documents executed or delivered pursuant to or in connection with such
credit agreement, as such credit agreement or such agreements, instruments,
security agreements, guaranties or other documents may be amended, 


 


6

















 


supplemented, extended,
restated, renewed or otherwise modified from time to time and any successive
refundings, refinancings, replacements or substitutions thereof or therefor,
whether with the same or different lenders.


 


“Credit Facilities” means one or more debt
facilities (including, without limitation, the Credit Agreement), commercial
paper facilities or indentures, in each case with banks or other institutional
lenders or a trustee, providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables), letters of credit or issuances of notes, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.


 


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


 


“Depositary” means The Depository Trust
Company, its nominees, and their respective successors.


 


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


 


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


 


“Exchange Notes” means (i) any securities
of the Company containing terms identical to the Notes (except that such
Exchange Notes shall be registered under the Securities Act) that are issued
and exchanged for the Notes pursuant to the Registration Rights Agreement and
this Indenture or (ii) any securities of the Company containing terms
identical to the Notes except for the removal of restricted legends, which such
security has been exchanged for Notes that become freely tradable under the
Securities Act.


 


“fair market value” means the price that would
be paid in an arm’s-length transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by the Company.


 


“Foreign Subsidiary” means any Subsidiary of
the Company that is an entity which is a controlled foreign corporation under Section 957
of the Internal Revenue Code and does not guarantee or otherwise provide direct
credit support for any Indebtedness of the Company or any Subsidiary Guarantor.


 


“Funded Debt” means all Indebtedness having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower,
but excluding any such Indebtedness owed to the Company or a Subsidiary of the
Company.


 


“GAAP” means generally accepted accounting
principles in the United States set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been 


 


7

















 


approved by a significant
segment of the accounting profession which are in effect on the Closing Date.


 


“Global Notes” has the meaning provided in Section 2.01.


 


“Guarantee” means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (1) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services (unless such purchase arrangements are on arm’s-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise) or (2) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided
that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business; supplier, purchaser or customer
arrangements in the ordinary course of business; representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary which
are reasonably customary in sale, factoring or securitization of receivables
financings; or “comfort” letters delivered to auditors in connection with
statutory audits.  The term “Guarantee”
used as a verb has a corresponding meaning.


 


“Holder” or “Noteholder” means the
registered holder of any Note.


 


“Indebtedness”
means indebtedness for borrowed money. For the avoidance of doubt, (a) a
letter of credit and (b) a foreign credit instrument (as contemplated by
the Credit Agreement) and analogous instruments do not constitute Indebtedness,
until, in each case, it has been drawn upon.


 


“Indenture” means
this Indenture as originally executed or as it may be amended or supplemented
from time to time by one or more indentures supplemental to this Indenture
entered into pursuant to the applicable provisions of this Indenture.


 


“Initial Subsidiary Guarantors” means each of
the Company’s existing domestic Subsidiaries and future domestic Subsidiaries
that guarantees obligations under the Company’s Credit Agreement.


 


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


 


“Interest Payment Date” means each semiannual
interest payment date on June 15 and December 15 of each year,
commencing June 15, 2008.


 


“Interest Rate Protection Agreements” means,
with respect to any Person, any arrangement with any other Person whereby,
directly or indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either a floating or a fixed rate of
interest on a stated notional amount in exchange for periodic payments made by
such 


 


8

















 


Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include without limitation, interest rate swaps, caps, floors, collars
and similar agreements.


 


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


 


“Investment Grade” means (1) BBB- or
above, in the case of S&P (or its equivalent under any successor Rating
Categories of S&P) and Baa3 or above, in the case of Moody’s (or its
equivalent under any successor Rating Categories of Moody’s) or (2) the
equivalent in respect of the Rating Categories of any Rating Agencies.


 


“Material Asset
Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes all or substantially all of
the assets of a business, unit or division of a Person or constitutes all or
substantially all of the common stock (or equivalent) of a Person and (b) involves
consideration in excess of $25,000,000.


 


“Material Asset Sale”
means any disposition of property or series of related dispositions of property
that (a) involves all or substantially all of the assets of a business,
unit or division of a Person or constitutes all or substantially all of the
common stock (or equivalent) of a Subsidiary and (b) yields gross proceeds
to the Company or any of its Subsidiaries in excess of $25,000,000.


 


“Maturity Date”
means December 15, 2014.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Mortgage” means, with respect to any property
or assets, any mortgage or deed of trust, pledge, hypothecation, assignment,
security interest, lien, encumbrance, or any other security arrangement of any
kind or nature whatsoever on or with respect to such property or assets
(including any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).


 


“Net Cash Proceeds” means the proceeds of such
issuance or sale in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of attorney’s fees,
accountants’ fees, underwriters’ or placement agents’ fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection
with such issuance or sale and net of taxes paid or payable as a result
thereof.


 


“Non-U.S. Person” means a person who is not a “U.S.
person” (as defined in Regulation S).


 


“Note Guarantee” means a Guarantee of the
obligations of the Company under this Indenture and the Notes by any Subsidiary
Guarantor.


 


9

















 


 “Notes”
means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture.  For all purposes of this Indenture, the term “Notes”
shall include the Notes initially issued on the Closing Date, any Exchange
Notes to be issued and exchanged for any Notes pursuant to the Registration
Rights Agreement and this Indenture and any other Notes issued after the
Closing Date under this Indenture.  For
purposes of this Indenture, all Notes shall vote together as one series of
Notes under this Indenture.


 


“Offer to Purchase” means an offer by the
Company to purchase Notes from the Holders commenced by mailing a notice to the
Trustee and each Holder stating:


 


(i)            that all Notes validly tendered will
be accepted for payment on a pro rata basis;


 


(ii)           the purchase price and the date of
purchase (which shall be a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed) (the “Payment Date”);


 


(iii)          that any Note not tendered will
continue to accrue interest pursuant to its terms;


 


(iv)          that, unless the Company defaults in
the payment of the purchase price, any Note accepted for payment pursuant to
the Offer to Purchase shall cease to accrue interest on and after the Payment
Date;


 


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


 


(vi)          that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the third Business Day immediately preceding the Payment Date, a
telegram, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Notes delivered for purchase and a statement
that such Holder is withdrawing his election to have such Notes purchased; and


 


(vii)         that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued
shall be in a principal amount of $2,000 or integral multiples of $1,000 in
excess thereof.


 


On the Payment Date, the Company shall (a) accept for payment on a
pro rata basis (with such adjustments as needed so that no Notes purchased in
part shall be in an unauthorized denomination) Notes or portions thereof
tendered pursuant to an Offer to Purchase; (b) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or portions
thereof so accepted; and (c) deliver, or cause to be delivered, to the
Trustee all Notes or portions thereof so accepted together with an Officers’
Certificate specifying the Notes or portions thereof 


 


10

















 


accepted for payment by the Company. 
The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Note equal in principal
amount to any unpurchased portion of the Note surrendered; provided that each Note purchased and each
new Note issued shall be in a principal amount of $2,000 or integral multiples
of $1,000 in excess thereof.  The Company
will publicly announce the results of an Offer to Purchase as soon as practicable
after the Payment Date.  The Trustee
shall act as the Paying Agent for an Offer to Purchase.  The Company will comply with Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable, in the event that the
Company is required to repurchase Notes pursuant to an Offer to Purchase.


 


“Officer” means, with respect to the Company, (i) the
Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President, any Vice President or the Chief Financial Officer, and (ii) the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.


 


“Officers’ Certificate” means a certificate
signed by two officers of the Company or a Subsidiary 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 Subsidiary
Guarantor, as applicable. Each Officers’ Certificate (other than certificates
provided pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).


 


“Offshore Global Note” has the meaning provided
in Section 2.01.


 


“Offshore Physical Notes” has the meaning
provided in Section 2.01.


 


“Opinion of Counsel” means a written opinion
signed by legal counsel reasonably acceptable to the Trustee, who may be an
employee of or counsel to the Company, that meets the requirements of Section 11.04.  Each such Opinion of Counsel shall include
the statements provided for in TIA Section 314(e).


 


“Paying Agent” has the meaning provided in Section 2.04,
except that, for the purposes of Article Eight, the Paying Agent shall not
be the Company or a Subsidiary of the Company or an Affiliate of any of
them.  The term “Paying Agent”
includes its successors and assigns and any additional Paying Agent.


 


“Paying Agent Office” means the designated
office of the Trustee at which the corporate trust paying agent office of the
Trustee shall, at any particular time, be administered, which office is, at the
date of this Indenture, located at Hearst Tower - 214 N. Tryon Street, 27th
Floor, Charlotte, NC 28202; Attention: Katherine A. Esber, CCTS, Vice President &
Account Manager.


 


“Payment Date” has the meaning provided in the
definition of Offer to Purchase.


 


“Permitted Mortgages” means (1) Mortgages
imposed by law for taxes that are not yet due or are being contested in good
faith and for which adequate reserves are being maintained, to the extent
required by GAAP; (2) carriers’, warehousemen’s, mechanics’, 


 


11

















 


materialmen’s, repairmen’s
and other like Mortgages imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 90 days or
are being contested in good faith and for which adequate reserves are being
maintained, to the extent required by GAAP; (3) pledges and deposits made
in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations; (4) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety, indemnity, release and appeal bonds, performance or
warranty bonds and other obligations of a like nature, and guarantees or
reimbursement or related obligations thereof, in each case in the ordinary
course of business; (5) deposits securing liabilities to insurance
carriers under insurance or self-insurance arrangements; (6) judgment
(including pre-judgment attachment) Mortgages not giving rise to an Event of
Default; (7) banker’s Mortgages, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a depositary
institution; provided that (a) such
deposit account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company or any Subsidiary in excess of
those set forth by regulations promulgated by any applicable governmental
authority and (b) such deposit account is not intended by the Company or
any Subsidiary to provide collateral to the depositary institution; (8) Mortgages
arising from UCC financing statement filings regarding operating leases or
consignments entered into by the Company and any Subsidiary in the ordinary
course of business; (9) customary restrictions imposed on the transfer of
copyrighted or patented materials or other intellectual property and customary
provisions in agreements that restrict the assignment of such agreements or any
rights thereunder; (10) easements, leases, subleases, ground leases,
zoning restrictions, building codes, rights-of-way, minor defects or
irregularities in title and similar encumbrances on real property imposed by
law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Company or any Subsidiary; (11) Mortgages existing on the date of this
Indenture or any extension, renewal, replacement or refunding, in whole or in
part, of any Indebtedness secured by a Mortgage existing on that date of this
Indenture or referred to in the foregoing clauses or Mortgages created in
connection with any amendment, consent or waiver relating to such Indebtedness;
provided that any such extension, renewal, replacement or refunding of such
Indebtedness shall be created within 360 days or repaying the Indebtedness
secured by the Mortgage referred to in the foregoing clauses and the principal
amount of the Indebtedness secured thereby and not otherwise authorized by the
foregoing clauses shall not exceed the principal amount of Indebtedness, plus
any premium or fee payable in connection with any such extension, renewal,
replacement or refunding so secured at the time of such extension, renewal,
replacement or refunding; and (12) customary unperfected Mortgages incurred in
the ordinary course of business that secure current trade payables incurred in
the ordinary course of business and payable in accordance with customary
practices; provided that such Mortgages encumber
only the assets related to such current trade payables. For the avoidance of
doubt, the enumeration of items in this Permitted Mortgages definition does not
mean that the items secured by Permitted Mortgages are Funded Debt or
Indebtedness.


 


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


 


“Physical Notes” has the meaning provided in Section 2.01.


 


12

















 


“principal” of a debt security, including the
Notes, means the principal amount due on the Stated Maturity as shown on such
debt security.


 


“Private Placement Legend” means the legend
initially set forth as the first legend on the Notes in the form set forth in Section 2.02.


 


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


 


“Rating Agencies” means (1) S&P and
Moody’s or (2) if S&P or Moody’s or both of them are not making ratings
publicly available, a nationally recognized U.S. rating agency or agencies, as
the case may be, selected by the Company, which will be substituted for S&P
or Moody’s or both, as the case may be.


 


“Rating Category” means (1) with respect
to S&P, any of the following categories (any of which may include a “+” or “-”:
AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with
respect to Moody’s, any of the following categories:  Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or
equivalent successor categories) and (3) the equivalent of any such
categories of S&P or Moody’s used by another Rating Agency, if applicable.


 


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


 


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


 


“Registrar” has the meaning provided in Section 2.04.


 


“Registration Rights Agreement” means that
certain registration rights agreement, dated as of the date of this Indenture,
by and among the Company, the Initial Subsidiary Guarantors and the initial
purchasers set forth therein.


 


“Registration Statement” has the meaning provided
in the Registration Rights Agreement.


 


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


 


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


 


“Responsible Officer,” when used with respect
to the Trustee, means any officer of the Trustee in its Corporate Trust Office,
including any vice president, assistant vice president, assistant treasurer,
assistant secretary, 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, with direct responsibility for
the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom 


 


13

















 


such matter is referred
because of his or her knowledge of and familiarity with the particular subject.


 


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


 


“Sale and Leaseback Transaction” means any
arrangement with any Person providing for the leasing to the Company or any
Subsidiary of the Company of any property or assets, which property or assets
has been or is to be sold or transferred by the Company or any Subsidiary of
the Company to such Person.


 


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


 


“Security Register” has the meaning provided in
Section 2.04.


 


“Shelf Registration Statement” has the meaning
provided in the Registration Rights Agreement.


 


“Significant Subsidiary” means, at any date of
determination, any Subsidiary that would constitute a “significant subsidiary”
within the meaning of Article 1 of Regulation S-X of the Securities Act as
in effect on the Closing Date; provided that
all references to 10% in the definition of “significant subsidiary” in Article 1
of Regulation S-X of the Securities Act shall be deemed to be 5.0%.


 


“Stated Maturity” means when used with respect
to the Notes or any installment of interest thereon, 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.


 


“Subsidiary” means any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by the Company, or
by one or more other Subsidiaries of the Company, or by the Company and one or
more other Subsidiaries of the Company.


 


“Subsidiary Guarantor”
means any Initial Subsidiary Guarantor and any other Subsidiary of the Company
which provides a Note Guarantee of the Company’s obligations under this
Indenture and the Notes, until such Note Guarantee is released in accordance
with the terms of this Indenture.


 


“S&P” means
Standard & Poor’s, a division of The McGraw-Hill Companies.


 


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


 


14

















 


“Treasury Rate”
means, with respect to a Redemption Date, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H. 15(519) that has become publicly available at least two Business Days prior
to such Redemption Date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly
equal to the period from such Redemption Date to December 15, 2014; provided, however, that
if the period from the Redemption Date to such date is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the Redemption Date to such date is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.


 


“Trustee” means the party named as such in the
first paragraph of this Indenture until a successor replaces it in accordance
with the provisions of Article Seven of this Indenture and thereafter
means such successor.


 


“United States Bankruptcy Code” means the
Bankruptcy Reform Act of 1978, as amended and as codified in Title 11 of the
United States Code, as amended from time to time hereafter, or any successor
federal bankruptcy law.


 


“U.S. Global Notes” has the meaning provided in
Section 2.01.


 


“U.S. Government Obligations” means securities
that are (1) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (2) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof at any time prior to the Stated Maturity of the
Notes, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.


 


 “U.S.
Physical Notes” has the meaning provided in Section 2.01.


 


“Voting Stock” means with respect to any
Person, Capital Stock of any class or kind ordinarily having the power to vote
for the election of directors, managers or other voting members of the
governing body of such Person.


 


SECTION 1.02.      Incorporation
by Reference of Trust Indenture Act  Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by


 


15

















 


reference in and made a part of this Indenture.  The following TIA terms used in this
Indenture have the following meanings:


 


“indenture securities”
means the Notes;


 


“indenture security
holder” means a Holder or a Noteholder;


 


“indenture to be
qualified” means this Indenture;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)          provisions apply to
successive events and transactions;


 


(v)           all references to “including
“ shall have the meaning of “including without limitation”;


 


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


 


(vii)         all references to
Sections or Articles refer to Sections or Articles of this Indenture unless
otherwise indicated.


ARTICLE
TWO

THE NOTES


 


SECTION 2.01.              Form and Dating.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form annexed hereto as Exhibit A
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this 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 


 


16

















 


usage. The Company shall approve the form of
the Notes and any notation, legend or endorsement on the Notes.  Each Note shall be dated the date of its
authentication.


 


The terms and provisions contained in the form of the
Notes annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Indenture. 
To the extent applicable, the Company, each Subsidiary Guarantor and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.


 


Notes offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent Global Notes in
registered form in substantially the form set forth in Exhibit A (the “U.S.
Global Notes”), registered in the name of the nominee of the Depositary,
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the U.S.
Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, in accordance with the instructions given by the Holder thereof, as
hereinafter provided.


 


Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
temporary Global Notes in registered form in substantially the form set forth
in Exhibit A (the “Offshore Global Notes”), registered in the name
of the nominee of the Depositary, deposited with the Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the Trustee
as hereinafter provided.  The aggregate
principal amount of the Offshore Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, in accordance with the
instructions given by the Holder thereof, as hereinafter provided.


 


Notes transferred to Institutional Accredited
Investors pursuant to Section 2.08(a) of this Indenture shall be
issued in the form of permanent certificated Notes in registered form in substantially
the form set forth in Exhibit A (the “U.S. Physical Notes”).  Notes issued pursuant to Section 2.07 in
exchange for interests in the Offshore Global Notes shall be in the form of
permanent certificated Notes in registered form substantially in the form set
forth in Exhibit A (the “Offshore Physical Notes”).


 


The Offshore Physical Notes and U.S. Physical Notes
are sometimes collectively herein referred to as the “Physical Notes.”  The U.S. Global Notes and the Offshore Global
Notes are sometimes referred to herein as the “Global Notes.”


 


The definitive Notes shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the Officers
executing such Notes, as evidenced by their execution of such Notes.


 


SECTION 2.02.              Restrictive Legends.  Unless and until a Note is exchanged for an
Exchange Note or sold in connection with an effective Registration Statement
pursuant to the Registration Rights Agreement, (i) each U.S. Global Note
and each U.S. Physical Note shall bear the legend set forth below on the face
thereof and (ii) each Offshore Physical Note and each


 


17
















 


Offshore
Global Note shall bear the legend set forth below on the face thereof until at
least the 41st day after the Closing Date and receipt by the Company and the
Trustee of a certificate substantially in the form of Exhibit B hereto.


 


THIS NOTE AND THE GUARANTEES
ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE ‘‘SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD THEN
REQUIRED UNDER RULE 144 OR ITS SUCCESSOR RULE) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY
PREDECESSOR OF THIS NOTE) (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’) ONLY (A) TO
THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (‘‘RULE
144A’’), TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL
BUYER’’ DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE
END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE, TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.


 


18

















 


Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN THE NAME OF SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE INDENTURE.


 


SECTION 2.03.              Execution, Authentication and
Denominations.  Subject to Article Four
and applicable law, the aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.  The Notes shall be executed by two Officers
of the Company.  The signature of these
Officers on the Notes may be by facsimile or manual signature in the name and
on behalf of the Company.


 


If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or authenticating agent authenticates the Note, the
Note shall be valid nevertheless.


 


A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note.  The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.


 


At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Notes in the aggregate principal
amount specified in such Company Order; provided
that the Trustee shall be entitled to receive an Officers’ Certificate and an
Opinion of Counsel of the Company in connection with such authentication of
Notes.  Such Company Order shall specify
the amount of Notes to be authenticated and the date on which the original
issue of Notes is to be authenticated and, in case of an issuance of Notes
pursuant to Section 2.15, shall certify that such issuance is in
compliance with Article Four.


 


The Trustee may appoint an authenticating agent to authenticate
Notes.  An authenticating agent may
authenticate Notes whenever the Trustee may do so.  Each reference in 


 


19

















 


this Indenture to
authentication by the Trustee includes authentication by such authenticating
agent.  An authenticating agent has the
same rights as an Agent to deal with the Company or any Subsidiary Guarantor or
an Affiliate of the Company or any Subsidiary Guarantor.


 


The Notes shall be issuable only in registered form without coupons and
only in denominations of $2,000 in principal amount and multiples of $1,000 in
excess thereof.


 


SECTION 2.04.              Registrar and Paying Agent.  The Company shall maintain an office or
agency where Notes may be presented for registration of transfer or for
exchange (the “Registrar”), an office or agency where Notes may be
presented for payment (the “Paying Agent”) and an office or agency where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
shall cause the Registrar to keep a register of the Notes and of their transfer
and exchange (the “Security Register”). 
The Security Register shall be in written form or any other form capable
of being converted into written form within a reasonable time.  The Company may have one or more
co-Registrars and one or more additional Paying Agents.


 


The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture.  The
agreement shall implement the provisions of this Indenture that relate to such
Agent.  The Company shall give prompt
written notice to the Trustee of the name and address of any such Agent and any
change in the address of such Agent.  If
the Company fails to maintain a Registrar, Paying Agent and/or agent for
service of notices and demands, the Company shall appoint the Trustee to act
as, and the Trustee shall act as, such Registrar, Paying Agent and/or agent for
service of notices and demands.  The
Company may remove any Agent upon written notice to such Agent and the Trustee;
provided that no such removal
shall become effective until (i) the acceptance of an appointment by a
successor Agent to such Agent as evidenced by an appropriate agency agreement
entered into by the Company and such successor Agent and delivered to the
Trustee or (ii) notification to the Trustee that the Trustee shall serve
as such Agent until the appointment of a successor Agent in accordance with
clause (i) of this proviso.  The
Company, any Subsidiary of the Company, or any Affiliate of any of them may act
as Paying Agent, Registrar or co-Registrar, and/or agent for service of notice
and demands.


 


The Company hereby initially appoints the Trustee as Registrar, Paying
Agent, authenticating agent and agent for service of notice and demands.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the names
and addresses of Holders and shall otherwise comply with
TIA § 312(a).  If the Trustee
is not the Registrar, the Company shall furnish to the Trustee as of each
Regular Record Date and at such other times as the Trustee may reasonably
request the names and addresses of Holders as they appear in the Security
Register, including the aggregate principal amount of Notes held by each
Holder.


 


SECTION 2.05.              Paying Agent to Hold Money in
Trust.  Not later than 11:00 a.m.
(New York City time) on each due date of the principal, premium, if any, and
interest on any Notes, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal, premium, if any,
and interest so becoming due.  The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by 


 


20

















 


the
Paying Agent for the payment of principal of, premium, if any, and interest on
the Notes (whether such money has been paid to it by the Company or any other
obligor on the Notes), and such Paying Agent shall promptly notify the Trustee
of any default by the Company (or any other obligor on the Notes) in making any
such payment.  The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed.  Upon
doing so, the Paying Agent shall have no further liability for the money so
paid over to the Trustee.  If the Company
or any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it will, on or before each due date of any principal of, premium, if
any, or interest on the Notes, segregate and hold in a separate trust fund for
the benefit of the Holders a sum of money sufficient to pay such principal,
premium, if any, or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture,
and will promptly notify the Trustee of its action or failure to act.


 


SECTION 2.06.              Transfer and Exchange.  The Notes are issuable only in registered
form.  A Holder may transfer a Note only
by written application to the Registrar stating the name of the proposed
transferee and otherwise complying with the terms of this Indenture.  No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register.  Prior to the registration of
any transfer by a Holder as provided herein, the Company, the Trustee, and any
agent of the Company shall treat the person in whose name the Note is
registered as the owner thereof for all purposes whether or not the Note shall
be overdue, and neither the Company, the Trustee, nor any such agent shall be
affected by notice to the contrary. 
Furthermore, any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book entry system maintained by the Holder of
such Global Note (or its agent) and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book entry.  When Notes are presented to the Registrar or
a co-Registrar with a request to register the transfer or to exchange them for
an equal principal amount of Notes of other authorized denominations (including
an exchange of Notes for Exchange Notes), the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met (including that such Notes are duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder); provided that no exchanges of Notes for
Exchange Notes shall occur until a Registration Statement shall have been
declared effective by the Commission, the Trustee shall have received notice of
such effectiveness by the Company and provided further that any Notes that are
exchanged for Exchange Notes shall be cancelled by the Trustee.  To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Notes at the
Registrar’s request.  No service charge
shall be made for any registration of transfer or exchange or redemption of the
Notes, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge
payable upon exchanges pursuant to Section 2.11, 3.08 or 9.04).


 


21

















 


The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 3.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.


 


SECTION 2.07.              Book-Entry Provisions for
Global Notes.  The U.S. Global Notes
and Offshore Global Notes initially 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 custodian for such Depositary and (iii) bear
legends as set forth in Section 2.02.


 


(a)           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 such 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 in Global Notes
may be transferred in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.08.  In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Notes or the Offshore Global
Notes, as the case may be, if (i) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for the U.S. Global Notes
or the Offshore Global Notes, as the case may be, and a successor depositary is
not appointed by the Company within 90 days of such notice, (ii) an Event
of Default has occurred and is continuing and the Registrar has received a
written request from the Depositary or (iii) in accordance with the rules and
procedures of the Depositary and the provisions of Section 2.08.


 


(c)           Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in
another Global Note will, upon transfer, cease to be an interest in another
Global Note and become an interest in such other Global Note and, accordingly,
will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Note for as
long as it remains such an interest.


 


(d)           In connection with any transfer of a portion of the
beneficial interests in a Global Note to beneficial owners pursuant to paragraph
(b) of this Section 2.07, the Registrar shall reflect on its books
and records the date and a decrease in the principal 


 


22

















 


amount of the Global Note in an amount
equal to the principal amount of the beneficial interest in the Global Note to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Notes or Offshore Physical
Notes, as the case may be, of like tenor and amount.


 


(e)           In connection with the transfer of the U.S. Global Notes
or the Offshore Global Notes, in whole, to beneficial owners pursuant to
paragraph (b) of this Section 2.07, the U.S. Global Notes or Offshore
Global Notes, as the case may be, 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 the U.S. Global Notes or Offshore
Global Notes, as the case may be, an equal aggregate principal amount of U.S.
Physical Notes or Offshore Physical Notes, as the case may be, of authorized
denominations.


 


(f)            Any U.S. Physical Note delivered in exchange for an
interest in the U.S. Global Notes pursuant to paragraph (b), (d) or (e) of
this Section 2.07 shall, except as otherwise provided by paragraph (f) of
Section 2.08, bear the legend regarding transfer restrictions applicable
to the U.S. Physical Note set forth in Section 2.02.


 


(g)           Any Offshore Physical Note delivered in exchange for an
interest in the Offshore Global Notes pursuant to paragraph (b), (d) or (e) of
this Section 2.07 shall, except as otherwise provided by paragraph (f) of
Section 2.08, bear the legend regarding transfer restrictions applicable
to the Offshore Physical Note set forth in Section 2.02.


 


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


 


SECTION 2.08.              Special Transfer Provisions.  Unless and until a Note is exchanged for an
Exchange Note or sold in connection with an effective Shelf Registration
Statement pursuant to the Registration Rights Agreement, the following
provisions shall apply:


 


(a)           Transfers to Non-QIB Institutional Accredited Investors.  The following provisions shall apply with
respect to the registration of any proposed transfer of a Note to any
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons):


 


(i)            The Registrar shall
register the transfer of any Note, whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after the time period
referred to in Rule 144(k) under the Securities Act or (y) the
proposed transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit C hereto and (B) if the
aggregate principal amount of the Notes being transferred is less than
$100,000, an opinion of counsel acceptable to the Company that such transfer is
in compliance with the Securities Act.


 


(ii)           If the proposed
transferor is an Agent Member holding a beneficial interest in the U.S. Global
Notes, upon receipt by the Registrar of (x) the 


 


23

















 


documents,
if any, required by paragraph (i) above and (y) instructions given in
accordance with the Depositary’s and the Registrar’s procedures, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Notes in an amount equal to the principal amount of
the beneficial interest in the U.S. Global Notes to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more U.S. Physical Notes of like tenor and amount.


 


(b)           Transfers to QIBs. 
The following provisions shall apply with respect to the registration of
any proposed transfer of U.S. Physical Notes or an interest in U.S. Global
Notes to a QIB (excluding Non-U.S. Persons):


 


(i)            If the Note to be
transferred consists of (x) either Offshore Physical Notes prior to the
removal of the Private Placement Legend or U.S. Physical Notes, the Registrar
shall register the transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of Note
stating, or has otherwise advised the Company and the Registrar in writing,
that it is purchasing the 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 QIB within the meaning of 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 it 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 its foregoing
representations in order to claim the exemption from registration provided by Rule 144A
or (y) an interest in the U.S. Global Notes, the transfer of such interest
may be effected only through the book entry system maintained by the
Depositary.


 


(ii)           If the proposed
transferee is an Agent Member, and the Note to be transferred consists of U.S.
Physical Notes, upon receipt by the Registrar of the documents referred to in
paragraph (i) above and instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of U.S.
Global Notes in an amount equal to the principal amount of the U.S. Physical
Notes to be transferred, and the Trustee shall cancel the U.S. Physical Notes
so transferred.


 


(c)           Transfers of Interests in the Offshore Global Notes or
Offshore Physical Notes.  The
following provisions shall apply with respect to any transfer of interests in
the Offshore Global Notes or Offshore Physical Notes:


 


(i)            Prior to the
removal of the Private Placement Legend from an Offshore Global Note or
Offshore Physical Note pursuant to Section 2.02, the 


 


24

















 


Registrar
shall refuse to register such transfer unless such transfer complies with Section 2.08(b) or
Section 2.08(d), as the case may be; and


 


(ii)           After such removal,
the Registrar shall register the transfer of any such Note without requiring
additional certification.


 


(d)           Transfers to Non-U.S. Persons at Any Time.  The following provisions shall apply with
respect to any transfer of a Note to a Non-U.S. Person:


 


(i)            The Registrar shall
register any proposed transfer to any Non-U.S. Person if the Note to be
transferred is a U.S. Physical Note or an interest in U.S. Global Notes, upon
receipt of a certificate substantially in the form of Exhibit D hereto
from the proposed transferor.


 


(ii)           (a) If the
proposed transferor is an Agent Member holding a beneficial interest in the
U.S. Global Notes, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions in accordance
with the Depositary’s and the Registrar’s procedures, the Registrar shall
reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Notes in an amount equal to the principal amount of
the beneficial interest in the U.S. Global Notes to be transferred, and (b) if
the proposed transferee is an Agent Member, upon receipt by the Registrar of
instructions given in accordance with the Depositary’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Offshore Global Notes in an amount
equal to the principal amount of the U.S. Physical Notes or the U.S. Global
Notes, as the case may be, to be transferred, and the Trustee shall cancel the
Physical Note, if any, so transferred or decrease the amount of the U.S. Global
Notes.


 


(e)           Private Placement Legend.  Upon the transfer, exchange or replacement of
Notes not bearing the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer,
exchange or replacement of Notes bearing the Private Placement Legend, the
Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the Private Placement Legend is no longer required by Section 2.02,
(ii) the circumstances contemplated by paragraph (a)(i)(x) of this Section 2.08
exist or (iii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.


 


(f)            General.  By
its acceptance of any Note bearing the Private Placement Legend, each Holder of
such a Note acknowledges the restrictions on transfer of such Note set forth in
this Indenture and in the Private Placement Legend and agrees that it will
transfer such Note only as provided in this Indenture. 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 


 


25

















 


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; 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.


 


The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
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 2.09.              Replacement Notes.  If a mutilated Note is surrendered to the
Trustee or if the Holder claims that the Note has been lost, destroyed or
wrongfully taken, then, in the absence of written notice to the Company or the
Trustee that such Note has been acquired by a protected purchaser, the Company
shall issue and the Trustee shall authenticate a replacement Note of like tenor
and principal amount and bearing a number not contemporaneously outstanding; provided that the requirements of this Section 2.09
are met.  If required by the Trustee or
the Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss that any of them may suffer if a Note is
replaced.  The Company may charge such
Holder for its expenses and the expenses of the Trustee in replacing a
Note.  In case any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become due and
payable, the Company in its discretion may pay such Note instead of issuing a new
Note in replacement thereof.


 


Every replacement Note is an additional obligation of the Company and
each Subsidiary Guarantor and shall be entitled to the benefits of this
Indenture.


 


SECTION 2.10.              Outstanding Notes.  Notes outstanding at any time are all Notes
that have been authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation and those described in this Section 2.10
as not outstanding.


 


If a Note is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a protected purchaser.


 


If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the Maturity Date money sufficient to pay Notes payable on
that date, then on and after that date such Notes cease to be outstanding and
interest on them shall cease to accrue.


 


A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note, provided,
however, that in determining whether the Holders of the requisite
principal amount of the outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall 


 


26

















 


be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee has actual
knowledge to be so owned shall be so disregarded.  Notes so owned which have been pledged in
good faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.


 


SECTION 2.11.              Temporary Notes.  Until definitive Notes are ready for delivery,
the Company may prepare and execute and the Trustee shall authenticate
temporary Notes.  Temporary Notes shall
be substantially in the form of definitive Notes but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officers executing the temporary Notes, as evidenced by their execution of
such temporary Notes.  If temporary Notes
are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay.  After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 4.02, without
charge to the Holder.  Upon surrender for
cancellation of any one or more temporary Notes, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations.  Until so exchanged, the temporary Notes shall
be entitled to the same benefits under this Indenture as definitive Notes.


 


SECTION 2.12.              Cancellation.  The Company, at any time, may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder.  The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for transfer,
exchange or payment.  The Trustee shall
cancel all Notes surrendered for transfer, exchange, payment or cancellation
and shall destroy them in accordance with its normal procedure.


 


SECTION 2.13.              CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP,”
“CINS” or “ISIN” numbers (if then generally in use), and the Company and the
Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices
of redemption or exchange as a convenience to Holders; provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of redemption or exchange
and that reliance may be placed only on the other identification numbers
printed on the Notes.  The Company shall
promptly notify the Trustee of any change in “CUSIP,” “CINS” or “ISIN” numbers
for the Notes.


 


SECTION 2.14.              Defaulted Interest.  If the Company defaults in a payment of
interest on the Notes, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay, the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted interest, to
the Persons who are Holders on a subsequent special record date.  A special record date, as used in this Section 2.14
with respect to the payment of any defaulted interest, shall mean the 15th
day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day.  At least 15 days before the subsequent
special record date, the Company shall mail to each Holder 


 


27

















 


and
to the Trustee a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest to be paid.


 


SECTION 2.15.              Issuance of Additional Notes.  The Company may, subject to Article Four
of this Indenture and applicable law, issue Additional Notes under this
Indenture.  The Notes issued on the Closing
Date and any Additional Notes subsequently issued shall be treated as a single
class for all purposes under this Indenture. The Additional Notes may be issued
in private or public transactions and will contain relevant legends.


 


ARTICLE
THREE

REDEMPTION


 


SECTION 3.01.              Right of Redemption.  Except as pursuant to this Section 3.01
the Company may not redeem the Notes prior to the Maturity Date. The Company
may redeem the Notes in whole or in part at any time prior to the Maturity
Date, at a Redemption Price equal to 100% of the principal amount thereof plus
the Applicable Premium as of the Redemption Date, plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date).


 


At
any time prior to December 15, 2010, the Company may redeem up to 35% of
the aggregate principal amount of the Notes (including any Additional Notes)
with the Net Cash Proceeds of one or more sales of common stock of the Company
at any time as a whole or from time to time in part, at a Redemption Price
(expressed as a percentage of principal amount) of 107.625%, plus accrued and
unpaid interest thereon, if any, to the Redemption Date (subject to the rights
of Holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest due on an Interest Payment Date); provided that (i) at least 65% of the
aggregate principal amount of Notes originally issued on the Closing Date
remains outstanding after each such redemption and (ii) notice of any such
redemption is mailed within 60 days after each such sale of common stock.


 


SECTION 3.02.              Notices to Trustee.   If the Company elects to redeem Notes
pursuant to Section 3.01, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed and the clause
of this Indenture pursuant to which redemption shall occur.


 


The Company shall give each notice provided for in this Section 3.02
in an Officers’ Certificate at least 45 days before the Redemption Date (unless
a shorter period shall be satisfactory to the Trustee).


 


SECTION 3.03.              Selection of Notes to Be
Redeemed.  If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed in compliance with the requirements, as certified to it by the
Company, of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not listed on a national securities exchange
or automated quotation system on a pro rata basis, by lot or by such other
method as the Trustee in its sole discretion shall deem fair and appropriate; provided that no Note of $2,000 in
principal amount or less shall be redeemed in part.


 


28

















 


The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption.  Notes
in denominations of $2,000 in principal amount may only be redeemed in whole.  The Trustee may select for redemption
portions (equal to $2,000 in principal amount or multiples of $1,000 in excess
thereof) of Notes that have denominations larger than $2,000 in principal
amount.  Provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes
called for redemption.  The Trustee shall
notify the Company and the Registrar promptly in writing of the Notes or
portions of Notes to be called for redemption.


 


SECTION 3.04.              Notice of Redemption.  With respect to any redemption of Notes
pursuant to Section 3.01, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail to each Holder whose Notes are to be redeemed.


 


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


 


(i)            the Redemption
Date;


 


(ii)           the Redemption
Price;


 


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


 


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


 


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


 


(vi)          that, if any Note is
being redeemed in part, the portion of the principal amount (equal to $2,000 in
principal amount or any integral multiple thereof) of such Note to be redeemed
and that, on and after the Redemption Date, upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion thereof will
be reissued; and


 


(vii)         that, if any Note
contains a CUSIP, CINS or ISIN number as provided in Section 2.13, no
representation is being made as to the correctness of the CUSIP, CINS or ISIN
number either as printed on the Notes or as contained in the notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes.


 


At the Company’s request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company.  If, however, the
Company gives such notice to the Holders, 


 


29

















 


the Company shall
concurrently deliver to the Trustee an Officers’ Certificate stating that such
notice has been given.


 


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


 


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


 


SECTION 3.06.              Deposit of Redemption Price.  On or prior to 11:00 a.m., New York City
time, on any Redemption Date, the Company shall deposit with the Paying Agent
(or, if the Company is acting as its own Paying Agent, shall segregate and hold
in trust as provided in Section 2.05) money sufficient to pay the
Redemption Price of and accrued interest on all Notes to be redeemed on that
date other than Notes or portions thereof called for redemption on that date
that have been delivered by the Company to the Trustee for cancellation.


 


SECTION 3.07.              Payment of Notes Called for
Redemption.  If notice of redemption
has been given in the manner provided above, the Notes or portion of Notes
specified in such notice to be redeemed shall become due and payable on the
Redemption Date at the Redemption Price stated therein, together with accrued
interest to such Redemption Date, and on and after such date (unless the
Company shall default in the payment of such Notes at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in
the Notes), such Notes shall cease to accrue interest.  Upon surrender of any Note for redemption in
accordance with a notice of redemption, such Note shall be paid and redeemed by
the Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders registered as such at the close
of business on the relevant Regular Record Date.


 


SECTION 3.08.              Notes Redeemed in Part.  Upon surrender of any Note that is redeemed
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder without service charge, a new Note equal in principal
amount to the unredeemed portion of such surrendered Note.


 


ARTICLE FOUR

COVENANTS


 


SECTION 4.01.              Payment of Notes.  The Company shall pay the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. 
An installment of principal, premium, if any, or interest shall be
considered paid on the date due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company, or any Affiliate of any of them) holds on
that date money designated 


 


30

















 


for and sufficient to pay the
installment.  If the Company or any
Subsidiary of the Company or any Affiliate of any of them acts as Paying Agent,
an installment of principal, premium, if any, or interest shall be considered
paid on the due date if the entity acting as Paying Agent complies with the
last sentence of Section 2.05.  As
provided in Section 6.09, upon any bankruptcy or reorganization procedure
relative to the Company, the Trustee shall serve as the Paying Agent, if any,
for the Notes.


 


The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
the rate per annum specified in the Notes.


 


SECTION 4.02.              Maintenance of Office or Agency.  The Company shall maintain an office or
agency where Notes may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 11.02.


 


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


 


The Company hereby initially designates the Paying Agent Office of the
Trustee, as such office or agency of the Company where Notes may be surrendered
for registration of transfer or exchange or for presentation for payment.


 


The Company hereby initially designates the Corporate Trust Office of
the Trustee, as such office where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served.


 


SECTION 4.03.              Limitation on Liens.  The
Company will not, and will not permit any of its Significant Subsidiaries to,
create, incur, issue, assume or guarantee any Funded Debt secured by a Mortgage
upon any of its properties or assets, whether owned on the Closing Date or
thereafter acquired, without effectively providing concurrently that the Notes
are secured equally and ratably with or, at the Company’s option, prior to such
Indebtedness so long as such Indebtedness shall be so secured.


 


The foregoing restriction shall not apply to, and there shall be
excluded from Indebtedness in any computation under such restriction,
Indebtedness secured by:


 


(i)            Permitted
Mortgages;


 


31

















 


(ii)           Mortgages on any
property or assets existing at the time of the acquisition thereof by the
Company or any Significant Subsidiary;


 


(iii)          Mortgages securing
only the Notes;


 


(iv)          Mortgages on
property or assets of a Person existing at the time such Person is merged into
or consolidated with the Company or any of its Significant Subsidiaries or at
the time of a sale, lease or other disposition of the properties and assets of
such Person (or a division thereof) as an entirety or substantially as an entirety
to the Company or any of its Significant Subsidiaries; provided
that any such Mortgage does not extend to any property or assets owned by the
Company or any of its Significant Subsidiaries immediately prior to such
merger, consolidation, sale, lease or disposition;


 


(v)           Mortgages on
property or assets of a Person existing at the time such Person becomes a
Significant Subsidiary of the Company;


 


(vi)          Mortgages in favor
of the Company or any of its Subsidiaries;


 


(vii)         Mortgages (including
in connection with capital leases) on property or assets (including shares of
Capital Stock of any Subsidiary formed to acquire, construct, develop or
improve such property) to secure all or part of the cost of acquisition,
construction, development or improvement of such property or assets, or to
secure Indebtedness incurred to provide funds for any such purpose; provided that the commitment of the creditor to extend the
credit secured by any such Mortgage shall have been obtained no later than 360
days after the later of (a) the completion of the acquisition,
construction, development or improvement of such property or assets or (b) the
placing in operation of such property or assets; provided
further that such Mortgage shall not extend to any other property or assets
(including shares of Capital Stock of any Subsidiary formed to acquire,
construct, develop or improve such property) other than those so acquired,
constructed, developed or improved;


 


(viii)        Mortgages to secure
obligations under Credit Facilities in an aggregate principal amount not to
exceed the greatest of (A) $1,750 million, (B) the sum of the amounts
equal to (x) 70% of the consolidated book value of the inventory of the
Company and its Subsidiaries and (y) 90% of the consolidated book value of
the accounts receivable of the Company and its Subsidiaries, in each case as of
the Company’s most recently ended fiscal quarter for which financial statements
are available, in each case, giving pro forma effect to any asset sale or asset
acquisition, that shall have occurred since the end of such fiscal quarter, and
(C) an amount that does not cause the ratio of Indebtedness secured by
Mortgages of the Company and its Subsidiaries to Consolidated Cash Flow
Available for Fixed Charges for the most recently ended twelve month period of
the Company for which financial statements are available to exceed 2.75:1.0;


 


(ix)           Mortgages on
property or assets of Foreign Subsidiaries to secure Funded Debt of such
Foreign Subsidiary incurred in the ordinary course of business; and


 


(x)            Mortgages existing
on the date of this Indenture or any extension, renewal, replacement or
refunding, in whole or in part, of any Indebtedness secured by a Mortgage 


 


32

















 


existing
on the date of this Indenture or referred to in the foregoing clauses of this Section 4.03
or Mortgages created in connection with any amendment, consent or waiver
relating to such Indebtedness; provided that
any such extension, renewal, replacement or refunding of such Indebtedness
shall be created within 360 days of repaying the Indebtedness secured by the
Mortgage referred to in the foregoing clauses of this Section 4.03, and
the principal amount of the Indebtedness secured thereby and not otherwise
authorized by the foregoing clauses of this Section 4.03 shall not exceed
the principal amount of Indebtedness, plus any premium or fee payable in
connection with any such extension, renewal, replacement or refunding, so
secured at the time of such extension, renewal, replacement or refunding.


 


For purposes of
determining compliance of any non-U.S. dollar-denominated Indebtedness with
this Section 4.03, the amount outstanding under any U.S. dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency shall at all
times be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term Indebtedness, or
first committed, in the case of revolving credit Indebtedness; provided, however, that if such
Indebtedness is incurred to refinance other Indebtedness 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 Indebtedness does not
exceed the principal amount of such Indebtedness being refinanced.


 


For purposes of
determining what category of excluded Mortgages in the foregoing clauses or the
next paragraph in which any Mortgage shall be included, the Company in its sole
discretion may classify such Mortgage on the date of its incurrence and later
reclassify all or a portion of such Mortgage in any manner that complies with
this Section 4.03.


 


Notwithstanding the restrictions described above, the Company and any
of its Significant Subsidiaries may create, incur, issue, assume or guarantee
Indebtedness secured by Mortgages without equally and ratably securing the
Notes, if at the time of such creation, incurrence, issuance, assumption or
guarantee, after giving effect thereto and to the retirement of any
Indebtedness which is concurrently being retired, the aggregate amount of all
such Indebtedness secured by Mortgages which would otherwise be subject to such
restrictions (other than any Indebtedness secured by Mortgages permitted as
described in clauses (i) through (x) of this Section 4.03) plus
all Attributable Debt of the Company and any of its Significant Subsidiaries in
respect of Sale and Leaseback Transactions (with the exception of such
transactions which are permitted under clauses (i) through (iv) of Section 4.04)
does not exceed 10% of Consolidated Assets. For avoidance of doubt, the
provisions in the foregoing sentence may be used concurrently in connection
with one or more of the Mortgages permitted as described in clauses (i) through
(x) of this Section 4.03 in any single transaction and may be
effectively deemed to have occurred after such other basket clause is used.


 


At the Company’s option, the Company may treat the entire commitment of
a revolving credit facility to be fully drawn on the date such agreement is
executed, and thereafter 


 


33

















 


the amount of such
commitment shall be deemed to be fully borrowed at all times for the purposes
of the foregoing covenant.


 


SECTION 4.04.              Limitation on Sale and
Leaseback Transactions.  The Company
will not, and will not permit any of its Significant Subsidiaries to, enter
into any Sale and Leaseback Transaction unless:


 


(i)            the
Sale and Leaseback Transaction is solely with the Company or any of its
Subsidiaries;


 


(ii)           the
lease is for a period not in excess of 36 months, including renewals;


 


(iii)          the
Company or such Significant Subsidiary would (at the time of entering into such
arrangement) be entitled as described in clauses (i) through (x) of Section 4.03,
without equally and ratably securing the Notes then outstanding under this
Indenture, to create, incur, issue, assume or guarantee Indebtedness secured by
a Mortgage on such property or assets in the amount of the Attributable Debt
arising from such Sale and Leaseback Transaction;


 


(iv)          the
Company or such Significant Subsidiary within 360 days after the sale of
property or assets in connection with such Sale and Leaseback Transaction is
completed, applies an amount equal to the greater of (A) the net proceeds
of the sale of such property or assets or (B) the fair market value of
such property or assets to (i) the retirement of Notes, other Funded Debt
of the Company ranking on a parity with the Notes or Funded Debt of a
Subsidiary or (ii) the acquisition of different property, facilities or
equipment or the expansion of the Company’s existing business, including the
acquisition of other businesses or capital expenditures; or


 


(v)           the
Attributable Debt of the Company and its Significant Subsidiary in respect of
such Sale and Leaseback Transaction and all other Sale and Leaseback
Transactions entered into after the Closing Date (other than any such Sale and
Leaseback Transaction as would be permitted as described in clauses (i) through
(iv) of this Section 4.04), plus the aggregate principal amount of
Indebtedness secured by Mortgages then outstanding (not including any such
Indebtedness secured by Mortgages described in clauses (i) through (x) of
Section 4.03) which do not equally and ratably secure the Notes (or secure
Notes on a basis that is prior to other Indebtedness secured thereby), would
not exceed 10% of Consolidated Assets.


 


SECTION 4.05.              Repurchase of Notes upon a
Change of Control.  The Company must
commence, within 30 days of the occurrence of a Change of Control, and
consummate an Offer to Purchase for all Notes then outstanding, at a purchase
price equal to 101% of their principal amount, plus accrued interest, if any,
to the Payment Date.  The Company will
not be required to make an Offer to Purchase upon the occurrence of a Change of
Control pursuant to this Section 4.05, if (i) a third party makes an
Offer to Purchase the Notes in the manner, at the times and otherwise in
compliance with this Indenture applicable to an Offer to Purchase and purchases
all Notes properly tendered and not withdrawn in such Offer to Purchase upon a
Change of Control, or (ii) a notice of redemption has been given pursuant
to 


 


34

















 


Section 3.04
 this Indenture unless and until there is
a default in payment of the applicable redemption price. An Offer to Purchase
upon the occurrence of a Change of Control may be made in advance of a Change
of Control if a definitive agreement to effect the Change of Control is in
place at the time such Offer to Purchase is made and the Offer to Purchase is
effected upon the consummation of the Change of Control, and such Offer to
Purchase may be conditional on the Change of Control.


 


SECTION 4.06.              Existence.  Subject to Articles Four and Five of this
Indenture, the Company shall do or cause to be done all things reasonably
necessary to preserve and keep in full force and effect its existence and the
existence of each of its Subsidiary Guarantors in accordance with the
respective organizational documents of the Company and each of its Subsidiary
Guarantors and the material rights (whether pursuant to charter, certificate of
formation, article of incorporation, partnership certificate, agreement,
statute or otherwise), licenses and franchises of the Company and each of its Subsidiary
Guarantors; provided that the
Company shall not be required to preserve any such right, license or franchise,
or the existence of any Subsidiary Guarantor, if the maintenance or
preservation thereof is no longer desirable in the Company’s judgment for the
conduct of the business of the Company and its Subsidiary Guarantors taken as a
whole.


 


SECTION 4.07.              Payment of Taxes and Other
Claims.  The Company shall pay or
discharge and shall cause each of its Subsidiary Guarantors to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges
levied or imposed upon (a) the Company or any such Subsidiary Guarantor, (b) the
income or profits of any such Subsidiary Guarantor which is a corporation or (c) the
property of the Company or any such Subsidiary Guarantor and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a lien upon the property of the Company or any such Subsidiary
Guarantor; provided that the
Company shall not be required to pay or discharge, or cause to be paid or
discharged, any such tax, assessment, charge or claim the amount, applicability
or validity of which is being contested in good faith by appropriate
proceedings and for which adequate reserves have been established.


 


SECTION 4.08.              Maintenance of Properties and
Insurance.  The Company shall cause
all properties used or useful in the conduct of its business or the business of
any of its Subsidiary Guarantors to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided
that nothing in this Section 4.08 shall prevent the Company or any
Subsidiary Guarantor from discontinuing the use, operation or maintenance of
any of such properties or disposing of any property or assets, if such
discontinuance or disposal is, in the judgment of the Company, desirable for
the Company on a consolidated basis.


 


The Company will provide or cause to be provided, for itself and its
Subsidiary Guarantors, insurance (including appropriate self-insurance) in
amounts and with such deductions and covering such risks as it reasonably deems
adequate, with recognized, financially sound insurers or with the government of
the United States of America, or an agency or 


 


35

















 


instrumentality
thereof, in such amounts, with such deductibles and by such methods as shall be
customary for corporations similarly situated in the industry in which the
Company or any such Subsidiary Guarantors, as the case may be, is then
conducting business.


 


SECTION 4.09.              Notice of Defaults.  In the event that any Officer becomes aware
of any Default or Event of Default, the Company shall deliver to the Trustee an
Officers’ Certificate, within 15 days of becoming aware of such Default or
Event of Default, specifying such Default or Event of Default, its status and
what action the Company is taking or proposes to take with respect thereto.


 


SECTION 4.10.              Compliance Certificates.  The Company shall deliver to the Trustee,
within 90 days after the end of the last fiscal quarter of each year, an
Officers’ Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal year.  Such certificate shall contain a
certification from the principal executive officer, principal financial officer
or principal accounting officer of the Company that a review has been conducted
of the activities of the Company and its Subsidiary Guarantors and the Company’s
and its Subsidiary Guarantor’s performance under this Indenture and that the
Company has complied with all conditions and covenants under this
Indenture.  If any of the officers of the
Company signing such certificate has knowledge of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default
and its status.  The first certificate to
be delivered pursuant to this Section 4.10 shall be for the fiscal year
beginning after 2008.


 


SECTION 4.11.              Commission Reports and Reports
to Holders.  Whether or not the
Company is required to file reports with the Commission, to the extent
permitted by the Commission, the Company shall file with the Commission all such
reports and other information as it would be required to file with the
Commission by Section 13(a) or 15(d) under the Exchange Act if
it were subject thereto within 30 days after the time periods specified by the
Commission’s rules and regulations. 
For as long as the Notes are outstanding, the Company shall supply the
Trustee and each Holder who so requests or shall supply to the Trustee for
forwarding to each such Holder, without cost to such Holder, copies of such
reports and other information.


 


SECTION 4.12.              Waiver of Stay, Extension or
Usury Laws.  The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


SECTION 4.13.              Issuances of Subsidiary
Guarantees.  The Company shall cause
each domestic Subsidiary of the Company that Guarantees Indebtedness of the
Company 


 


36

















 


under
the Credit Agreement to execute and deliver a supplemental indenture to this
Indenture providing for a Note Guarantee by such Subsidiary pursuant to Article Ten.


 


SECTION 4.14               Additional
Interest Notice.  In the event that the Company is required
to pay interest to holders of Notes at an increased rate pursuant to the terms
of the Notes, the Company will provide written notice (“Additional
Interest Notice”) to the
Trustee of its obligation to pay interest at an increased rate no later than
fifteen days prior to the proposed payment date for the interest, and the
Additional Interest Notice shall set forth the amount of interest to be paid by
the Company on such payment date. The Trustee shall not at any time be under
any duty or responsibility to any holder of Notes to determine the interest, or
with respect to the nature, extent, or calculation of the amount of interest
owed, or with respect to the method employed in such calculation of the
interest.


 


ARTICLE FIVE

SUCCESSOR CORPORATION


 


SECTION 5.01.              When Company or Subsidiary Guarantors May Merge, Etc. The Company will not consolidate with, merge with or into,
or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets (as an entirety or substantially an entirety in
one transaction or a series of related transactions) to, any Person or permit
any Person to merge with or into it unless:


 


(i)            it shall be the
continuing Person, or the Person (if other than it) formed by such
consolidation or into which it is merged or that acquired or leased such
property and assets (the “Surviving Person”), shall be a corporation,
limited liability company, trust or limited partnership organized and validly
existing under the laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the Company’s obligations under this Indenture
and the Notes;


 


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


 


(iii)          it delivers to the
Trustee an Officers’ Certificate stating that such consolidation, merger or
transfer and such supplemental indenture complies with this Section 5.01
and that all conditions precedent provided for herein relating to such
transaction have been complied with; and


 


(iv)          each Subsidiary
Guarantor, unless such Subsidiary Guarantor is the Person with which the
Company has entered into a transaction under this Section 5.01, shall have
by amendment to its Note Guarantee confirmed that its Note Guarantee shall
apply to the obligations of the Company or the Surviving Person in accordance
with the Notes and this Indenture.


 


Each Subsidiary Guarantor
(other than any Subsidiary Guarantor whose Note Guarantee is to be released in
accordance with the terms of its Note Guarantee and this Indenture, in
connection with the sale, exchange or transfer to any Person (other than an
Affiliate 


 


37

















 


of the Company) of all of
the Capital Stock of such Subsidiary Guarantor) will not, and the Company will
not cause or permit any Subsidiary Guarantor to, consolidate with or merge with
or into any Person other than the Company or any other Subsidiary Guarantor
unless:


 


(i)            such Subsidiary
Guarantor is the surviving corporation or the Person formed by or surviving any
such consolidation or merger (if other than the Subsidiary Guarantor) is a
corporation organized and existing under the laws of the United States or any
State thereof and such Person assumes by supplemental indenture all of the
obligations of the Subsidiary Guarantor on its Note Guarantee; and


 


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


 


SECTION 5.02.              Successor Substituted.  Upon any consolidation or merger, or any
sale, conveyance, transfer, lease or other disposition of all or substantially
all of the property and assets of the Company or any Subsidiary Guarantor in
accordance with Section 5.01 of this Indenture, the successor Person
formed by such consolidation or into which the Company or any Subsidiary Guarantor
is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to and be substituted for, and may exercise
every right and power of, the Company or such Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as
the Company or such Subsidiary Guarantor herein; provided that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the Notes
and such Subsidiary Guarantor shall not be released from its Note Guarantee in
the case of a lease of all or substantially all of its property and assets.


 


ARTICLE SIX

DEFAULT AND REMEDIES


 


SECTION 6.01.              Events of Default.  The following events will be defined as “Events
of Default” in this Indenture:


 


(a)           default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;


 


(b)           default in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period of
30 days;


 


(c)           (1) the Company defaults in the performance of or
breaches any other covenant or agreement in this Indenture or under the Notes
(other than a default specified in clause (a) or (b) above and
other than a default relating to the obligations of the Company under Section 4.11)
and such default or breach continues for a period of 60 consecutive days after
written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Notes;


 


(d)           there occurs with respect to any issue or issues of
Indebtedness of the Company, any Subsidiary Guarantor or any Significant
Subsidiary having an outstanding 


 


38

















 


principal amount of $75.0 million or
more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (A) an event of
default that has caused the holder thereof to declare such Indebtedness to be
due and payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration and/or (B) the failure to make a
principal payment at the final (but not any interim) fixed maturity and such
defaulted payment shall not have been made, waived or extended within 30 days
of such payment default;


 


(e)           any final judgment or order (not covered by insurance) for
the payment of money in excess of $75.0 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company, any Subsidiary Guarantor or any Significant Subsidiary and shall not
be paid or discharged, and there shall be any period of 60 consecutive
days following entry of the final judgment or order that causes the aggregate
amount for all such final judgments or orders outstanding and not paid or
discharged against all such Persons to exceed $75.0 million during which a stay
of enforcement of such final judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect;


 


(f)            a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company, any Subsidiary
Guarantor or any Significant Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company, any Subsidiary
Guarantor or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company, any Subsidiary Guarantor or any Significant
Subsidiary or (C) the winding-up or liquidation of the affairs of the
Company, any Subsidiary Guarantor or any Significant Subsidiary and, in each
case, such decree or order shall remain unstayed and in effect for a period of
60 consecutive days;


 


(g)           the Company, any Subsidiary Guarantor or any Significant
Subsidiary (A) commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such law, (B) consents
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company, any
Subsidiary Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company, any Subsidiary Guarantor or any
Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or


 


(h)           any Subsidiary Guarantor repudiates its obligations under
its Note Guarantee or, except as permitted by this Indenture, any Note
Guarantee is determined to be unenforceable or invalid or shall for any reason
cease to be in full force and effect.


 


SECTION 6.02.              Acceleration.  If an Event of Default (other than an Event
of Default specified in clause (f) or (g) of Section 6.01
that occurs with respect to the Company) 


 


39

















 


occurs
and is continuing under this Indenture, the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding, by written
notice to the Company (and to the Trustee if such notice is given by the
Holders), may, and the Trustee at the request of such Holders shall, declare
the principal of, premium, if any, and accrued interest on the Notes to be
immediately due and payable.  Upon a
declaration of acceleration, such principal of, premium, if any, and accrued
interest shall be immediately due and payable. 
In the event of a declaration of acceleration because an Event of
Default set forth in clause (d) of Section 6.01 has occurred and
is continuing, such declaration of acceleration shall be automatically
rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (d) of Section 6.01 shall be remedied or
cured by the Company, the relevant Subsidiary Guarantor or the relevant
Significant Subsidiary or waived by the holders of the relevant Indebtedness
within 60 days after the declaration of acceleration with respect thereto.  If an Event of Default specified in
clause (f) or (g) of Section 6.01 occurs with respect to
the Company, the principal of, premium, if any, and accrued interest on the
Notes then outstanding shall automatically become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.


 


Any time after such declaration of acceleration, but before a judgment
or decree for the payment of money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes by
written notice to the Company and to the Trustee, may waive all past defaults
and rescind and annul a declaration of acceleration and its consequences if (a) all
existing Events of Default, other than the nonpayment of the principal of,
premium, if any, and interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and (b) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.


 


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


 


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


 


SECTION 6.05.              Control by Majority.  The Holders of at least a majority in
aggregate principal amount of the outstanding Notes may direct the time, method
and place of 


 


40

















 


conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee. 
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability,
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes not joining in the giving of such direction and may
take any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.


 


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


 


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


 


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


 


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


 


(iv)          the Trustee does not
comply with the request within 60 days after receipt of the request and the
offer of indemnity; and


 


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


 


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


 


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


 


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


 


SECTION 6.08.              Collection Suit by Trustee.  If an Event of Default in payment of
principal, premium or interest specified in clause (a) or (b) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor of the
Notes for the whole amount of principal, premium, if any, and accrued interest
remaining unpaid, together with interest on overdue principal, premium, if any,
and, to the extent that payment of such interest is lawful, interest on 


 


41

















 


overdue
installments of interest, in each case at the rate specified in the Notes, and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


SECTION 6.09.              Trustee May File Proofs of
Claim.  The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07)
and the Holders allowed in any judicial proceedings relative to the Company (or
any other obligor of the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon conversion or exchange of the Notes or
upon any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07.  Nothing
herein contained shall be deemed to empower the Trustee to authorize or consent
to, or accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.


 


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


 


First:  to the
Trustee for all amounts due under Section 7.07;


 


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


 


Third:  to the
Company or any other obligors of the Notes, as their interests may appear, or
as a court of competent jurisdiction may direct.


 


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


 


SECTION 6.11.              Undertaking for Costs.   In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys’ fees,
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


 


42
















 


suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the outstanding Notes.


 


SECTION 6.12.              Restoration of Rights and Remedies.  If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then, and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.


 


SECTION 6.13.              Rights and Remedies Cumulative.  Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or wrongfully taken
Notes in Section 2.09, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


SECTION 6.14.              Delay or Omission Not Waiver.  No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. 
Every right and remedy given by this Article Six or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.


 


ARTICLE
SEVEN

TRUSTEE


 


SECTION 7.01.              General. 
The duties and responsibilities of the Trustee shall be as provided by
the TIA and as set forth herein. 
Notwithstanding the foregoing, 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 assured to it. 
Whether or not herein 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 Article Seven.


 


Except during the continuance of a Default, the
Trustee will not be liable, except for the performance of such duties as are
specifically set forth in this Indenture. 
If an Event of Default has occurred and is continuing, the Trustee will
use the same degree of care and skill in its exercise of the rights and powers
vested in it under this Indenture as a prudent person would exercise under the
circumstances in the conduct of such person’s own affairs.


 


43

















 


SECTION 7.02.              Certain Rights of Trustee.  Subject to TIA Sections 315(a) through
(d):


 


(i)            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, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person;


 


(ii)           before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, which shall conform to Section 11.04.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion;


 


(iii)          the
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any attorney or agent appointed with due
care by it hereunder;


 


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


 


(v)           the
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers or for
any action it takes or omits to take in accordance with the direction of the
Holders of a majority in aggregate principal amount of the outstanding Notes
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, provided that the
Trustee’s conduct does not constitute gross negligence or bad faith;


 


(vi)          whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon an Officers’ Certificate;


 


(vii)         the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
financial statement, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled,
at the Company’s sole cost and expense, to examine the books, records and
premises of the Company personally or by agent or attorney at the sole cost of
the 


 


44

















 


Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;


 


(viii)        the
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Notes unless either (1) a Responsible Officer shall
have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Company, any Subsidiary Guarantor or by any Holder of the Notes;


 


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


 


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


 


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


 


(xii)          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 7.03.              Individual Rights of Trustee.  The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.  Any Agent may do the same
with like rights.  However, the Trustee
is subject to TIA Sections 310(b) and 311.


 


SECTION 7.04.              Trustee’s Disclaimer.   The Trustee (i) makes no representation
as to the validity or adequacy of this Indenture or the Notes, (ii) shall
not be accountable for the Company’s use or application of the proceeds from
the Notes and (iii) shall not be responsible for any statement in the
Notes other than its certificate of authentication.


 


SECTION 7.05.              Notice of Default.  If any Default or any Event of Default occurs
and is continuing and if such Default or Event of Default is known to any
Responsible Officer of the Trustee, the Trustee shall mail to each Holder in
the manner and to the extent provided in TIA Section 313(c) notice of
the Default or Event of Default within 90 days after it occurs, unless such
Default or Event of Default has been cured; provided,
however, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as a trust 


 


45

















 


committee of Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders.


 


SECTION 7.06.              Reports by Trustee to Holders.  Within 60 days after each May 15,
beginning with May 15, 2008, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such May 15,
if required by TIA Section 313(a).


 


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


 


SECTION 7.07.              Compensation and Indemnity.   The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing, from time to time, for its
services hereunder.  The compensation of
the Trustee shall not be limited by any law on compensation of a trustee of an
express trust.  The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by the Trustee without negligence or bad faith on
its part.  Such expenses shall include
the reasonable compensation and expenses of the Trustee’s agents and counsel.


 


The Company and each Subsidiary Guarantor, jointly and
severally, shall indemnify each of the Trustee or any predecessor Trustee and
their agents for, and hold them harmless against, any and all loss, damage,
claims, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, or in connection with enforcing the provisions of this Section,
except to the extent that such loss, damage, claim, liability or expense is due
to its own negligence or bad faith.  The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder,
unless the Company is materially prejudiced thereby.  The Company shall defend the claim and the
Trustee shall cooperate in the defense provided,
however, that the Trustee shall
have the right to defend such claim if, upon the advice of counsel, its
interests may be prejudiced by the conduct of such defense by the Company.  Unless otherwise set forth herein, the
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel.  The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.


 


To secure the Company’s payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on
particular Notes.


 


If the Trustee incurs expenses or renders services
after the occurrence of an Event of Default specified in clause (f) or (g) of
Section 6.01, the expenses and the compensation for 


 


46

















 


the services will be
intended to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the relief of
debtors.


 


The provisions of this Section 7.07 shall survive
the resignation or removal of the Trustee and termination of this Indenture.


 


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


 


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


 


The Trustee may resign at any time by so notifying the
Company in writing at least 30 days prior to the date of the proposed
resignation.  The Holders of a majority
in principal amount of the outstanding Notes may remove the Trustee by so
notifying the Trustee in writing and may appoint a successor Trustee with the
consent of the Company.  The Company may
remove the Trustee if:  (i) the
Trustee is no longer eligible under Section 7.10; (ii) the Trustee is
adjudged a bankrupt or an insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.


 


If the Trustee resigns or is removed, or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee.  Within one
year after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.  If the successor Trustee does not deliver its
written acceptance required by the next succeeding paragraph of this Section 7.08
within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal amount of the
outstanding Notes may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.  Immediately after the delivery of such
written acceptance, subject to the lien provided in Section 7.07, (i) the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture.  A successor Trustee shall mail notice of its
succession to each Holder.  No successor
Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.


 


If the Trustee is no longer eligible under Section 7.10
or shall fail to comply with TIA Section 310(b), any Holder who satisfies
the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.  If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.08,
the Trustee shall resign immediately in the manner and with the effect provided
in this Section.


 


47

















 


The Company shall give notice of any resignation and
any removal of the Trustee and each appointment of a successor Trustee to all
Holders.  Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.


 


Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company’s obligation under Section 7.07 shall
continue for the benefit of the retiring Trustee.  Upon the Trustee’s resignation or removal,
the Company shall promptly pay the Trustee all amounts owed by the Company to
the Trustee.


 


SECTION 7.09.              Successor Trustee by Merger, Etc.  If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation or national banking association, the
resulting, surviving or transferee corporation or national banking association
without any further act shall be the successor Trustee with the same effect as
if the successor Trustee had been named as the Trustee herein, provided such
corporation shall be otherwise qualified and eligible under this Article.


 


SECTION 7.10.              Eligibility. 
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). 
The Trustee shall have a combined capital and surplus of at least $25
million as set forth in its most recent published annual report of condition
that is subject to the requirements of applicable federal or state supervising
or examining authority.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 7.10, the Trustee shall resign immediately in the manner and
with the effect specified in this Article.


 


SECTION 7.11.              Money Held in Trust.  The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree with the
Company.  Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law and except for money held in trust under Article Eight of this
Indenture.


 


ARTICLE
EIGHT

DISCHARGE OF INDENTURE


 


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


 


(i)            all
Notes previously authenticated and delivered (other than destroyed, lost or
stolen Notes that have been replaced or Notes that are paid pursuant to Section 4.01
or Notes for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section 8.05)
have been delivered to the Trustee for cancellation and the Company has paid
all sums payable by it hereunder; or


 


(ii)           (A) the
Notes mature within one year or all of them are to be called for redemption
within one year under arrangements satisfactory to the Trustee for giving the
notice of redemption, (B) the Company irrevocably deposits in trust with
the Trustee during such one-year period, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the 


 


48

















 


opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of any interest thereon, to
pay principal, premium, if, any, and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, (C) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (D) such
deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound and (E) the Company has delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel reasonably
acceptable to the Trustee, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.


 


With respect to the foregoing clause (i), the Company’s
obligations under Section 7.07 shall survive.  With respect to the foregoing
clause (ii), the Company’s obligations in Sections 2.02, 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 2.14, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall
survive until the Notes are no longer outstanding.  Thereafter, only the Company’s obligations in
Sections 7.07, 8.04, 8.05 and 8.06 shall survive.  After any such irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge of the Company’s
obligations under the Notes and this Indenture except for those surviving
obligations specified above.


 


SECTION 8.02.              Defeasance and Discharge of Indenture.  The Company will be deemed to have paid and
will be discharged from any and all obligations in respect of the Notes on the
123rd day after the deposit referred to in clause (A) of this Section 8.02,
and the provisions of this Indenture will no longer be in effect with respect
to the Notes (except for, among other matters, certain obligations to register
the transfer or exchange of the Notes, to replace stolen, lost or mutilated
Notes, to maintain paying agencies and to hold monies for payment in trust) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same if:


 


(A)          With
reference to this Section 8.02, the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10) and conveyed all right, title
and interest to the Trustee for the benefit of the Holders, under the terms of
an irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of, or premium,
if any, on the Notes and dedicated solely to, the benefit of the Holders, in
and to (1) money in an amount, (2) U.S. Government Obligations that
through the payment of interest and principal in respect thereof in accordance
with their terms, will provide, not later than one day before the due date of
any payment referred to in clause (A), money in an amount or (3) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without consideration
of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable by
the Trustee, the principal of, premium if any, and accrued interest on the
outstanding 


 


49

















 


Notes (i) on the Stated Maturity of such principal and interest;
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to the payment of
such principal, premium, if any, and interest with respect to the Notes or (ii) on
any earlier Redemption Date pursuant to the terms of this Indenture and the Notes;
provided that the Company has provided the Trustee with irrevocable
instructions to redeem all of the outstanding Notes on such Redemption Date;


 


(B)           The
Company has delivered to the Trustee (1) either (x) an Opinion of
Counsel to the effect that the beneficial owners of the Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
the Company’s exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred, which Opinion of Counsel shall be based upon (and
accompanied by a copy of) a ruling of the Internal Revenue Service to the same
effect unless there has been a change in applicable federal income tax law
after the Closing Date such that a ruling is no longer required or (y) a
ruling directed to the Trustee received from the Internal Revenue Service to
the same effect as the aforementioned Opinion of Counsel and (2) an
Opinion of Counsel to the effect that the creation of the defeasance trust does
not violate the Investment Company Act of 1940 and that after the passage of
123 days following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an “insider” for purposes of the
United States Bankruptcy Code, after one year following the deposit), the trust
funds will not be subject to the effect of Section 547 of the United
States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law in a case commenced by or against the Company under either such statute,
and either (I) the trust funds will no longer remain the property of the
Company (and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally) or (II) if a court were to rule under any such law
in any case or proceeding that the trust funds remained property of the
Company, (a) assuming such trust funds remained in the possession of the
Trustee prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders, a valid and perfected
security interest in such trust funds that is not avoidable in bankruptcy or
otherwise except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute and (b) the Holders will be
entitled to receive adequate protection of their interests in such trust funds
if such trust funds are used in such case or proceeding;


 


(C)           immediately
after giving effect to such deposit on a pro forma basis, no Event of Default, or event that
after the giving of notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such deposit,
and such deposit shall not result in a breach or violation of, or constitute a
default under, any other material agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;


 


50

















 


(D)          if
at such the Notes are then listed on a national securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Notes will not be delisted as a result of such deposit, defeasance and
discharge; and


 


(E)           the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein
relating to the defeasance contemplated by this Section 8.02 have been
complied with.


 


Notwithstanding the foregoing, prior to the end of the
123-day (or one-year) period referred to in clause (B)(2) of this Section 8.02,
none of the Company’s obligations under this Indenture shall be
discharged.  Subsequent to the end of
such 123-day (or one year) period with respect to this Section 8.02, the
Company’s obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.02, 8.04, 8.05, 8.06 and the rights, powers, trusts, duties and
immunities of the Trustee hereunder shall survive until the Notes are no longer
outstanding.  Thereafter, only the
Company’s obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall survive.  If and when a ruling from the Internal
Revenue Service or an Opinion of Counsel referred to in clause (B)(1) of
this Section 8.02 is able to be provided specifically without regard to,
and not in reliance upon, the continuance of the Company’s obligations under Section 4.01,
then the Company’s obligations under such Section 4.01 shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02.


 


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


 


SECTION 8.03.              Defeasance of Certain
Obligations.  The Company may omit to
comply with any term, provision or condition set forth in Sections 4.03 through
4.05 and 4.11 and such omission shall be deemed not to be an Event of Default
under clause (c) of Section 6.01 and clauses (d) and (e) of
Section 6.01 of this Indenture, shall be deemed not to be Events of
Default, in each case with respect to the outstanding Notes if:


 


(i)            with
reference to this Section 8.03, the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10) and conveyed all right, title
and interest to the Trustee for the benefit of the Holders, under the terms of
an irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the benefit
of the Holders, in and to (A) money in an amount, (B) U.S. Government
Obligations that, through the payment of interest, premium, if any, and
principal in respect thereof in accordance with their terms, will provide, not
later than one day before the due date of any payment referred to in this
clause (i), money in an amount or (C) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, without consideration of the reinvestment of
such interest and after payment of all federal, state and local taxes or 


 


51

















 


other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and interest on the outstanding
Notes (i) on the Stated Maturity of such principal or interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal, premium, if any, and
interest with respect to the Notes or (ii) on any earlier Redemption Date
pursuant to the terms of this Indenture and the Notes; provided that the Company has provided the
Trustee with irrevocable instructions to redeem all of the outstanding Notes on
such redemption Date;


 


(ii)           the
Company has delivered to the Trustee an Opinion of Counsel to the effect that (A) the
creation of the defeasance trust does not violate the Investment Company Act of
1940, (B) after the passage of 123 days following the deposit (except,
with respect to any trust funds for the account of any Holder who may be deemed
to be an “insider” for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to the effect
of Section 547 of the United States Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute, and either (1) the trust funds will no
longer remain the property of the Company (and therefore will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally) or (2) if a court were to rule under
any such law in any case or proceeding that the trust funds remained property
of the Company, (x) assuming such trust funds remained in the possession
of the Trustee prior to such court ruling to the extent not paid to the
Holders, the Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable in
bankruptcy or otherwise (except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds accruing after
the commencement of a case under such statute) and (y) the Holders will be
entitled to receive adequate protection of their interests in such trust funds
if such trust funds are used in such case or proceeding, (C) the
beneficial owners of the Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of certain
covenants and Events of Default and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred and (D) the
Trustee, for the benefit of the Holders, has a valid first-priority security
interest in the trust funds;


 


(iii)          immediately
after giving effect to such deposit on a pro forma basis, no Default or Event
of Default shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after such date of such deposit, and
such deposit shall not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;


 


(iv)          if
the Notes are then listed on a national securities exchange, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Notes
will not be delisted as a result of such deposit, defeasance and discharge; and


 


52

















 


(v)           the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein
relating to the defeasance contemplated by this Section 8.03 have been
complied with.


 


SECTION 8.04.              Application of Trust Money.  Subject to Section 8.06, the Trustee or
Paying Agent shall hold in trust money or U.S. Government Obligations deposited
with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, and
shall apply the deposited money and the money from U.S. Government Obligations
in accordance with the Notes and this Indenture to the payment of principal of,
premium, if any, and interest on the Notes; but such money need not be
segregated from other funds except to the extent required by law.


 


SECTION 8.05.              Repayment to Company.  Subject to any applicable escheat and
abandoned property laws and Sections 7.07, 8.01, 8.02 and 8.03, the Trustee and
the Paying Agent shall promptly pay to the Company upon request set forth in an
Officers’ Certificate any excess money held by them at any time and thereupon
shall be relieved from all liability with respect to such money.  The Trustee and the Paying Agent shall pay to
the Company upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years; provided that the Trustee or Paying Agent
before being required to make any payment may cause to be published at the
expense of the Company once in a newspaper of general circulation in The City
of New York or mail to each Holder entitled to such money at such Holder’s
address (as set forth in the Security Register) notice that such money remains
unclaimed and that after a date specified therein (which shall be at least 30
days from the date of such publication or mailing) any unclaimed balance of
such money then remaining will be repaid to the Company.  After payment to the Company, Holders
entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.


 


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


 


ARTICLE
NINE

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


SECTION 9.01.              Without Consent of Holders.  The Company, when authorized by a resolution
of its Board of Directors (as evidenced by a Board Resolution 


 


53

















 


delivered to the Trustee), the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without notice to or the consent of any Holder to:


 


(1)           cure
any ambiguity, defect or inconsistency in this Indenture;


 


(2)           comply
with Article Five or Section 4.13;


 


(3)           comply
with any requirements of the Commission in connection with the qualification of
this Indenture under the TIA or in order to maintain such qualification;


 


(4)           evidence
and provide for the acceptance of appointment hereunder by a successor Trustee;


 


(5)           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 and in the
Notes;


 


(6)           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 Company;


 


(7)           to
add additional Events of Default;


 


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


 


(9)           to
conform the text of this Indenture or the Notes to any provision of the “Description
of Notes” in the Company’s Offering Memorandum dated December 10, 2007
related to the Notes, to the extent that such provision in such “Description of
Notes” was intended to be a substantially verbatim recitation of a provision of
this Indenture or the Notes;


 


(10)         to
allow any Subsidiary Guarantor to execute a supplemental indenture and a Note
Guarantee with respect to the Notes or to release a Guarantee or a security
interest under the Notes or a Note Guarantee in accordance with the terms of
this Indenture;


 


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


 


(12)         to
make any change that would provide any additional rights or benefits to the
Holders;


 


(13)         to
comply with the rules of any applicable securities depository;


 


(14)         provide
for the issuance of Additional Notes; or


 


(15)         make
any change that does not materially and adversely affect the rights of Holders.


 


54

















 


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


 


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


 


(i)            change
the Stated Maturity of the principal of, or any installment of interest on, any
Note;


 


(ii)           reduce
the principal amount of, or premium, if any, or interest on, any Note;


 


(iii)          change
the optional redemption dates or optional redemption prices of the Notes from
that stated in Section 3.01;


 


(iv)          change
the place or currency of payment of principal of, or premium, if any, or
interest on, any Note;


 


(v)           impair
the right to institute suit for the enforcement of any payment on or after the
Stated Maturity (or, in the case of redemption, on or after the Redemption
Date) of any Note;


 


(vi)          waive
a Default in the payment of principal of, premium, if any, or interest on the
Notes;


 


(vii)         modify
any of the provisions of this Section 9.02, except to increase any such
percentage 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;


 


(viii)        release
any Subsidiary Guarantor from its Note Guarantee, except as provided in this
Indenture;


 


(ix)           amend,
change or modify the obligation of the Company to make and consummate an Offer
to Purchase under Section 4.05 after a Change of Control has occurred,
including, in each case, amending, changing or modifying any definition
relating thereto; or


 


(x)            reduce
the percentage or aggregate principal amount of outstanding Notes the consent
of whose Holders is necessary for waiver of compliance with certain provisions
of this Indenture or for waiver of certain Defaults.


 


55

















 


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


 


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


 


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


 


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


 


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


 


SECTION 9.04.              Notation on or Exchange of Notes.  If an amendment, supplement or waiver changes
the terms of a Note, the Trustee may require the Holder to deliver such Note to
the Trustee.  At the Company’s expense,
the Trustee may place an appropriate notation on the Note about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Note thereafter authenticated. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms. 
Failure to make the appropriate notation, or issue a new Note, shall not
affect the validity and effect of such amendment, supplement or waiver.


 


SECTION 9.05.              Trustee to Sign Amendments, Etc.  The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating 


 


56

















 


that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture and that it will be valid and binding
upon the Company.  Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or waiver
that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.


 


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


 


ARTICLE
TEN

GUARANTEE OF NOTES


 


SECTION 10.01.            Note Guarantee. 
Subject to the provisions of this Article Ten, each Subsidiary
Guarantor hereby, jointly and severally, fully and unconditionally Guarantees
to each Holder of Notes hereunder and to the Trustee on behalf of the
Holders:  (i) the due and punctual
payment of the principal of, premium, if any, on and interest on each Note,
when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of and interest, if any, on the Notes, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee, all in accordance with the terms of such Note and
this Indenture and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed 
in accordance with the terms of the extension or renewal, at Stated
Maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in the next succeeding paragraph.


 


Each Subsidiary Guarantor and by its acceptance hereof
each Holder hereby confirms that it is the intention of all such parties that
the Guarantee by any Subsidiary Guarantor pursuant to its Note Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the United
States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar Federal or state law.  To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under its Note Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of each Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Note Guarantee or pursuant to the following paragraph,
result in the obligations of such Subsidiary Guarantor under its Note Guarantee
not constituting such fraudulent transfer or conveyance.


 


In order to provide for just and equitable
contribution among the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the event any payment or
distribution is made by any Subsidiary Guarantor (a “Funding Guarantor”)
under its Note Guarantee, such Funding Guarantor shall be entitled to a
contribution from all other Subsidiary 


 


57

















 


Guarantors in a pro rata amount based on the Adjusted Net
Assets of each Subsidiary Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company’s obligations with respect to the Notes or any other
Subsidiary Guarantor’s obligations with respect to its Note Guarantee.  “Adjusted Net Assets” of such
Subsidiary Guarantor at any date shall mean the lesser of the amount by which (x) the
fair value of the property of such Subsidiary Guarantor exceeds the total
amount of liabilities, including, without limitation, contingent liabilities
(after giving effect to all other fixed and contingent liabilities incurred or
assumed on such date), but excluding liabilities under the Note Guarantee, of
such Guarantor at such date and (y) the present fair salable value of the
assets of such Subsidiary Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Subsidiary Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any Subsidiary of such Subsidiary Guarantor in respect of the obligations of
such Subsidiary under the Note Guarantee of such Subsidiary Guarantor),
excluding debt in respect of its Note Guarantee of such Subsidiary Guarantor),
excluding debt in respect of its Note Guarantee, as they become absolute and
matured.


 


Each Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, the benefit of discussion, protest or notice with respect
to any such Note or the debt evidenced thereby and all demands whatsoever (except
as specified above), and covenants that this Note Guarantee will not be
discharged as to any such Note except by payment in full of the principal
thereof and interest thereon and as provided in Sections 8.01,  8.02 and 8.03. In the event of any declaration
of acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purposes of this Article Ten.  In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article Six,
the Trustee shall promptly make a demand for payment on the Notes under the
Note Guarantee provided for in this Article Ten.


 


The obligations of each Subsidiary Guarantor under its
Note Guarantee are independent of the obligations Guaranteed by the Subsidiary
Guarantor hereunder, and a separate action or actions may be brought and
prosecuted by the Trustee on behalf of, or by, the Holders, subject to the
terms and conditions set forth in this Indenture, against any Subsidiary
Guarantor to enforce this Note Guarantee, irrespective of whether any action is
brought against the Company or whether the Company is joined in any such action
or actions.


 


If the Trustee or the Holder is required by any court
or otherwise to return to the Company or any Subsidiary Guarantor, or any
custodian, receiver, liquidator, trustee, sequestrator or other similar
official acting in relation to Company or any Subsidiary Guarantor, any amount
paid to the Trustee or such Holder in respect of a Note, this Note Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect.  Each Subsidiary Guarantor
further agrees, to the fullest extent that it may lawfully do so, that, as
between it, on the one hand, and the Holders and the Trustee, on the other
hand, the maturity of the obligations Guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition extant under any 


 


58

















 


applicable bankruptcy law
preventing such acceleration in respect of the obligations Guaranteed hereby.


 


Each Subsidiary Guarantor hereby irrevocably waives any
claim or other rights which it may now or hereafter acquire against the Company
or any other Subsidiary Guarantor that arise from the existence, payment,
performance or enforcement of its obligations under this Note Guarantee and
this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of the Holders against the Company or any
Subsidiary Guarantor or any collateral which any such Holder or the Trustee on
behalf of such Holder hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company or a Subsidiary
Guarantor, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights.  If any amount shall be paid to a
Subsidiary Guarantor in violation of the preceding sentence and the principal
of, premium, if any, and accrued interest on the Notes shall not have been paid
in full, such amount shall be deemed to have been paid to such Subsidiary
Guarantor for the benefit of, and held in trust for the benefit of, the Holders,
and shall forthwith be paid to the Trustee for the benefit of the Holders to be
credited and applied upon the principal of, premium, if any, and accrued
interest on the Notes.  Each Subsidiary
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Notes pursuant to this Indenture and that the waivers set
forth in this Section 10.01 are knowingly made in contemplation of such
benefits.


 


The Note Guarantee set forth in this Section 10.01
shall not be valid or become obligatory for any purpose with respect to a Note
until the certificate of authentication on such Note shall have been signed by
or on behalf of the Trustee.


 


SECTION 10.02.            Obligations Unconditional.  Nothing contained in this Article Ten or
elsewhere in this Indenture or in the Notes is intended to or shall impair, as
among any Subsidiary Guarantor and the holders of the Notes, the obligation of
such Subsidiary Guarantor, which is absolute and unconditional, upon failure by
the Company to pay to the holders of the Notes the principal of, premium, if
any, and interest on the Notes as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of such Subsidiary Guarantor, nor
shall anything herein or therein prevent any Holder or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture.


 


Without limiting the foregoing, nothing contained in
this Article Ten will restrict the right of the Trustee or the Holders to
take any action to declare the Note Guarantee to be due and payable prior to
the Stated Maturity of any Notes pursuant to Section 6.02 or to pursue any
rights or remedies hereunder.


 


SECTION 10.03.            Release of Note Guarantees.  The Note Guarantee issued by any Subsidiary
Guarantor will be automatically and unconditionally released and discharged
upon:


 


59

















 


(i)            any sale, exchange
or transfer to any Person (other than a Subsidiary of the Company) of any of
the Capital Stock of such Subsidiary Guarantor;


 


(ii)           in the event all or
substantially all the assets or Capital Stock of a Subsidiary Guarantor are
sold or otherwise transferred, by way of merger, consolidation or otherwise, to
a Person in compliance with the terms of this Indenture;


 


(iii)          the release or
discharge of the guarantee by such Subsidiary Guarantor of Indebtedness of the
Company or the repayment of the Indebtedness (or Attributable Debt) of such
Subsidiary Guarantor, in each case which resulted in the obligation to
Guarantee the Notes  or if such
Subsidiary no longer Guarantees the Credit Agreement; provided that such
Subsidiary Guarantor has not Guaranteed any other Funded Debt of the Company or
incurred or otherwise become liable for any other Indebtedness (or Attributable
Debt) which would have resulted in an obligation to Guarantee the Notes;


 


(iv)          if
the Notes are rated Investment Grade by both Rating Agencies and no Default or
Event of Default shall have occurred and then be continuing;


 


(v)           in
the event of liquidation or dissolution of such Subsidiary or Guarantor; or


 


(vi)          if
the Notes are defeased or discharged in accordance with the terms of this
Indenture.


 


SECTION 10.04.            Notice to Trustee. 
Each Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Note Guarantee
pursuant to the provisions of this Article Ten.


 


SECTION 10.05.            This Article Not to Prevent Events of Default.  The failure to make a payment on account of
principal of, premium, if any, or interest on the Notes by reason of any
provision of this Article Ten will not be construed as preventing the
occurrence of an Event of Default.


 


ARTICLE
ELEVEN

MISCELLANEOUS


 


SECTION 11.01.            Trust Indenture Act of 1939.  Prior to the effectiveness of the
Registration Statement, this Indenture shall incorporate and be governed by the
provisions of the TIA that are required to be part of and to govern indentures
qualified under the TIA.  After the
effectiveness of the Registration Statement, this Indenture shall be subject to
the provisions of the TIA that are required to be a part of this Indenture and
shall, to the extent applicable, be governed by such provisions.


 


SESCTION 11.02.         Notices.  Any
notice, request or communication shall be sufficiently given if in writing and
delivered in person, mailed by first-class mail or sent by telecopier
transmission addressed as follows:


 


60

















 


if to the Company:


 


SPX Corporation


13515 Ballantyne Corporate Place,


Charlotte, North Carolina 28277


Telecopier No.: 
(704) 752-7436


 


Attention: 
Office of Assistant General Counsel, SEC Reporting


 


if to the Trustee:


 


U.S. Bank National Association

Corporate Trust Services

Hearst Tower - 214 N. Tryon Street, 27th Floor

Charlotte, NC 28202


Telecopier No.: 
(704) 335-4676


 


Attention: 
Katherine A. Esber, CCTS,

Vice President & Account Manager


 


The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.


 


Any notice or communication mailed to a Holder shall
be mailed to it at its address as it appears on the Security Register by
first-class mail and shall be sufficiently given to the Holder if so mailed
within the time prescribed.  Any notice
or communication shall also be so mailed to any Person described in TIA Section 313(c),
to the extent required by the TIA. 
Copies of any such communication or notice to a Holder shall also be
mailed to the Trustee and each Agent at the same time.


 


Failure to mail a notice or communication to a Holder
as provided herein or any defect in any such notice or communication shall not
affect its sufficiency with respect to other Holders.  Except for a notice to the Trustee, which is
deemed given only when received, and except as otherwise provided in this
Indenture, if a notice or communication is mailed in the manner provided in
this Section 11.02, it is duly given, whether or not the addressee
receives it.


 


Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice.  Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.


 


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


 


61

















 


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


 


SECTION 11.03.            Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:


 


(i)            an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and


 


(ii)           an
Opinion of Counsel stating that, in the opinion of such Counsel, all such
conditions precedent have been complied with.


 


SECTION 11.04.            Statements Required in
Certificate or Opinion.   Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


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


 


(ii)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based;


 


(iii)          a
statement that, in the opinion of each such person, the person has made such
examination or investigation as is necessary to enable the person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(iv)          a
statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers’ Certificate or certificates of public
officials.


 


SECTION 11.05.            Rules by Trustee, Paying Agent or Registrar.  The Trustee may make reasonable rules for
action by or at a meeting of Holders. 
The Paying Agent or Registrar may make reasonable rules for its
functions.


 


SECTION 11.06.            Payment Date Other Than a Business Day.  If an Interest Payment Date, Redemption Date,
Payment Date, Stated Maturity or date of maturity of any Note shall not be a
Business Day, then payment of principal of, premium, if any, or interest on
such Note, as the case may be, need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Interest Payment Date, Payment Date or Redemption Date, or at the Stated
Maturity or date of maturity of such Note; provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Payment Date, Redemption Date, Stated Maturity or date of
maturity, as the case may be.


 


62
















 


SECTION 11.07.            Governing Law. 
This Indenture and the Notes shall be governed by the laws of the State
of New York.  The Trustee, the Company
and the Holders agree to submit to the jurisdiction of the courts of the State
of New York in any action or proceeding arising out of or relating to this
Indenture or the Notes.


 


SECTION 11.08.            No Adverse Interpretation of
Other Agreements.  Any other
indenture, loan or debt agreement of the Company may not be used to interpret
this Indenture.


 


SECTION 11.09.            No Recourse Against Others.  No recourse for the payment of the principal
of, premium, if any, or interest on any of the Notes, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company contained in this Indenture or
in any of the Notes, or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator or against any past, present or
future partner, stockholder, other equityholder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.


 


SECTION 11.10.            Successors. 
All agreements of the Company in this Indenture and the Notes shall bind
its successors.  All agreements of the
Trustee in this Indenture shall bind its successor.


 


SECTION 11.11.            Duplicate Originals.  The parties may sign any number of copies of
this Indenture.  Each signed copy shall
be an original, but all of them together represent the same agreement.


 


SECTION 11.12.            Separability.  
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 11.13.            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 hereof and
shall in no way modify or restrict any of the terms and provisions hereof.


 


SECTION 11.14.            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.


 


63

















 


SIGNATURES


 


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


 


 


 


	
   

  	
  SPX CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Senior Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
  ENGINEERING
  ANALYSIS ASSOCIATES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  
	
   

  	
  FLAIR
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Executive Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KAYEX CHINA
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LDS TEST AND
  MEASUREMENT LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE MARLEY
  COMPANY LLC

  
	
   

  	
  By SPX
  Corporation, as Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Senior Vice President & Secretary

  
										



 


64

















 


	
   

  	
  MARLEY
  ENGINEERED PRODUCTS LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Executive Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  MARLEY-WYLAIN COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Coolican

  	
   

  
	
   

  	
   

  	
  Name: Mark Coolican

  
	
   

  	
   

  	
  Title: Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MCT SERVICES LLC

  
	
   

  	
  By: SPX Cooling
  Technologies, Inc. 

  
	
   

  	
  as Sole Managing
  Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Executive Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  P.S.D., INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPX COOLING
  TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Executive Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TCI
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALLEY FORGE
  TECHNICAL INFORMATION SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
   

  	
  Title: Secretary

  
					



 


65

















 




	
  WAUKESHA
  ELECTRIC SYSTEMS, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kevin L. Lilly

  	
   

  
	
   

  	
  Name: Kevin L. Lilly

  
	
   

  	
  Title: Vice President & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  XCEL ERECTORS,
  INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Robert B. Foreman

  	
   

  
	
   

  	
  Name: Robert B. Foreman

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
  U.S. BANK NATIONAL ASSOCIATION

  As Trustee

  
	
   

  	
   

  
	
  By:

  	
  /s/ Katherine A. Esber

  	
   

  
	
   

  	
  Name: Katherine A. Esber

  
	
   

  	
  Title: Authorized Signer

  
	
   

  	
   

  
	
   

  	
   

  
				






 


66

















 


EXHIBIT A


 


[APPLICABLE LEGENDS]


 


[FACE OF NOTE]


 


SPX CORPORATION


 


7 5/8% Senior Note due 2014


 


[CUSIP
No.][ISIN][                    ]


 


	
  No. 1

  	
   

  	
  $

  



 


SPX CORPORATION a Delaware corporation (the “Company”,
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to
                            ,
or its registered assigns, the principal sum of             Dollars
($                  )
on December 15, 2014.


 


Interest Payment Dates: June 15 and December 15,
commencing                    .


 


Regular Record Dates: June 1 and December 1.


 


Engineering Analysis Associates, Inc., a Michigan
corporation, Flair Corporation, a Delaware corporation, Kayex China Holdings, Inc.,
a Delaware corporation, LDS Test and Measurement LLC, a Delaware limited
liability company, The Marley Company LLC, a Delaware limited liability
company, Marley Engineered Products LLC, a Delaware limited liability company,
The Marley-Wylain Company, a Delaware corporation, MCT Services LLC, a Delaware
limited liability company, P.S.D., Inc., an Ohio Corporation, SPX Cooling
Technologies, Inc., a Delaware corporation, TCI International, Inc.,
a Delaware corporation, Valley Forge Technical Information Services, Inc.,
a Michigan corporation, Waukesha Electric Systems, Inc., a Wisconsin
corporation and XCel Erectors, Inc., a Delaware corporation, and any
future Subsidiary Guarantors (collectively, the “Subsidiary Guarantors,”
which term includes any successors under the Indenture hereinafter referred to
and any Subsidiary Guarantor that provides a Note Guarantee pursuant to the
Indenture), has fully and unconditionally guaranteed the payment of principal
of premium, if any, and interest on the Notes.


 


Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.  Capitalized terms used herein have the meanings
assigned to them in the within-mentioned Indenture unless otherwise indicated.


 


A-1

















 


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


 




	
  SPX CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  






 


 


(Trustee’s Certificate of Authentication)


 


This is one of the 7 5/8% Senior Notes due 2014
described in the within-mentioned Indenture.


 




	
  Date:

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signer

  






 


A-2

















 


[REVERSE SIDE OF NOTE]


 


SPX CORPORATION


 


7 5/8% Senior Note due 2014


 


1.             Principal and Interest.


 


The Company will pay the principal of this Note on December 15,
2014.


 


The Company promises to pay interest on the principal
amount of this Note on each Interest Payment Date, as set forth below, at a
rate of 7 5/8% per annum, subject to increase as described below.


 


Interest will be payable semiannually in cash in
arrears (to the holders of record of the Notes at the close of business on the June 1
or December 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing            
..


 


If neither an exchange offer (the “Exchange Offer”)
registered under the Securities Act is consummated nor a shelf registration
statement (the “Shelf Registration Statement”) under the Securities Act with
respect to resales of the Notes is declared effective by the Commission on or
before 150 days after February 28, 2009 (the “Exchange Date”) in
accordance with the terms of the Registration Rights Agreement dated December 13,
2007 among the Company, the Initial Subsidiary Guarantors and Banc of America
Securities LLC, J.P. Morgan Securities, Inc., Citigroup Global Markets
Inc., Scotia Capital (USA) Inc., Commerzbank Capital Markets Corp., Deutsche
Bank Securities Inc. and Mitsubishi UFJ Securities International plc, then the
annual interest rate borne by the Notes shall be increased by 0.5% from the
rate shown above, such additional interest accruing from and including the date
on which any such registration default has occurred, payable in cash
semiannually, in arrears, on each Interest Payment Date, until the consummation
of the Exchange Offer or the effectiveness of the Shelf Registration
Statement.  The Holder of this Note is
entitled to the benefits of such Registration Rights Agreement. The Company
will not be required to consummate the Exchange Offer if (i) the Notes are
freely tradable before the Exchange Date, and (ii) prior to the Exchange
Date and thereafter, each Holder, upon request, can exchange his Note for a new
Note without restrictive legends.


 


Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from                ;
provided that, if there is no
existing default in the payment of interest and this Note is authenticated
between a Regular Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such Interest
Payment Date.  Interest will be computed
on the basis of a 360-day year of twelve 30-day months.


 


The Company shall pay interest on overdue principal
and premium, if any, and interest on overdue installments of interest, to the
extent lawful, at a rate per annum that is 2% in excess of the rate otherwise
payable.


 


2.             Method of Payment.


 


 


A-3

















 


The Company will pay interest (except defaulted
interest) on the principal amount of the Notes as provided above on each June 15
and December 15, commencing               
to the persons who are Holders (as reflected in the Security Register at
the close of business on the June 1 or December 1 immediately
preceding the Interest Payment Date), in each case, even if the Note is
cancelled on registration of transfer or registration of exchange after such
record date; provided that, with
respect to the payment of principal, the Company will make payment to the
Holder that surrenders this Note to a Paying Agent on or after December 15,
2014.


 


This Note is a “book-entry” note and is being
registered in the name of Cede & Co. as nominee of The Depositary
Trust Company (“DTC”), a clearing agency. 
As long as this Note is registered in the name of DTC or its nominee,
the Trustee will make payments of principal, premium, if any, and interest on
this Note by wire transfer of immediately available funds to DTC or its
nominee.  With respect to any Note that
is not registered in the name of DTC or its nominee, the Company may pay
principal, premium, if any, and interest by its check payable in such money of
the United States that at the time of payment is legal tender for payment of
public and private debts.  It may mail an
interest check to a Holder’s registered address (as reflected in the Security
Register).  If a payment date is a date
other than a Business Day at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day and no interest shall
accrue for the intervening period.


 


The Notes may be exchanged or transferred at the
office or agency of the Company. 
Initially, the paying agent office of the Trustee will serve as such
office.


 


3.             Paying Agent and Registrar.


 


Initially, the Trustee will act as authenticating agent,
Paying Agent and Registrar.  The Company
may change any authenticating agent, Paying Agent or Registrar without
notice.  The Company, any Subsidiary or
any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar.


 


4.             Indenture; Limitations.


 


The Company issued the Notes under an Indenture dated
as of December 13, 2007 (the “Indenture”), among the Company, the
Initial Subsidiary Guarantors and U.S. Bank National Association, as trustee
(the “Trustee”).  Capitalized
terms herein are used as defined in the Indenture unless otherwise
indicated.  The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. 
The Notes are subject to all such terms, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of all such terms.  To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture shall control.


 


The Notes are general unsecured unsubordinated
obligations of the Company.


 


The Company may, subject to and applicable law, issue
additional Notes under the Indenture. 
The Indenture does not limit the amount of Notes that may be issued.


 


A-4

















 


5.             Optional Redemption.


 


Except as set forth below, the Company may
not redeem the Notes in whole or in part at any time prior to the Maturity
Date. The Company may redeem the Notes in whole or in part at any time prior to
the Maturity Date, at a Redemption Price equal to 100% of the principal amount
thereof plus the Applicable Premium as of the Redemption Date, plus accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date).


 


At any time prior to December 15, 2010,
the Company may redeem up to 35% of the aggregate principal amount of the Notes
(including any Additional Notes) with the Net Cash Proceeds of one or more
sales of common stock of the Company at any time as a whole or from time to
time in part, at a Redemption Price (expressed as a percentage of principal
amount) of 107.625%, plus accrued and unpaid interest thereon, if any, to the
Redemption Date (subject to the rights of Holders of record on the relevant
Regular Record Date that is prior to the Redemption Date to receive interest
due on an Interest Payment Date); provided
that (i) at least 65% of the aggregate principal amount of Notes
originally issued on the Closing Date remains outstanding after each such
redemption and (ii) notice of any such redemption is mailed within 60 days
after each such sale of common stock.


 


Notes in original denominations larger than $2,000 may
be redeemed in part.  On and after the
Redemption Date, interest ceases to accrue on Notes or portions of Notes called
for redemption, unless the Company defaults in the payment of the Redemption
Price.


 


6.             Repurchase upon Change of Control.


 


Upon the occurrence of any Change of Control, each
Holder shall have the right to require the repurchase of its Notes by the
Company in cash pursuant to the offer described in the Indenture at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (the “Payment Date”).


 


A notice of such Change of Control will be mailed
within 30 days after any Change of Control occurs to each Holder at its last
address as it appears in the Security Register. 
Notes in original denominations larger than $2,000 may be sold to the
Company in part.  On and after the
Payment Date, interest ceases to accrue on Notes or portions of Notes
surrendered for purchase by the Company, unless the Company defaults in the
payment of the purchase price.


 


7.             Denominations; Transfer;
Exchange.


 


The Notes are in registered form without coupons in
denominations of $2,000 of principal amount and multiples of $1,000 in excess
thereof.  A Holder may register the
transfer or exchange of Notes in accordance with the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture.  The Registrar need not register the transfer
or exchange of any Notes selected for redemption.  Also, it need not register the transfer or
exchange of any Notes for a period of 15 days before the day of mailing of a
notice of redemption of Notes selected for redemption.


 


A-5

















 


8.             Persons Deemed Owners.


 


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


 


9.             Unclaimed Money.


 


Subject to any applicable escheat and abandoned
property laws, if money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request.  After that, Holders entitled to the money must
look to the Company for payment, unless an abandoned property law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.


 


10.           Discharge Prior to Redemption or
Maturity.


 


If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or
maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain provisions thereof, and (b) to
the Stated Maturity, the Company will be discharged from certain covenants set
forth in the Indenture.


 


11.           Amendment; Supplement; Waiver.


 


Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding.  Without notice to or
the consent of any Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency
and make any change that does not materially and adversely affect the rights of
any Holder.


 


12.           Restrictive Covenants.


 


The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries, among other things, suffer to
exist or incur Liens, enter into sale-leaseback transactions, or merge,
consolidate or transfer substantially all of its assets.  Within 90 days after the end of the last
fiscal quarter of each year, the Company shall deliver to the Trustee an
Officer’s Certificate stating whether or not the signers thereof know of any
Default or Event of Default under such restrictive covenants.


 


13.           Successor Persons.


 


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


 


14.           Defaults and Remedies.


 


A-6

















 


Any of the following events constitutes an “Event
of Default” under the Indenture:


 


(1) default in
the payment of principal of (or premium, if any, on) any Note when the same
becomes due and payable at maturity, upon acceleration, redemption or
otherwise;


 


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


 


(3) the Company
defaults in the performance of or breaches any other covenant or agreement in
the Indenture or under the Notes (other than a default specified in
clause (a) or (b) above and other than a default related to the
obligations of the Company under Section 4.11 of the Indenture) and such
default or breach continues for a period of 60 consecutive days after written
notice by the Trustee or the Holders of 25% or more in aggregate principal
amount of the Notes;


 


(4) there
occurs with respect to any issue or issues of Indebtedness of the Company, any
Subsidiary Guarantor or any Significant Subsidiary having an outstanding
principal amount of $75.0 million or more in the aggregate for all such issues
of all such Persons, whether such Indebtedness now exists or shall hereafter be
created, (A) an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its Stated Maturity
and such Indebtedness has not been discharged in full or such acceleration has
not been rescinded or annulled within 30 days of such acceleration and/or (B) the
failure to make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or
extended within 30 days of such payment default;


 


(5) any final
judgment or order (not covered by insurance) for the payment of money in excess
of $75.0 million in the aggregate for all such final judgments or orders
against all such Persons (treating any deductibles, self-insurance or retention
as not so covered) shall be rendered against the Company, any Subsidiary
Guarantor or any Significant Subsidiary and shall not be paid or discharged,
and there shall be any period of 60 consecutive days following entry of
the final judgment or order that causes the aggregate amount for all such final
judgments or orders outstanding and not paid or discharged against all such
Persons to exceed $75.0 million during which a stay of enforcement of such
final judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect;


 


(6) a court
having jurisdiction in the premises enters a decree or order for (A) relief
in respect of the Company, any Subsidiary Guarantor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, (B) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company, any Subsidiary Guarantor or any Significant Subsidiary
or for all or substantially all of the property and assets of the Company, any
Subsidiary Guarantor or any Significant Subsidiary or (C) the winding-up
or liquidation of the affairs of the Company, any Subsidiary Guarantor or any 


 


A-7

















 


Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days;


 


(7) the
Company, any Subsidiary Guarantor or any Significant Subsidiary (A) commences
a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company, any Subsidiary
Guarantor or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company, any Subsidiary Guarantor or any Significant
Subsidiary or (C) effects any general assignment for the benefit of
creditors; or


 


(8)  any Subsidiary Guarantor repudiates its
obligations under its Note Guarantee or, except as permitted by the Indenture,
any Note Guarantee is determined to be unenforceable or invalid or shall for
any reason cease to be in full force and effect.


 


If an Event of Default, as defined in the Indenture,
occurs and is continuing, the Trustee may, and at the direction of the Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
shall, declare all the Notes to be due and payable.  If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes automatically become
due and payable.  Holders may not enforce
the Indenture or the Notes except as provided in the Indenture.  The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes.  Subject to certain limitations, Holders of at
least a majority in principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.


 


15.           Guarantee.


 


The Company’s obligations
under the Notes are fully and unconditionally guaranteed, jointly and
severally, by the Subsidiary Guarantors.


 


16.           Trustee Dealings with the Company.


 


The Trustee under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from and perform
services for the Company, the Subsidiary Guarantors or their Affiliates and may
otherwise deal with the Company, the Subsidiary Guarantors or their Affiliates
as if it were not the Trustee.


 


17.           No Recourse Against Others.


 


No incorporator or any past, present or future
partner, stockholder, other equityholder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person shall
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of the Notes.


 


A-8

















 


18.           Authentication.


 


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


 


19.           Abbreviations.


 


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


 


20.           Governing Law.


 


THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


The Company will furnish a copy of the Indenture to
any Holder upon written request and without charge.  Requests may be made to SPX Corporation,
13515 Ballantyne Corporate Place, Charlotte, North Carolina 28277; Attention:
Office of Assistant General Counsel, SEC Reporting.


 


A-9

















 


[FORM OF
TRANSFER NOTICE]


 


FOR VALUE RECEIVED the undersigned registered holder
hereby sell(s), assign(s) and transfer(s) unto


 


Insert Taxpayer Identification No.


 


                                                                                                      


 


Please print or typewrite name and address including
zip code of assignee


 


                                                                                                      


 


the within Note and all rights thereunder, hereby
irrevocably constituting and appointing                                                                     
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.


 


[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL NOTES
OTHER THAN EXCHANGE NOTES, UNLEGENDED OFFSHORE GLOBAL NOTES AND UNLEGENDED
OFFSHORE PHYSICAL NOTES]


 


In connection with any transfer of this Note occurring
prior to the date which is the earlier of (i) the date the Shelf
Registration Statement is declared effective or (ii) the end of the period
referred to in Rule 144(k) or any successor provision under the
Securities Act, the undersigned confirms that without utilizing any general
solicitation or general advertising that:


 


[Check One]


 


o
(a)                   this Note is
being transferred in compliance with the exemption from registration under the
Securities Act of 1933 provided by Rule 144A thereunder.


 


or


 


o
(b)                  this Note is
being transferred other than in accordance with (a) above and documents
are being furnished which comply with the conditions of transfer set forth in
this Note and the Indenture.


 


A-10

















 


If none of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Note in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.08 of the
Indenture shall have been satisfied.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTICE: The signature to this assignment must
  correspond with the name as written upon the face of the within-mentioned
  instrument in every particular, without alteration or any change whatsoever.

  



 


Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other signature guarantor
acceptable to the Trustee.


 


TO BE COMPLETED BY PURCHASER IF (a) 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 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.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
  NOTICE: To be executed by an executive officer

  



 


A-11

















 


OPTION OF HOLDER
TO ELECT PURCHASE


 


If you wish to have this Note purchased by the Company
pursuant to Section 4.05 of the Indenture, check the Box:


 


If you wish to have a portion of this Note purchased
by the Company pursuant to Section 4.05 of the Indenture, state the
principal amount: 
$                                      .


 


Date:


 


	
  Your Signature:

  	
   

  	
   

  



 


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


 


	
  Signature Guarantee:

  	
   

  	
   

  	
   

  



 


Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other signature guarantor
acceptable to the Trustee.


 


A-12

















 


[include for Global Notes]


 


SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL NOTE


 


The following increases
or decreases in this Global Note have been made:


 


	
  Date

  	
   

  	
  Amount of

  decreases in

  principal amount

  	
   

  	
  Amount of

  increases in

  principal amount

  	
   

  	
  Principal amount

  of this Global

  Note following

  such decrease or

  increase

  	
   

  	
  Signature of

  authorized officer of

  Trustee or Notes

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-13

















 


EXHIBIT B


 


Form of
Certificate To Be Delivered


in Connection with
Transfers


of Temporary
Regulation S Global Notes


 


                ,


 


U.S. Bank National Association

Corporate Trust Services

Hearst Tower - 214 N. Tryon Street, 27th Floor

Charlotte, NC 28202


 


Re:  SPX Corporation (the “Company”)


7 5/8% Senior Notes due 2014 (the “Notes”)


 


Dear Sirs:


 


This letter relates to
U.S. $                
principal amount of Notes represented by a Note (the “Legended Note”)
which bears a legend outlining restrictions upon transfer of such Legended
Note.  Pursuant to Section 2.02 of
the Indenture dated as of December 13, 2007 (the “Indenture”) relating
to the Notes, we hereby certify that we are (or we will hold such securities on
behalf of) a person outside the United States to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under
the U.S. Securities Act of 1933.  Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Notes, all in the
manner provided for in the Indenture.


 


You and the Company are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.  Terms used in this certificate
have the meanings set forth in Regulation S.


 




	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Holder]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signature

  
	
   

  	
   

  






 


A-1

















 


EXHIBIT C


 


Form of
Certificate to Be


Delivered in
Connection with


Transfers to
Non-QIB Accredited Investors


 


            ,


 


U.S.
Bank National Association

Corporate Trust Services

Hearst Tower - 214 N. Tryon Street, 27th Floor

Charlotte, NC 28202


 


Re:  SPX Corporation (the “Company”)


7 5/8% Senior Notes due 2014 (the “Notes”)       


 


Dear Sirs:


 


In connection with our proposed purchase of $                  
aggregate principal amount of the Notes, we confirm that:


 


1.  We
understand that any subsequent transfer of the Notes is subject to certain
restrictions and conditions set forth in the Indenture dated as of December 13,
2007 (the “Indenture”) relating to the Notes and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with such restrictions and conditions and the Securities
Act of 1933, as amended (the “Securities Act”).


 


2.  We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes may not be offered or sold except as
permitted in the following sentence.  We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell any Notes within the time period
referred to in Rule 144(k) or any successor provision of the
Securities, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to
a “qualified institutional buyer” (as defined therein), (C) to an
institutional “accredited investor” (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter
and, if such transfer is in respect of an aggregate principal amount of less
than $100,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the exemption from registration provided by Rule 144
under the Securities Act (if available) or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.


 


3.  We
understand that, on any proposed resale of any Notes, we will be required to
furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the
proposed sale complies with 


 


C-1

















 


the foregoing
restrictions.  We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.


 


4.  We are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.


 


5.  We are
acquiring the Notes purchased by us for our own account or for one or more
accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.


 


	
  Very truly yours,

  
	
   

  
	
  [Name of Transferee]

  
	
   

  
	
  By:

  	
   

  
	
   

  	
  Authorized Signature

  



 


 


C-2

















 


EXHIBIT D


 


Form of Certificate to Be Delivered in


Connection with Transfers Pursuant to Regulation S


 


            ,


 


U.S.
Bank National Association

Corporate Trust Services

Hearst Tower - 214 N. Tryon Street, 27th Floor

Charlotte, NC 28202


 


Re:  SPX Corporation (the “Company”)


7 5/8% Senior Notes due 2014 (the “Notes”)       


 


Dear Sirs:


 


In connection with our proposed sale of U.S.$                
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933 and, accordingly, we represent that:


 


(1)  the offer of the Notes was not made to a
person in the United States;


 


(2)  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;


 


(3)  no directed selling efforts have been made
by us 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 U.S. Securities Act of
1933.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.  Terms used in this certificate have the
meanings set forth in Regulation S.


 


	
  Very truly yours,

  
	
   

  
	
  [Name of Transferor]

  
	
   

  
	
  By:

  	
   

  
	
   

  	
  Authorized Signature

  



 


D-1