Exhibit 4.1





Exhibit 4.1




MOBILE MINI, INC.,




as Issuer,




and




ANY GUARANTORS PARTY HERETO,




as Guarantors




77/8% Senior Notes due 2020






INDENTURE




Dated as of November 23, 2010






LAW DEBENTURE TRUST COMPANY OF NEW YORK,




as Trustee




DEUTSCHE BANK TRUST COMPANY AMERICAS




as Paying Agent, Registrar and Transfer Agent





 


 









 







CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	 
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.3, 7.8, 7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.5
	(b)
	 	12.3
	(c)
	 	12.3
	313(a)
	 	7.6
	(b)(1)
	 	7.6
	(b)(2)
	 	7.6
	(c)
	 	7.6, 12.2
	(d)
	 	7.6
	314(a)
	 	4.3, 4.4, 12.5
	(c)(1)
	 	12.4
	(c)(2)
	 	12.4
	(c)(3)
	 	12.4
	(d)
	 	12.4
	(e)
	 	12.5
	(f)
	 	N.A.
	315(a)
	 	7.1(b)
	(b)
	 	7.5, 12.2
	(c)
	 	7.1(a)
	(d)
	 	7.1(c)
	(e)
	 	6.11
	316(a)(last sentence)
	 	2.9
	(a)(1)(A)
	 	6.5
	(a)(1)(B)
	 	6.4
	(a)(2)
	 	N.A.
	(b)
	 	6.7
	(c)
	 	N.A.
	317(a)(1)
	 	6.8
	(a)(2)
	 	6.9
	(b)
	 	2.4
	318(a)
	 	12.1
	(b)
	 	N.A.
	(c)
	 	12.1






N.A. means Not Applicable



 





	 	 	 
	*	 	This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Other Definitions
	 	 	20	 
	Section 1.3. Incorporation by Reference of Trust Indenture Act
	 	 	21	 
	Section 1.4. Rules of Construction
	 	 	22	 
	Section 1.5. Acts of Holders
	 	 	22	 
	 
	 	 	 	 
	ARTICLE II.
THE NOTES

	 
	 	 	 	 
	Section 2.1. Form and Dating
	 	 	22	 
	Section 2.2. Execution and Authentication
	 	 	23	 
	Section 2.3. Registrar and Paying Agent
	 	 	24	 
	Section 2.4. Paying Agents to Hold Money in Trust
	 	 	24	 
	Section 2.5. Holder Lists
	 	 	24	 
	Section 2.6. Transfer and Exchange
	 	 	25	 
	Section 2.7. Replacement Notes
	 	 	31	 
	Section 2.8. Outstanding Notes
	 	 	32	 
	Section 2.9. Treasury Notes
	 	 	32	 
	Section 2.10. Temporary Notes
	 	 	32	 
	Section 2.11. Cancellation
	 	 	32	 
	Section 2.12. Defaulted Interest
	 	 	33	 
	Section 2.13. Persons Deemed Owners
	 	 	33	 
	Section 2.14. CUSIP Numbers
	 	 	33	 
	Section 2.15. Designation
	 	 	33	 
	Section 2.16. Additional Interest
	 	 	33	 
	 
	 	 	 	 
	ARTICLE III.
REDEMPTION AND REPURCHASE

	 
	 	 	 	 
	Section 3.1. Notices to Trustee
	 	 	34	 
	Section 3.2. Selection of Notes
	 	 	34	 
	Section 3.3. Notice of Optional or Special Redemption
	 	 	34	 
	Section 3.4. Effect of Notice of Redemption
	 	 	35	 
	Section 3.5. Deposit of Redemption Price or Purchase Price
	 	 	35	 
	Section 3.6. Notes Redeemed or Repurchased in Part
	 	 	36	 
	Section 3.7. Optional Redemption
	 	 	36	 
	Section 3.8. Optional Redemption upon Equity Offerings
	 	 	37	 
	Section 3.9. Repurchase upon Change of Control Offer
	 	 	37	 
	Section 3.10. Repurchase upon Application of Net Proceeds
	 	 	38	 






 


-i-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE IV.
COVENANTS
	 
	 	 	 	 
	Section 4.1. Payment of Principal and Interest
	 	 	39	 
	Section 4.2. Maintenance of Office or Agency
	 	 	40	 
	Section 4.3. Reports
	 	 	40	 
	Section 4.4. Compliance Certificate
	 	 	41	 
	Section 4.5. Taxes
	 	 	41	 
	Section 4.6. Stay, Extension and Usury Laws
	 	 	41	 
	Section 4.7. Limitation on Restricted Payments
	 	 	41	 
	Section 4.8. Limitation of Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	44	 
	Section 4.9. Limitation on Incurrence of Additional Indebtedness
	 	 	45	 
	Section 4.10. Limitation on Asset Sales
	 	 	45	 
	Section 4.11. Limitations on Transactions with Affiliates
	 	 	47	 
	Section 4.12. Limitation on Liens
	 	 	48	 
	Section 4.13. Continued Existence
	 	 	49	 
	Section 4.14. Insurance Matters
	 	 	49	 
	Section 4.15. Offer to Repurchase upon Change of Control
	 	 	49	 
	Section 4.16. Additional Subsidiary Guarantees
	 	 	50	 
	Section 4.17. Payments for Consent
	 	 	50	 
	Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries
	 	 	50	 
	Section 4.19. Conduct of Business
	 	 	50	 
	Section 4.20. Suspension of Covenants
	 	 	50	 
	 
	 	 	 	 
	ARTICLE V.
SUCCESSORS

	 
	 	 	 	 
	Section 5.1. Merger, Consolidation and Sale of Assets
	 	 	51	 
	Section 5.2. Successor Corporation Substituted
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI.
DEFAULTS AND REMEDIES

	 
	 	 	 	 
	Section 6.1. Events of Default
	 	 	53	 
	Section 6.2. Acceleration
	 	 	54	 
	Section 6.3. Other Remedies
	 	 	54	 
	Section 6.4. Waiver of Past Defaults
	 	 	55	 
	Section 6.5. Control by Majority
	 	 	55	 
	Section 6.6. Limitation on Suits
	 	 	55	 
	Section 6.7. Rights of Holders of Notes to Receive Payment
	 	 	55	 
	Section 6.8. Collection Suit by Trustee
	 	 	56	 
	Section 6.9. Trustee May File Proofs of Claim
	 	 	56	 
	Section 6.10. Priorities
	 	 	56	 
	Section 6.11. Undertaking for Costs
	 	 	57	 






 


-ii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII.
TRUSTEE

	 
	 	 	 	 
	Section 7.1. Duties of Trustee
	 	 	57	 
	Section 7.2. Rights of Trustee
	 	 	58	 
	Section 7.3. Individual Rights of Trustee
	 	 	58	 
	Section 7.4. Trustee’s Disclaimer
	 	 	59	 
	Section 7.5. Notice of Defaults
	 	 	59	 
	Section 7.6. Reports by Trustee to Holders of the Notes
	 	 	59	 
	Section 7.7. Compensation, Reimbursement and Indemnity
	 	 	59	 
	Section 7.8. Replacement of Trustee
	 	 	60	 
	Section 7.9. Successor Trustee by Merger, Etc
	 	 	61	 
	Section 7.10. Eligibility; Disqualification
	 	 	61	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	61	 
	Section 7.12. Paying Agent, Registrar and Transfer Agent
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	61	 
	Section 8.2. Legal Defeasance and Discharge
	 	 	62	 
	Section 8.3. Covenant Defeasance
	 	 	62	 
	Section 8.4. Conditions to Legal or Covenant Defeasance
	 	 	62	 
	Section 8.5. Deposited Money and U.S. Government Securities to Be Held in
Trust; Other Miscellaneous Provisions
	 	 	64	 
	Section 8.6. Repayment to Company
	 	 	64	 
	Section 8.7. Reinstatement
	 	 	64	 
	 
	 	 	 	 
	ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.1. Without Consent of Holders of Notes
	 	 	64	 
	Section 9.2. With Consent of Holders of Notes
	 	 	65	 
	Section 9.3. Compliance with Trust Indenture Act
	 	 	66	 
	Section 9.4. Revocation and Effect of Consents
	 	 	66	 
	Section 9.5. Notation on or Exchange of Notes
	 	 	66	 
	Section 9.6. Trustee to Sign Amendment, Etc
	 	 	66	 
	 
	 	 	 	 
	ARTICLE X.
GUARANTEE

	 
	 	 	 	 
	Section 10.1. Unconditional Guarantee
	 	 	67	 
	Section 10.2. Severability
	 	 	67	 
	Section 10.3. Limitation of Guarantor’s Liability
	 	 	67	 
	Section 10.4. Release of Guarantor
	 	 	68	 
	Section 10.5. Contribution
	 	 	68	 
	Section 10.6. Waiver of Subrogation
	 	 	69	 
	Section 10.7. Execution of Guarantee
	 	 	69	 
	Section 10.8. Waiver of Stay, Extension or Usury Laws
	 	 	69	 






 


-iii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE XI.
SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 11.1. Satisfaction and Discharge
	 	 	70	 
	Section 11.2. Application of Trust
	 	 	70	 
	 
	 	 	 	 
	ARTICLE XII.
MISCELLANEOUS

	 
	 	 	 	 
	Section 12.1. Trust Indenture Act Controls
	 	 	70	 
	Section 12.2. Notices
	 	 	71	 
	Section 12.3. Communication by Holders of Notes with Other Holders of Notes
	 	 	72	 
	Section 12.4. Certificate and Opinion as to Conditions Precedent
	 	 	72	 
	Section 12.5. Statements Required in Certificate or Opinion
	 	 	72	 
	Section 12.6. Rules by Trustee and Agents
	 	 	73	 
	Section 12.7. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	73	 
	Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial
	 	 	73	 
	Section 12.9. No Adverse Interpretation of Other Agreements
	 	 	73	 
	Section 12.10. Successors
	 	 	73	 
	Section 12.11. Severability
	 	 	74	 
	Section 12.12. Counterpart Originals
	 	 	74	 
	Section 12.13. Table of Contents, Headings, Etc
	 	 	74	 
	Section 12.14. Qualification of Indenture
	 	 	74	 
	Section 12.15. USA PATRIOT Act
	 	 	74	 
	 
	 	 	 	 
	Signatures
	 	 	S-1	 






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Series A Note
	 
	 	 
	Exhibit B

	 	Form of Series B Note
	 
	 	 
	Exhibit C

	 	Form of Guarantee
	 
	 	 
	Exhibit C(1)

	 	Form of Regulation S Certificate
	 
	 	 
	Exhibit C(2)

	 	Form of Certificate to Be Delivered upon Exchange or Registration of Transfer of Notes
	 
	 	 
	Exhibit D

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

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







 


-iv-









 







INDENTURE




INDENTURE dated as of November 23, 2010 among MOBILE MINI, INC., a Delaware corporation (the
“Company”), the Guarantors (as defined herein), if any, LAW DEBENTURE TRUST COMPANY OF NEW
YORK, as trustee (the “Trustee”) and DEUTSCHE BANK TRUST COMPANY AMERICAS
(“DBTCA”), as Paying Agent, Registrar and Transfer Agent (in such capacities the
“Paying Agent”, the “Registrar” and the “Transfer Agent”, respectively).



Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders (as defined below) of the Company’s 77/8% Senior Notes due 2020:



ARTICLE I.




DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.1. Definitions.



“2014 Notes” means the 9 3/4% Senior Notes due 2014 issued pursuant to the indenture
dated as of August 1, 2006 by and among Mobile Services Group, Inc. and Mobile Storage Group, Inc.,
as issuers, the subsidiary guarantors named therein and Wells Fargo Bank, N.A., as trustee.



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



“Additional Interest” means all additional interest then owing pursuant to Section 4
of the Registration Rights Agreement or the comparable section of any registration rights agreement
entered into in connection with the issuance of any Additional Notes.



“Additional Notes” means Notes issued pursuant to Article II and in compliance with
Section 4.9 hereof, in addition to and having substantially the same terms as the Series A Notes
issued on the Issue Date or as the Series B Notes issued in exchange therefor.



“Affiliate” means, with respect to any specified Person, any other Person who directly
or indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative of the foregoing.




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



“Asset Acquisition” means (1) an Investment by the Company or any Restricted
Subsidiary of the Company in any other Person pursuant to which such Person shall become a
Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be
merged with or into the Company or any Restricted Subsidiary of the Company, or (2) the acquisition
by the Company or any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially all of the assets of
such Person or comprises any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.


 


 









 





“Asset Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease
(other than operating leases entered into in the ordinary course of business), assignment or other
transfer for value by the Company or any of its Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than the Company or a Restricted Subsidiary of the
Company of: (1) any Capital Stock of any Restricted Subsidiary of
the Company; or (2) any other property or assets of the Company or any Restricted Subsidiary
of the Company other than in the ordinary course of business; provided, however, that asset sales
or other dispositions shall not include: (a) a transaction or series of related transactions for
which the Company or its Restricted Subsidiaries receive aggregate consideration (exclusive of any
indemnities) of less than $10.0 million; (b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted under Section 5.1;
(c) any Restricted Payment permitted by Section 4.7 or that constitutes a Permitted Investment;
(d) the sale or discount, in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or collection thereof;
(e) the sale of or other disposition of cash or Cash Equivalents; (f) any sale or disposition
deemed to occur in connection with creating or granting any Liens pursuant to Section 4.12; (g) the
lease, assignment or sublease of any real or personal property in the ordinary course of business;
(h) any sale of Receivables pursuant to a Qualified Securitization Transaction; (i) sales of
Unrestricted Subsidiaries; and (j) disposals, trade-ins or replacements of obsolete or worn-out
equipment.



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



“Board of Directors” means, as to any Person, the board of directors (or similar
governing body) of such Person or any duly authorized committee thereof.



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




“Borrowing Base” means, as of any date, an amount equal to the sum of:




(1) 85% of the aggregate book value of all accounts receivable of such Person and its
Restricted Subsidiaries (other than any Special Purpose Vehicle); and




(2) 95% of the aggregate cost basis of the portable storage unit lease fleet (or any
successor line item or items reflecting such portable storage unit lease fleet) as indicated
on its consolidated balance sheet as owned by such Person and its Restricted Subsidiaries,



all calculated on a consolidated basis and in accordance with GAAP, and, in each case as reflected
on the most recent balance sheet for the most recent fiscal quarter (or, if available, the most
recent month) preceding such date and after giving effect on a pro forma basis to any asset sales
or other dispositions or Asset Acquisitions in the manner described in the definition of
“Consolidated Fixed Charge Coverage Ratio.”



“Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is not a Business Day, payment may be made on
the next succeeding day that is a Business Day, and no interest shall accrue for the intervening
period.




“Capital Stock” means:




(1) with respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not voting) of
corporate stock, including each class of Common Stock and Preferred Stock of such Person,
and all options, warrants or other rights to purchase or acquire any of the foregoing; and




(2) with respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person, and all options, warrants or other
rights to purchase or acquire any of the foregoing.


 


-2-









 





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




“Cash Equivalents” means:




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




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




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




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




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




(6) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (1) through (5) above.




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




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




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




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




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




“Clearstream” shall mean Clearstream Banking, Société Anonyme, Luxembourg.



“Commission” means the Securities and Exchange Commission.


 


-3-









 





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



“Company” means Mobile Mini, Inc., a Delaware corporation, or any successor obligor
under this Indenture and the Notes pursuant to Article V.



“Comparable Treasury Issue” means the United States treasury security selected by an
Independent Investment Bank as having a maturity comparable to the remaining term of the notes that
would be utilized, at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the remaining term of
such notes.




“Comparable Treasury Price” means, with respect to any Redemption Date:




(1) the average of the bid and ask prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third business day preceding
such Redemption Date, as set forth in the most recently published statistical release
designated “H.15 (519)” (or any successor release) published by the Board of Governors of
the Federal Reserve System and which establishes yields on actively traded United States
treasury securities adjusted to constant maturity under the caption “Treasury Constant
Maturities,” or




(2) if such release (or any successor release) is not published or does not contain
such prices on such business day, the average of the Reference Treasury Dealer Quotations
for such Redemption Date.



“Consolidated Assets” means, as of the date of determination, the total assets (less
goodwill and intangible assets) of the Company and its Restricted Subsidiaries as shown on the
balance sheet of the Company and its Subsidiaries for the most recently ended fiscal quarter for
which financial statements are available, determined on a consolidated basis in accordance with
GAAP.



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




(1) Consolidated Net Income; and




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




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




(b) Consolidated Interest Expense; and




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


 


-4-









 





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




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




(2) any asset sales or other dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA
(including any pro forma expense and cost reductions and other operating improvements or
synergies (x) calculated on a basis consistent with Regulation S-X under the Exchange Act)
or (y) as determined in good faith by a responsible financial or accounting officer of the
Company for which steps have been taken or are reasonably expected to be taken within six
(6) months of such transaction and are supportable and quantifiable and as set forth on an
officers’ certificate) attributable to the assets which are the subject of the Asset
Acquisition or asset sale or other disposition during the Four Quarter Period) occurring
during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such asset sale or other disposition
or Asset Acquisition (including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person
or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly
incurred or otherwise assumed such guaranteed Indebtedness.



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




(1) interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date; and




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



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




(1) Consolidated Interest Expense; plus




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



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




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


 


-5-









 






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




(3) interest income for such period.



“Consolidated Net Income” means, with respect to any Person, for any period, the
aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP; provided that there shall be excluded
therefrom (without duplication):




(1) after-tax gains from Asset Sales (without regard to the $10.0 million limitation
set forth in the definition thereof) or abandonments or reserves relating thereto;




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




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




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




(5) any restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at any time
following the Issue Date;




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




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




(8) fees and expenses incurred in connection with the refinancing or repayment of
indebtedness (including those incurred in the offering of the Notes and related refinancing
transactions in an aggregate amount not to exceed $15.0 million);




(9) charges to earnings incurred in connection with the early retirement of the 2014
Notes;




(10) the amount of extraordinary, nonrecurring or unusual losses or charges (including
all fees, expenses or charges incurred in connection with acquisitions, mergers of
consolidations after the Issue Date);




(11) any non-cash compensation charge or expense, including any such charge or expense
arising from the grants of stock appreciation or similar rights, stock options, restricted
stock or other rights or equity incentive programs;




(12) any net after-tax effect of income (loss) from the early extinguishment or
conversion of (a) Indebtedness, (b) Hedging Obligations or (c) other derivative instruments;


 


-6-









 






(13) any impairment charge or asset write-off or write-down, including impairment
charges or asset write-offs or write-downs related to goodwill, intangible assets,
long-lived assets, investments in debt and equity securities or as a result of a change in
law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles
arising pursuant to GAAP; and




(14) any non-cash income (or loss) related to the recording of the fair market value of
Interest Swap Obligations and Currency Agreements entered into in the ordinary course of
business and not for speculative purposes.



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



“Corporate Trust Office of the Trustee” means the office of the Trustee at which at
any time at which its corporate trust business shall be principally administered on the date
hereof, the address of the Trustee specified in Section 12.2 or such other address as to which the
Trustee may give notice to the Company.



“Consolidated Secured Leverage Ratio” means, as of the date of determination (the
“Secured Leverage Ratio Calculation Date”), the ratio of (a) the total Indebtedness of the Company
and its Restricted Subsidiaries as of the end of the most recent fiscal quarter for which internal
financial statements are available that is secured by Liens (other than property or assets held in
a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby)
to (b) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recently
ended four fiscal quarters ending immediately prior to such date for which internal financial
statements are available, with such pro forma adjustments as are appropriate and consistent with
the pro forma adjustment provisions set forth in the definition of “Consolidated Fixed Charge
Coverage Ratio.”



“Credit Agreement” means the ABL Credit Agreement dated as of June 27, 2008, as
amended by that certain First Amendment to the ABL Credit Agreement, dated as of August 31, 2008,
and further amended by that Second Amendment to the ABL Credit Agreement, dated as of August 17,
2010, between the Company, certain of the Company’s subsidiaries, the lenders party thereto in
their capacities as lenders thereunder, Deutsche Bank AG, New York Branch, as administrative agent
(the “Agent”) and Deutsche Bank Securities Inc. and Banc of America Securities, LLC as joint lead
arrangers, together with the related documents thereto (including, without limitation, any notes,
guarantee agreements and security documents), in each case as such agreements may be amended
(including any amendment and restatement thereof), supplemented or otherwise modified from time to
time, including one or more credit agreements, loan agreements, indentures or similar agreements
extending the maturity of, refinancing, replacing, renewing or otherwise restructuring (including
increasing the amount of available credit thereunder or adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such
agreement or agreements or any successor or replacement agreement or agreements and whether by the
same or any other agent, lender or group of lenders.



“Credit Facilities” means one or more of (i) the Credit Agreement and (ii) any other
facilities or arrangements designated by the Company, in each case with one or more banks or other
lenders or institutions, providing for revolving credit loans, term loans, receivables or fleet
financings (including without limitation through the sale of receivables or fleet assets to such
institutions or to special purpose entities formed to borrow from such institutions against such
receivables or fleet assets or the creation of any Liens in respect of such receivables or fleet
assets in favor of such institutions), letters of credit or other Indebtedness, in each case,
including all agreements, instruments and documents executed and delivered pursuant to or in
connection with any of the foregoing, including but not limited to any notes and letters of credit
issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security
agreement, mortgages or letter of credit applications and other guarantees, pledge agreements,
security agreements and collateral documents, in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole
or in part, whether with the original banks, lenders or institutions or other banks, lenders or
institutions or otherwise, and whether provided under any original Credit
Agreement or one or more other credit agreements, indentures, financing agreements or other
Credit Facilities or otherwise). Without limiting the generality of the foregoing, the term “Credit
Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred
thereunder or contemplated thereby, (ii) adding Subsidiaries as additional borrowers or guarantors
thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be
borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.


 


-7-









 





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



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



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



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



“Domestic Restricted Subsidiary” means a Restricted Subsidiary incorporated or
otherwise organized or existing under the laws of the United States, any state thereof or any
territory or possession of the United States.



“Equity Offering” means a public or private equity offering of Qualified Capital Stock
of the Company or any of its Subsidiaries other than:




(1) public offerings with respect to the common stock of the Company or any Subsidiary
registered on Form S-8; and




(2) issuances to any Subsidiary of the Company.




“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear System.



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



“Exchange Notes” means the 7 7/8% Senior Notes due 2020 issued in exchange for the
Initial Notes, which Exchange Notes are registered under the Securities Act and issued pursuant to
the terms of a certain registration rights agreement dated the Issue Date by and among the Company,
the Guarantors and the initial purchasers named therein.



“Exchange Offer” means the offer that shall be made by the Company pursuant to the
Registration Rights Agreement to exchange Series A Notes for Series B Notes.



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


 


-8-









 





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



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




“Guarantee” means a guarantee of the Notes by a Guarantor.



“Guarantor” means each of the Company’s Domestic Restricted Subsidiaries that (i)
executes this Indenture on the Issue Date or (ii) in the future executes a supplemental indenture
in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a
Guarantor; provided that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in accordance with the terms of
this Indenture.



“Holder” means a Person in whose name a Note is registered on the books of the
Registrar.




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




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




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




(3) all Capitalized Lease Obligations of such Person;




(4) all Obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are being contested
in good faith by appropriate proceedings promptly instituted and diligently conducted);




(5) all Obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;




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




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




(8) all Obligations under currency agreements and interest swap agreements of such
Person; and




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


 


-9-









 





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




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



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



“Independent Investment Bank” means one of the Reference Treasury Dealers appointed by
the Company.



“Initial Notes” means the 7 7/8% Senior Notes due 2020 issued under the Indenture and
not registered under the Securities Act.



“Initial Purchasers” means Deutsche Bank Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Wells Fargo Securities, LLC and
Oppenheimer & Co. Inc.



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



“Investment” means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for property or services
for the account or use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any
other Person. “Investment” shall exclude (i) extensions of trade credit by the Company and its
Restricted Subsidiaries on commercially reasonable terms in accordance with normal trade practices
of the Company or such Restricted Subsidiary, as the case may be; (ii) the acquisition of property
and assets from suppliers and other vendors in the normal course of business and consistent with
past practice; and (iii) prepaid expenses and workers’ compensation, utility, lease and similar
deposits, in the normal course of business and consistent with past practice. If the Company or
any Restricted Subsidiary of the Company sells or otherwise disposes of any Common Stock of any
direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Restricted Subsidiary, the Company shall be deemed
to have made an Investment on the date of any such sale or disposition equal to the fair market
value of the Common Stock of such Restricted Subsidiary not sold or disposed of.



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




“Issue Date” means November 23, 2010.



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



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


 


-10-









 





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




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




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




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




(4) amounts required to be paid to any Person owning a beneficial interest in or having
a Lien on the assets subject to the Asset Sale; and




(5) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as
the case may be, as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company or any Restricted Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale.



“Note Custodian” means DBTCA, as custodian with respect to the Notes in global form,
or any successor entity thereto.



“Notes” means the Series A Notes and the Series B Notes, if any, that are issued under
this Indenture, as amended or supplemented from time to time, including Additional Notes, if any,
and any Exchange Notes, if any.



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



“Officer” means, (a) with respect to any Person that is a corporation, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Chief Operating Officer, the Treasurer, the Controller, the Secretary or any
Vice-President of such Person and (b) with respect to any other Person, the individuals selected by
such Person to perform functions similar to those of the officers listed in clause (a).



“Officers’ Certificate” means a certificate signed on behalf of the Company by two
Officers of the Company, one of whom must be the Chief Executive Officer, the Chief Financial
Officer or the principal accounting officer of the Company, that meets the requirements of Section
12.5.



“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable
to the Trustee that meets the requirements of Section 12.5. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.




“outstanding” shall have the meaning in Section 2.8 hereof.



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


 


-11-









 





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




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




(1) Indebtedness under the Notes issued on the Issue Date in an aggregate principal
amount not to exceed $200.0 million;




(2) (a) Indebtedness incurred pursuant to the Credit Agreement and (b) Indebtedness
incurred pursuant to a Qualified Securitization Transaction in an aggregate principal amount
at any time outstanding for Indebtedness incurred under clauses (a) and (b) not to exceed
the greater of (i) $950.0 million less the amount of all required permanent repayments
(which are accompanied by a corresponding permanent commitment reduction) thereunder with
the Net Cash Proceeds from Asset Sales and (ii) $25.0 million plus the Borrowing Base;




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




(4) Interest Swap Obligations of the Company or any Restricted Subsidiary of the
Company covering Indebtedness of the Company or any of its Restricted Subsidiaries;
provided, however, that such Interest Swap Obligations are entered into to protect the
Company and its Restricted Subsidiaries from fluctuations in interest rates on its
outstanding Indebtedness to the extent the notional principal amount of such Interest Swap
Obligation does not, at the time of the incurrence thereof, exceed the principal amount of
the Indebtedness to which such Interest Swap Obligation relates;




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




(6) Indebtedness of a Restricted Subsidiary of the Company to the Company or to a
Restricted Subsidiary of the Company for so long as such Indebtedness is held by the Company
or a Restricted Subsidiary of the Company or the holder of a Lien permitted under this
Indenture, in each case subject to no Lien held by a Person other than the Company or a
Restricted Subsidiary of the Company or the holder of a Lien permitted under this Indenture;
provided that if as of any date any Person other than the Company or a Restricted Subsidiary
of the Company or the holder of a Lien permitted under this Indenture owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (6) by
the issuer of such Indebtedness;




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




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


 


-12-









 






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




(10) Indebtedness represented by Capitalized Lease Obligations and Purchase Money
Indebtedness of the Company and its Restricted Subsidiaries incurred in the ordinary course
of business in an aggregate principal amount not to exceed the greater of (x) $50.0 million
and (y) 4% of Consolidated Assets of the Company at any one time outstanding;




(11) Refinancing Indebtedness;




(12) Indebtedness represented by guarantees by the Company or its Restricted
Subsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture;




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




(14) Acquired Indebtedness of the Company or any Restricted Subsidiary, in an aggregate
principal amount not to exceed $20.0 million;




(15) additional Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate principal amount not to exceed at any one time outstanding the greater of (x)
$50.0 million and (y) 4% of Consolidated Assets of the Company (which amount may, but need
not, be incurred in whole or in part under the Credit Agreement); and




(16) Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries in an
aggregate principal amount not to exceed at any one time outstanding the greater of (x)
$50.0 million and (y) the Borrowing Base of such Foreign Subsidiaries.



For purposes of determining compliance with Section 4.9, (1) in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (16) above or is entitled to be incurred pursuant to the
Consolidated Fixed Charge Coverage Ratio provisions of Section 4.9, the Company shall, in its sole
discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies
with this definition; provided that all Indebtedness outstanding under the Credit Agreement up to
the maximum amount permitted under clause (2) of this definition above shall be deemed to have been
incurred pursuant to clause (2) of this definition; (2) the outstanding principal amount of any
particular Indebtedness shall be counted only once and any obligations arising under any guarantee,
lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded;
(3) the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may incur
pursuant to Section 4.9 shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies; and
(4) the accrual of interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional shares of the same
class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of Section 4.9.




“Permitted Investments” means:




(1) Investments by the Company or any Restricted Subsidiary of the Company in any
Person that is or will become immediately after such Investment a Restricted Subsidiary of
the Company or that will merge or consolidate into the Company or a Restricted Subsidiary of
the Company;




(2) Investments in the Company by any Restricted Subsidiary of the Company;


 


-13-









 






(3) investments in cash and Cash Equivalents;




(4) loans and advances to employees, directors and officers of the Company and its
Restricted Subsidiaries in the ordinary course of business for bona fide business purposes
not in excess of $1.0 million at any one time outstanding;




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




(6) additional Investments in an aggregate principal amount not to exceed the greater
of (x) $50.0 million and (y) 4.0% of Consolidated Assets of the Company at any one time
outstanding;




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




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




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




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




(11) Investments in a Special Purpose Vehicle in connection with a Qualified
Securitization Transaction; provided, however, that the only assets transferred to such
Special Purpose Vehicle consist of Receivables and related assets of such Special Purpose
Vehicle; and




(12) Investments in existence on the date of this Indenture and an Investment in any
Person to the extent such Investment replaces or refinances an Investment in such Person
existing on the date of this Indenture in an amount not exceeding the amount of the
Investment being replaced or refinanced; provided, however, that the new Investment is on
terms and conditions no less favorable to the Company and its Restricted Subsidiaries than
the Investment being renewed or replaced.




“Permitted Liens” means the following types of Liens:




(1) Liens for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and as to which the
Company or its Restricted Subsidiaries shall have set aside on its books such reserves as
may be required pursuant to GAAP;




(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;




(3) Liens incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, warranty
requirements, government contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);




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


 


-14-









 






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




(6) any interest or title of a lessor under any Capitalized Lease Obligation; provided
that such Liens do not extend to any property or assets which is not leased property subject
to such Capitalized Lease Obligation other than proceeds thereof;




(7) Liens securing Purchase Money Indebtedness incurred or in the ordinary course of
business; provided, however, that (a) such Purchase Money Indebtedness shall not exceed the
purchase price or other cost of such property or equipment and shall not be secured by any
property or equipment of the Company or any Restricted Subsidiary of the Company other than
the property and equipment so acquired and (b) the Lien securing such Purchase Money
Indebtedness shall be created within 90 days of such acquisition;




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




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




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




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




(12) Liens securing Indebtedness under Currency Agreements;




(13) Liens securing Acquired Indebtedness incurred in accordance with Section 4.9;
provided that:




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




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




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




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


 


-15-









 






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




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




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




(19) Liens securing Indebtedness permitted to be incurred pursuant to clause (15) or
(16) of the definition of “Permitted Indebtedness”; provided that, in the case of clause
(16), such Liens do not extend to any assets other than the assets of such Foreign
Subsidiaries;




(20) Liens on Receivables to reflect sales of receivables pursuant to a Qualified
Securitization Transaction;




(21) other Liens securing obligations or Indebtedness for borrowed money with respect
to property or assets with an aggregate fair market value (valued at the time of creation
thereof) of not more than $25.0 million at any time in the aggregate; and




(22) deposits made in the ordinary course of business to secure liability to insurance
carriers.



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



“PORTAL Market” means the Private Offerings, Resales and Trading through Automated
Linkages Market, commonly referred to as the Portal Market, operated by the National Association of
Securities Dealers, Inc. or any successor thereto.



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



“Purchase Date” means, with respect to any Note to be repurchased, the date fixed for
such repurchase by or pursuant to this Indenture.



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



“Purchase Price” means the amount payable for the repurchase of any Note on a Purchase
Date, exclusive of accrued and unpaid interest and Additional Interest (if any) thereon to the
Purchase Date, unless otherwise specifically provided.



“QIB” means a qualified institutional buyer as defined in Rule 144A under the
Securities Act.



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



“Qualified Securitization Transaction” means any transaction or series of transactions
that may be entered into by the Company or any Restricted Subsidiary in connection with or
reasonably related to a transaction or series of transactions in which the Company or any
Restricted Subsidiary may sell, convey or otherwise transfer to (1) a Special Purpose Vehicle or
(2) any other Person, or may grant a security interest in, any equipment and related assets
(including contract rights) or Receivables or interests therein secured by goods or services
financed thereby (whether such Receivables are then existing or arising in the future) of the
Company or any Restricted Subsidiary, and any assets relating thereto including, without
limitation, all security or ownership interests in goods or services financed thereby, the proceeds
of such Receivables, and other assets which are customarily sold or in respect of which security interests are customarily granted in connection with securitization
transactions involving such assets, as any agreement governing any such transactions may be
renewed, refinanced, amended, restated or modified from time to time.


 


-16-









 





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



“Receivables” means any right of payment from or on behalf of any obligor, whether
constituting an account, chattel paper, instrument, general intangible or otherwise, arising from
the financing by the Company or any Restricted Subsidiary of goods or services, and monies due
thereunder, security or ownership interests in the goods and services financed thereby, records
relating thereto, and the right to payment of any interest or finance charges and other obligations
with respect thereto, proceeds from claims on insurance policies related thereto, any other
proceeds related thereto, and other related rights.



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



“Redemption Price” means the amount payable for the redemption of any Note on a
Redemption Date, exclusive of accrued and unpaid interest and Additional Interest (if any) thereon
to the Redemption Date, unless otherwise specifically provided.



“Reference Treasury Dealer” means Deutsche Bank Securities Inc. and its successors;
provided, however, that if it shall cease to be a primary U.S. Government securities dealer in New
York City (a “Primary Treasury Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer.



“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.



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



“Refinancing Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of the Company of Indebtedness incurred in accordance with Section 4.9 (other than
pursuant to clauses (2), (4), (5), (6), (7), (8), (9), (10), (12), (13), (15) or (16) of the
definition of “Permitted Indebtedness”), in each case that does not:




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




(2) create Indebtedness with: (a) a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or (b) a
final maturity earlier than the final maturity of the Indebtedness being Refinanced;


 


-17-









 





provided that (x) if such Indebtedness being Refinanced is Indebtedness solely of the Company (and
is not otherwise guaranteed by a Restricted Subsidiary of the Company), then such Refinancing
Indebtedness shall be Indebtedness solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes or any
Guarantee, then such Refinancing Indebtedness shall be subordinate to the Notes or such Guarantee,
as the case may be, at least to the same extent and in the same manner as the Indebtedness being
Refinanced.



“Registration Rights Agreement” means the registration rights agreement dated as of
the Issue Date among the Company and the Initial Purchasers.




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



“Responsible Officer” means, when used with respect to the Trustee, any officer of the
Trustee within its Corporate Trust Department assigned by the Trustee to administer this Indenture
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject.



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




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



“S&P” means Standard & Poor’s Ratings Group or any successor to the rating agency
business thereof.



“Sale and Leaseback Transaction” means any direct or indirect arrangement with any
Person or to which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at
the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are
to be advanced by such Person on the security of such Property.




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



“Series A Notes” means the Company’s 77/8% Senior Notes due 2020 issued under this
Indenture and not registered under the Securities Act, whether issued on the Issue Date or
thereafter, including any Additional Notes, if applicable.



“Series B Notes” means notes issued by the Company hereunder containing terms
identical to the Series A Notes (except that (i) interest and Additional Interest (if any) thereon
shall accrue from the last date on which interest was paid on the Series A Notes or, if no such
interest has been paid, from the date of original issuance, (ii) the legend or legends relating to
transferability and other related matters set forth on the Series A Notes shall be removed or
appropriately altered, and (iii) as otherwise set forth herein), to be offered to Holders of
Series A Notes in exchange for such Series A Notes pursuant to the Exchange Offer or any exchange
offer specified in any registration rights agreement relating to Additional Notes or in a
registered public offering of Additional Notes.



“Significant Subsidiary”, with respect to any Person, means any Restricted Subsidiary
of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02(w)
of Regulation S-X under the Exchange Act.



“Special Purpose Vehicle” means a bankruptcy-remote entity or trust or other special
purpose entity that is formed by the Company, any Subsidiary of the Company or any other Person for
the purpose of, and engages in no material business other than in connection with a Qualified
Securitization Transaction or other similar transactions of Receivables or other similar or related
assets.



“Stated Maturity” means, with respect to any installment of interest or principal on
any series of Indebtedness, the date on which the payment of interest or principal was scheduled to
be paid in the original documentation governing such Indebtedness, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.


 


-18-









 





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




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




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




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



“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date on which this Indenture is qualified under the TIA; provided that in the event the
Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any
such amendment, the Trust Indenture Act of 1939 as so amended.



“Transfer Restricted Security” means a Note that is a restricted security as defined
in Rule 144(a)(3) under the Securities Act.



“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal
to the yield to maturity of the Comparable Treasury Issue, compounded semi-annually, assuming a
price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such Redemption Date.



“Trustee” means the party named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture, and thereafter means the successor
serving hereunder.




“Unrestricted Subsidiary” of any Person means:




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




(2) any Subsidiary of an Unrestricted Subsidiary.



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




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




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



For purposes of making the determination of whether any such designation of a Subsidiary as an
Unrestricted Subsidiary complies with Section 4.7, the portion of the fair market value of the net
assets of such Subsidiary of the Company at the time that such Subsidiary is designated as an
Unrestricted Subsidiary that is represented by the interest of the Company and its Restricted
Subsidiaries in such Subsidiary, in each case as determined in good faith by the Board of Directors
of the Company, shall be deemed to be an Investment. Such designation will be permitted only if
such Investment would be permitted at such time under Section 4.7.


 


-19-









 





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




(1) immediately after giving effect to such designation, the Company is able to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.9(a); and




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



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



“U.S. Government Securities” shall mean securities which are (i) direct obligations of
the United States of America for the payment of which its full faith and credit is pledged or
(ii) 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, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government Securities or a
specific payment of interest on or principal of any such U.S. Government Securities held by such
custodian for the account of the holder of a depository receipt.




“U.S. Person” means any U.S. Person as defined in Regulation S.



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



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



“Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person of which
all the outstanding voting securities (other than in the case of a foreign Subsidiary, directors’
qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant
to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person.



Section 1.2. Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section	 
	 
	 	 	 	 
	“Acceleration Notice”
	 	 	6.2	 
	“Act
	 	 	1.5(a)	
	“Adjusted Net Assets”
	 	 	10.5	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Agent Members”
	 	 	2.6(b)	
	“Certificated Notes”
	 	 	2.1	 
	“Change of Control Offer”
	 	 	4.15(a)	
	“Change of Control Offer Period”
	 	 	3.9(b)	
	“Covenant Defeasance”
	 	 	8.3	 
	“Covenant Suspension Event”
	 	 	4.20(a)	
	“Event of Default”
	 	 	6.1	 






 


-20-









 





	 	 	 	 	 
	Term	 	Defined in Section	 
	 
	 	 	 	 
	“Foreign Person”
	 	 	2.6(c)	
	“Funding Guarantor”
	 	 	10.5	 
	“Global Notes”
	 	 	2.1	 
	“incur”
	 	 	4.9(a)	
	“Institutional Accredited Investors”
	 	 	2.1	 
	“Legal Defeasance”
	 	 	8.2	 
	“Net Proceeds Offer”
	 	 	4.10	 
	“Net Proceeds Offer Payment Date”
	 	 	4.10	 
	“Net Proceeds Offer Trigger Date”
	 	 	4.10	 
	“Offshore Certificated Notes”
	 	 	2.1	 
	“Paying Agent”
	 	 	2.3	 
	“Permanent Regulation S Global Note”
	 	 	2.1	 
	“Private Placement Legend”
	 	 	2.6(h)	
	“Reference Date”
	 	 	4.7	 
	“Registrar”
	 	 	2.3	 
	“Regulation S Global Note”
	 	 	2.1	 
	“Replacement Assets”
	 	 	4.10(3)(b)	
	“Restricted Payment”
	 	 	4.7(a)	
	“Reversion Date”
	 	 	4.20(c)	
	“Rule 144A Global Note”
	 	 	2.1	 
	“Special Redemption”
	 	 	3.8	 
	“Suspended Covenants”
	 	 	4.20(a)	
	“Suspension Date”
	 	 	4.20(b)	
	“Suspension Period”
	 	 	4.20(c)	
	“Surviving Entity”
	 	 	5.1	 
	“Temporary Regulation S Global Note”
	 	 	2.1	 
	“U.S. Certificated Notes”
	 	 	2.1	 






Section 1.3. Incorporation by Reference of Trust Indenture Act.



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




The following TIA terms used in this Indenture have the following meanings:




“indenture securities” means the Notes;




“indenture security holder” means a Holder;




“indenture to be qualified” means this Indenture;




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




“obligor” on the Notes means the Company and any successor obligor upon the Notes.



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


 


-21-









 





Section 1.4. Rules of Construction.




Unless the context otherwise requires:




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




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




(c) “or” is not exclusive;




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




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



Section 1.5. Acts of Holders.



(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders
signing or bound by such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 7.1) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.



(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of
his or her authority.




(c) The ownership of Notes shall be proved by the register maintained by the Registrar.



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



ARTICLE II.




THE NOTES




Section 2.1. Form and Dating.



The Series A Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage in addition to those set forth in Exhibit A. The
Series B Notes shall be substantially in the form of Exhibit B. The notation on each Note
relating to the Guarantees, if any, shall be substantially in the form set forth in
Exhibit C. Each Note shall be dated the date of its authentication. The Notes shall be in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.



The terms and provisions contained in the Notes and Guarantees shall constitute, and are
hereby expressly made, a part of this Indenture, and the Company, the Guarantors, if any, and the
Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. To the
extent any provisions contained in the Notes conflict with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.


 


-22-









 





Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a
single permanent global Note in registered form, substantially in the form set forth in Exhibit
A (the “Rule 144A Global Note”), deposited with the Note Custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Note Custodian for the Depositary or its
nominee, as hereinafter provided.



Notes offered and sold in offshore transactions in reliance on Regulation S shall be issued
initially in the form of a single temporary global Note in registered form substantially in the
form set forth in Exhibit A (the “Temporary Regulation S Global Note”), deposited
with the Note Custodian for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. At any time following 40 days after the later of the consummation
of the offering of the Notes and the Issue Date, upon receipt by the Trustee and the Company of a
duly executed certificate substantially in the form of Exhibit C(1), a single permanent
Global Note in registered form substantially in the form set forth in Exhibit A (the
“Permanent Regulation S Global Note,” and together with the Temporary Regulation S Global
Note, the “Regulation S Global Note”) duly executed by the Company and authenticated by the
Trustee as hereinafter provided shall be deposited with the Note Custodian for the Depositary. The
aggregate principal amount of the Regulation S Global Note may from time to time be increased or
decreased by adjustments made in the records of the Note Custodian for the Depositary or its
nominee, as hereinafter provided.



Notes offered and sold to institutional accredited investors (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) (“Institutional Accredited Investors”), if any,
shall be issued in the form of permanent U.S. Certificated Notes in registered form in
substantially the form set forth in Exhibit A (the “U.S. Certificated Notes”).
Notes issued pursuant to Section 2.6 in exchange for interests in the Rule 144A Global Note or the
Regulation S Global Note shall be in the form of permanent Certificated Notes in registered form
substantially in the form set forth in Exhibit A (the “Offshore Certificated
Notes”), in the case of those issued in exchange for the Regulation S Global Note, and U.S.
Certificated Notes, in the case of those issued in exchange for the Rule 144A Global Note.



The Offshore Certificated Notes and U.S. Certificated Notes are sometimes collectively herein
referred to as the “Certificated Notes.” The Rule 144A Global Note and the Regulation S
Global Note are sometimes referred to herein as the “Global Notes.”



Section 2.2. Execution and Authentication.



An Officer of the Company shall sign the Notes for the Company by manual or facsimile
signature.



If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid. Each Guarantor, if any, shall execute a
Guarantee in the manner set forth in Section 10.7.



A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.



The Trustee, upon a written order of the Company signed by two Officers of the Company,
together with the other documents required by Section 12.4, shall authenticate (i) Series A Notes
for original issue on the Issue Date in the aggregate principal amount not to exceed $200.0 million
and (ii) subsequent to the Issue Date and subject to Section 4.9, Additional Notes. The Trustee,
upon written order of the Company signed by two Officers of the Company, together with the other
documents required by Sections 12.4 and 12.5, shall authenticate Series B Notes; provided that such
Series B Notes shall be issuable only upon the valid surrender for cancellation of Series A Notes
of a like aggregate principal amount in accordance with the Exchange Offer or an exchange offer
specified in any registration rights agreement relating to Additional Notes or in connection with
one or more registered public offerings of Additional Notes. Such written order of the Company
shall specify the amount of Notes to
be authenticated and the date on which the original issue of Notes is to be authenticated.
Any Additional Notes shall be part of the same issue as the Notes being issued on the Issue Date
and will vote on all matters as one class with the Notes being issued on the Issue Date, including,
without limitation, waivers, amendments, redemptions, Change of Control Offers and Net Proceeds
Offers.


 


-23-









 





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



Section 2.3. Registrar and Paying Agent.



The Company shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes
and of their transfer and exchange. At the option of the Company, payment of interest and
Additional Interest (if any) may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, provided that payment by wire transfer of immediately available
funds will be required with respect to principal, Redemption Price and Purchase Price of, and
interest and Additional Interest (if any) on, all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the Trustee or the Paying Agent. The
Company may appoint one or more co-registrars and one or more additional paying agents. The term
“Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying
agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Paying Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar. The Depositary shall, by acceptance of a Global Note, agree that
transfers of beneficial interests in such Global Note may be effected only through a book-entry
system maintained by the Depositary (or its agent), and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book entry.



The Company initially appoints DBTCA to act as the Registrar, Paying Agent and Transfer Agent
and to act as Note Custodian with respect to the Global Notes.



The Paying Agent is hereby authorized to enter into a letter of representations with the
Depositary in the form provided by the Company and to act in accordance with such letter.



Section 2.4. Paying Agents to Hold Money in Trust.



The Company shall require each Paying Agent other than DBTCA or the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal of, premium, if any, interest and
Additional Interest (if any) on the Notes, and will notify the Trustee in writing of any default by
the Company in making any such payment. While any such default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the
money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying
Agent for the Notes.



Section 2.5. Holder Lists.



The Registrar shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee or DBTCA is not the Registrar, the Company shall furnish to the Trustee
at least five Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the Holders of Notes,
and the Company shall otherwise comply with TIA § 312(a).


 


-24-









 





Section 2.6. Transfer and Exchange.



(a) Transfer and Exchange Generally; Book Entry Provisions. Upon surrender for
registration of transfer of any Note to the Registrar, and satisfaction of the requirements for
such transfer set forth in this Section 2.6, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Notes of any authorized denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture.



Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.2. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.



All Notes presented or surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory
to the Company and the Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing. Except as otherwise provided in this Indenture, and in addition to the
requirements set forth in the legend referred to in Section 2.6(h)(i) below, in connection with any
transfer of Transfer Restricted Securities any request for transfer shall be accompanied by a
certification to the Trustee relating to the manner of such transfer substantially in the form of
Exhibit C(2).



(b) Book-Entry Provisions for the Global Notes. The Rule 144A Global Note and
Regulation S Global Note initially shall (i) be registered in the name of the Depositary or the
nominee of such Depositary, (ii) be delivered to the Note Custodian and (iii) bear legends as set
forth in Section 2.6(h).



Members of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Rule 144A Global Note or Regulation S Global Note, as the
case may be, held on their behalf by the Depositary, or the Note Custodian, or under the Rule 144A
Global Note or Regulation S Global Note, as the case may be, 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 the
Rule 144A Global Note or Regulation S Global Note, as the case may be, 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.



Transfers of the Rule 144A Global Note and the Regulation S Global Note shall be limited to
transfers of such Rule 144A Global Note or Regulation S Global Note in whole, but not in part, to
the Depositary, its successors or their respective nominees. Beneficial interests in the Rule 144A
Global Note and the Regulation S Global Note may be transferred in accordance with the applicable
rules and procedures of the Depositary and the provisions of this Section 2.6. The registration of
transfer and exchange of beneficial interests in a Global Note, which does not involve the issuance
of a Certificated Note, shall be effected through the Depositary, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of the Depositary
therefor. Neither the Trustee nor any Agent shall have any responsibility or liability for any act
or omission of the Depositary.



At any time at the request of the beneficial holder of an interest in the Rule 144A Global
Note or Permanent Regulation S Global Note to obtain a Certificated Note, such beneficial holder
shall be entitled to obtain a Certificated Note upon written request to the Trustee and the Note
Custodian in accordance with the standing instructions and procedures existing between the Note
Custodian and Depositary for the issuance thereof. Upon receipt of any such request, the Trustee,
or the Note Custodian at the direction of the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Note Custodian, the aggregate
principal amount of the Rule 144A Global Note or Permanent Regulation S Global Note, as
appropriate,
to be reduced by the principal amount of the Certificated Note issued upon such request to
such beneficial holder and, following such reduction, the Company will execute and the Trustee will
authenticate and deliver to such beneficial holder (or its nominee) a Certificated Note or
Certificated Notes in the appropriate aggregate principal amount in the name of such beneficial
holder (or its nominee) and bearing such restrictive legends as may be required by this Indenture.


 


-25-









 





(c) Transfers to Non-QIB Institutional Accredited Investors. The following provisions
shall apply with respect to the registration of any proposed transfer of a Transfer Restricted
Security to any Institutional Accredited Investor that is not a QIB (other than any Person that is
not a U.S. Person as defined under Regulation S, a “Foreign Person”):




(i) the Registrar shall register the transfer of any Note, whether or not such Note
bears the Private Placement Legend, if (x) the proposed transferee has certified in writing
to the Registrar that the requested transfer is at least two years after the later of (A)
the Issue Date of the Notes and (B) the last date on which any Notes were acquired from an
Affiliate of the Company and has delivered legal opinions and such other information as the
Trustee and the Company may reasonably require, or (y) the proposed transferee has delivered
to the Registrar (A) a certificate substantially in the form of Exhibit D and
(B) such certifications, legal opinions and other information as the Trustee, the Registrar
and the Company may reasonably request to confirm that such transaction is in compliance
with the Securities Act; and




(ii) if the proposed transferor is an Agent Member holding a beneficial interest in the
Global Note, upon receipt by the Registrar of (x) the documents required by clause (i), 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 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 Certificated Notes of like tenor and
amount.



(d) Transfers to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a Transfer Restricted Security to a QIB (other than
Foreign Persons):




(i) if the Note to be transferred consists of Certificated Notes or an interest in the
Regulation S Global Note, the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on a certificate
substantially in the form of Exhibit C(2) 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 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




(ii) if the proposed transferee is an Agent Member, and the Note to be transferred
consists of Certificated Notes or an interest in the Regulation S Global Note, upon receipt
by the Registrar of (x) the documents referred to in clause (i), 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 an increase in the principal amount of the
Rule 144A Global Note in an amount equal to the principal amount of the Certificated Notes
or the interest in the Regulation S Global Note, as the case may be, to be transferred, and
the Trustee shall cancel the Certificated Notes or decrease the amount of the Regulation S
Global Note so transferred.



(e) Transfers of Interests in the Temporary Regulation S Global Note. The following
provisions shall apply with respect to the registration of any proposed transfer of interests in
the Temporary Regulation S Global Note:




(i) the Registrar shall register the transfer of an interest in the Temporary
Regulation S Global Certificate if (x) the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit E and the transferee
shall have delivered a certificate substantially in the form of Exhibit C(1)
stating, among other things, that the proposed transferee is a Foreign Person or (y) the
proposed transferee is a QIB and the proposed transferor has checked the box provided for on
a certificate substantially in the form of Exhibit C(2) 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 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


 


-26-









 






(ii) if the proposed transferee is an Agent Member, upon receipt by the Registrar of
(x) the documents referred to in clause (i), 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 an increase in the principal amount of the Rule 144A Global Note in
an amount equal to the principal amount of the Temporary Regulation S Global Note to be
transferred, and the Note Custodian, shall decrease the amount of the Temporary Regulation S
Global Note.



(f) Transfers to Foreign Persons. The following provisions shall apply with respect
to any transfer of a Transfer Restricted Security to a Foreign Person:




(i) the Registrar shall register any proposed transfer of a Note to a Foreign Person
upon receipt of a certificate substantially in the form of Exhibit E from the
proposed transferor and such certifications, legal opinions and other information as the
Trustee or the Company may reasonably request; and




(ii) (a) if the proposed transferor is an Agent Member holding a beneficial interest in
the Rule 144A Global Note or the Note to be transferred consists of Certificated Notes, upon
receipt by the Registrar of (x) the documents required by clause (i), 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 Rule 144A Global Note in an amount equal to the principal amount of the beneficial
interest in the Rule 144A Global Note or cancel the Certificated Notes, as the case may be,
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 Regulation S Global Note in an amount equal to the principal
amount of the Certificated Notes to be transferred, and the Trustee shall decrease the
amount of the Rule 144A Global Note.



(g) The Depositary. The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary
with respect to the Global Notes. Initially, the Rule 144A Global Note and the Regulation S Global
Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Note Custodian for Cede & Co.



Notes in Certificated form issued in exchange for all or a part of a Global Note pursuant to
this Section 2.6 shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such
Certificated Notes in Certificated form to the persons in whose names such Notes in Certificated
form are so registered.



Certificated Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Rule 144A Global Note or the Permanent Regulation S Global Note, as the
case may be, if at any time:




(i) the Depositary for the Notes notifies the Company that the Depositary is unwilling
or unable to continue as Depositary for the Rule 144A Global Note or the Permanent
Regulation S Global Note, as the case may be, and a successor Depositary is not appointed by
the Company within 90 days after delivery of such notice; or


 


-27-









 






(ii) the Company, at its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of Certificated Notes under this Indenture,
and the Company shall execute, and the Trustee shall, upon receipt of an authentication order in
accordance with Section 2.2, authenticate and deliver Certificated Notes in an aggregate principal
amount equal to the principal amount of the Rule 144A Global Note or the Permanent Regulation S
Global Note, as the case may be, in exchange for such Global Notes.




(h) Legends.



(i) Except as permitted by the following paragraphs (ii) and (iii), each Note certificate
evidencing Global Notes and Certificated Notes (and all Notes issued in exchange therefor or
substitution thereof) shall (x) be subject to the restrictions on transfer set forth in this
Section 2.6 (including those set forth in the legend below) unless such restrictions on transfer
shall be waived by written consent of the Company, and the holder of each Transfer Restricted
Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on
transfer and (y) bear the legend set forth below (the “Private Placement Legend”):




“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
(AN “ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
MOBILE MINI, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE
AND REGISTRAR A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE AND REGISTRAR FOR THIS NOTE), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO MOBILE MINI, INC. IF MOBILE MINI,
INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE,
IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE, REGISTRAR AND MOBILE MINI, INC. 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 IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”


 


-28-









 





(ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities Act:




(a) in the case of any Transfer Restricted Security that is a Certificated Note, the
Registrar shall permit the Holder thereof to exchange such Transfer Restricted Security for
a Certificated Note that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and




(b) in the case of any Transfer Restricted Security represented by a Global Note, such
Transfer Restricted Security shall not be required to bear the legend set forth in (i)
above, but shall continue to be subject to the provisions of Section 2.6(b); provided,
however, that with respect to any request for an exchange of a Transfer Restricted Security
that is represented by a Global Note for a Certificated Note that does not bear the legend
set forth in (i) above, which request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such request is being made pursuant to Rule
144 (such certifications to be substantially in the form of Exhibit C(2));



in each case, upon the delivery by the transferor of such opinions and other information as the
Trustee, the Registrar or the Company shall reasonably request.



(iii) Notwithstanding the foregoing, upon consummation of the Exchange Offer, the Company
shall issue and, upon receipt of an authentication order in accordance with Section 2.2, the
Trustee shall authenticate Series B Notes in exchange for Series A Notes accepted for exchange in
the Exchange Offer, which Series B Notes shall not bear the legend set forth in (i) above, and the
Registrar shall rescind any restriction on the transfer of such Series A Notes, in each case unless
the Company has notified the Registrar in writing that the Holder of such Series A Notes is either
(A) a broker-dealer, (B) a Person participating in the distribution of the Series A Notes or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company.



(iv) Each Global Note, whether or not a Transfer Restricted Security, shall also bear the
following legend on the face thereof:




THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.


 


-29-









 






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



(v) Any Global Note may be endorsed with or have incorporated in the text thereof such legends
or recitals or changes not inconsistent with the provisions of this Indenture as may be required by
the Note Custodian, the Depositary or by the National Association of Securities Dealers, Inc. in
order for the Notes to be tradable on the PORTAL Market or tradable on Euroclear or Clearstream or
as may be required for the Notes to be tradable on any other market developed for trading of
securities pursuant to Rule 144A or Regulation S under the Securities Act or required to comply
with any applicable law or any regulation thereunder or with the rules and regulations of any
securities exchange or automated quotation system upon which the Notes may be listed or traded or
to conform with any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Notes are subject.



(i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in Global Notes have been exchanged for Certificated Notes, redeemed, repurchased or
cancelled, all Global Notes shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for Certificated Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Notes shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or the Note Custodian, at the
direction of the Trustee, to reflect such reduction. In the event of any transfer of any
beneficial interest between the Rule 144A Global Note and the Regulation S Global Note in
accordance with the standing procedures and instructions between the Depositary and the Note
Custodian and the transfer restrictions set forth herein, the aggregate principal amount of each of
the Rule 144A Global Note and the Regulation S Global Note shall be appropriately increased or
decreased, as the case may be, and an endorsement shall be made on each of the Rule 144A Global
Note and the Regulation S Global Note by the Trustee or the Note Custodian, at the direction of the
Trustee, to reflect such reduction or increase.




(j) General Provisions Relating to Transfers and Exchanges.



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



(ii) No service charge shall be made to a Holder for any registration of transfer or exchange,
but the 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 similar
governmental charge payable upon exchange or transfer pursuant to Section 2.6).



(iii) The Registrar shall not be required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.



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


 


-30-









 






(v) The Company shall not be required:




(a) to issue, to register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.2 and ending at the close of business on the day of selection; or




(b) to register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part; or




(c) to register the transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.



(vi) Prior to due presentment of the registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of all payments with respect to such Notes, and neither
the Trustee, any Agent nor the Company shall be affected by notice to the contrary.



(vii) The Trustee shall authenticate Certificated Notes and Global Notes in accordance with
the provisions of Section 2.2.



(viii) Upon surrender for registration of transfer of any Notes at the office or agency of the
Issuer designated pursuant to Section 4.2 hereof, the Issuer shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or transfers, one or more
replacement Notes of any authorized denomination or denominations of a like aggregate amount.



(ix) At the option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination or denominations of a like aggregate principal amount upon surrender of the Notes to
be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail,
the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled
to in accordance with the provisions of the Section 2.2 hereof.



(x) Each Holder of a Note agrees to indemnify the Issuer and the Trustee against any liability
that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any
provision of this Indenture and/or applicable U.S. federal or state securities law.



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



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



Section 2.7. Replacement Notes.



If any mutilated Note is surrendered to the Trustee or either the Company or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an authentication order in accordance with
Section 2.2, shall authenticate a replacement Note if the Trustee’s requirements for replacement of
Notes are met. If required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Trustee and the Company may charge the Holder for their expenses
in replacing a Note.


 


-31-









 





Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.



Section 2.8. Outstanding Notes.



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



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



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



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



Section 2.9. Treasury Notes.



In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or by any Affiliate thereof shall be
considered as though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver of consent, only Notes that a
Responsible Officer of the Trustee knows are so owned shall be so disregarded. The Company agrees
to notify the Trustee of the existence of any such treasury Notes or Notes owned by the Company or
an Affiliate thereof.



Section 2.10. Temporary Notes.



Until Certificated Notes are ready for delivery, the Company may prepare and the Trustee, upon
receipt of an authentication order in accordance with Section 2.2, shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of Certificated Notes, but may have such
variations as the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Certificated Notes in exchange for temporary Notes.



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



Section 2.11. Cancellation.



The Company at any time may deliver Notes to the Trustee or Registrar for cancellation. The
Paying Agent and Transfer Agent shall forward to the Trustee or the Registrar any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee or the Registrar and no one
else shall cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall destroy all canceled Notes in accordance with the Trustee’s
or the Registrar’s usual procedures. The Trustee shall maintain a record of the destruction of all
canceled Notes. Certification of the destruction of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes that have been paid or that have
been delivered to the Trustee or the Registrar for cancellation.


 


-32-









 





Section 2.12. Defaulted Interest.



If the Company defaults in a payment of interest on the Notes, the Company shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Section 4.1. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.



Section 2.13. Persons Deemed Owners.



Prior to due presentment of a Note for registration of transfer and subject to Section 2.12,
the Company, the Trustee, any Paying Agent, any co-registrar and any Registrar may deem and treat
the person in whose name any Note shall be registered upon the register of Notes kept by the
Registrar as the absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by anyone other than
the Company, any co-registrar or any Registrar) for the purpose of receiving all payments with
respect to such Note and for all other purposes, and none of the Company, the Trustee, any Paying
Agent, any co-registrar or any Registrar shall be affected by any notice to the contrary.



Section 2.14. CUSIP Numbers.



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



Section 2.15. Designation.



The Indebtedness evidenced by the Notes is hereby irrevocably designated as “senior
indebtedness” or such other term denoting seniority for the purposes of any future Indebtedness of
the Company which the Company makes subordinate to any senior indebtedness or such other term
denoting seniority.



Section 2.16. Additional Interest.



In the event that the Company is required to pay Additional Interest to Holders of Notes
pursuant to the Registration Rights Agreement, the Company will provide to the Trustee and the
Paying Agent written notice of its obligation to pay Additional Interest no later than fifteen days
prior to the proposed payment date for the Additional Interest and an Officers’ Certificate shall
set forth the amount of Additional Interest to be paid by the Company on such payment date. The
Trustee and the Paying Agent shall not at any time be under any duty or responsibility to any
Holder of Notes to determine the Additional Interest, or with respect to the nature, extent, or
calculation of the amount of Additional Interest owed, or with respect to the method employed in
such calculation of the Additional Interest.


 


-33-









 





ARTICLE III.




REDEMPTION AND REPURCHASE




Section 3.1. Notices to Trustee.



If the Company elects to redeem Notes pursuant to the provisions of Section 3.7 or 3.8, it
shall furnish to the Trustee and Registrar, at least 45 days but not more than 60 days before the
Redemption Date, an Officers’ Certificate setting forth the Section of this Indenture pursuant to
which the redemption shall occur, the Redemption Date, the principal amount of Notes to be redeemed
and the Redemption Price.



If the Company is required to offer to repurchase Notes pursuant to the provisions of
Section 4.10 or 4.15, it shall notify the Trustee and Registrar in writing, at least 45 days but
not more than 60 days before the Purchase Date, of the Section of this Indenture pursuant to which
the repurchase shall occur, the Purchase Date, the principal amount of Notes required to be
repurchased and the Purchase Price and shall furnish to the Registrar an Officers’ Certificate to
the effect that (a) the Company is required to make or has made a Net Proceeds Offer or a Change of
Control Offer, as the case may be, and (b) the conditions set forth in Section 4.10 or 4.15, as the
case may be, have been satisfied.



If the Registrar is not the Trustee, the Company shall, concurrently with each notice of
redemption or repurchase, cause the Registrar to deliver to the Trustee a certificate (upon which
the Trustee may rely) setting forth the principal amounts of Notes held by each Holder.



Section 3.2. Selection of Notes.



Except as set forth below, if less than all of the Notes are to be redeemed, the Registrar
shall select the Notes or portions thereof to be redeemed in compliance with the requirements of
the national securities exchange, if any, on which the Notes are listed or, if the Notes are not
then listed on a national securities exchange, on a pro rata basis, by lot or by such method as the
Registrar shall deem fair and appropriate (subject to DTC procedures). In the event of partial
redemption by lot, the particular Notes or portions thereof to be redeemed shall be selected,
unless otherwise provided herein, not less than 45 nor more than 60 days prior to the Redemption
Date by the Registrar from the outstanding Notes not previously called for redemption.



If less than all of the Notes tendered are to be repurchased pursuant to the provisions of
Section 4.10, the Registrar shall select the Notes or portions thereof to be repurchased in
compliance with Section 4.10, as applicable. In the event of partial repurchase by lot, the
particular Notes or portions thereof to be repurchased shall be selected at the close of business
of the last Business Day prior to the Purchase Date. If less than all of the Notes tendered are to
be redeemed pursuant to the provisions of Section 3.7 or 3.8, the Registrar shall select the Notes
only pro rata or on as nearly a pro rata basis as is practicable (subject to DTC procedures) or by
such other method as may be required by law.



The Registrar shall promptly notify the Company in writing of the Notes or portions thereof
selected for redemption or repurchase and, in the case of any Note selected for partial redemption
or repurchase, the principal amount thereof to be redeemed or repurchased. Notes and portions
thereof selected shall be in amounts of $2,000 or integral multiples of $1,000; except that if all
of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed. No Notes of a principal amount of
$2,000 or less shall be redeemed in part.



Section 3.3. Notice of Optional or Special Redemption.



In the event Notes are to be redeemed pursuant to Section 3.7 or 3.8, at least 30 days but not
more than 60 days before the Redemption Date, the Company shall mail by first-class mail or shall
deliver on such timeframe in accordance with DTC procedures a notice of redemption to each Holder
whose Notes are to be redeemed in whole or in part at its registered address as it appears on the
books of the Registrar, with a copy to the Trustee.


 


-34-









 





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




(a) the Redemption Date;




(b) the Redemption Price;




(c) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the Redemption Date, upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be issued;




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




(e) that Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price, Additional Interest, if any, and, unless the Redemption Date is after
a record date and/or before the succeeding interest payment date, accrued interest thereon
to the Redemption Date;




(f) that, unless the Company defaults in making the redemption payment, interest and
any Additional Interest on Notes called for redemption will cease to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Notes is to receive
payment of the Redemption Price, any Additional Interest and, unless the Redemption Date is
after a record date and/or before the succeeding interest payment date, accrued interest
thereon to the Redemption Date upon surrender to the Paying Agent of the Notes redeemed;




(g) if fewer than all the Notes are to be redeemed, the identification of the
particular Notes (or portions thereof) to be redeemed, as well as the aggregate principal
amount of the Notes to be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption; and




(h) the section of the Notes pursuant to which the Notes called for redemption are
being redeemed.



At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided that the Company shall deliver to the Trustee, at least 45 days
prior to the Redemption Date, an Officers’ Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in the preceding
paragraph.



Section 3.4. Effect of Notice of Redemption.



Once notice of redemption is mailed, Notes or portions thereof called for redemption become
due and payable on the Redemption Date at the Redemption Price. Upon surrender to the Paying
Agent, such Notes or portions thereof shall be paid at the Redemption Price, plus Additional
Interest, if any, and accrued interest to but not including the Redemption Date; provided, however,
that installments of interest which are due and payable on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such, at the close of business on the relevant
record date for the payment of such installment of interest.



Section 3.5. Deposit of Redemption Price or Purchase Price.



On or before 10:00 A.M. New York City time on each Redemption Date or Purchase Date, the
Company shall irrevocably deposit with the Paying Agent money sufficient to pay the aggregate
amount due on all Notes to be redeemed or repurchased on that date, including without limitation
any accrued and unpaid interest and Additional Interest, if any, to the Redemption Date or Purchase
Date. The Company, the Trustee or the Paying Agent shall promptly return to the Company any money
not required for that purpose.


 


-35-









 





Unless the Company defaults in making such payment, interest and Additional Interest, if any,
on the Notes to be redeemed or repurchased will cease to accrue on the applicable Redemption Date
or Purchase Date,
whether or not such Notes are presented for payment. If any Note called for redemption shall
not be so paid upon surrender because of the failure of the Company to comply with the preceding
paragraph, interest will be paid on the unpaid principal, from the applicable Redemption Date or
Purchase Date until such principal is paid, and on any interest not paid on such unpaid principal,
in each case at the rate provided in the Notes and in Section 4.1.



Section 3.6. Notes Redeemed or Repurchased in Part.



Upon surrender of a Note that is redeemed or repurchased in part, the Company shall issue and
the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to portion of the Note surrendered that is not to be redeemed or repurchased.



Section 3.7. Optional Redemption.



The Company may redeem the Notes at any time at its option, in whole or in part, upon not less
than 45 days notice to the Trustee and Paying Agent and not less than 30 nor more than 60 days’
notice to holders of the Notes. To redeem the Notes prior to December 1, 2015, the Company must
pay a redemption price equal to the greater of:




(a) 100% of the principal amount of the Notes to be redeemed; and




(b) the sum of the present values of (1) the redemption price of the Notes at
December 1, 2015 (as set forth below) and (2) the remaining scheduled payments of interest
from the Redemption Date to December 1, 2015, but excluding accrued and unpaid interest, if
any, to the Redemption Date, discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), at the Treasury Rate
(determined on the second business day immediately preceding the Redemption Date) plus 50
basis points,



plus, in either case, 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).



Any notice to Holders of such a redemption will include the appropriate calculation of the
redemption price, but need not include the redemption price itself. The actual redemption price,
calculated as described above, will be set forth in an Officers’ Certificate delivered to the
Trustee and the Paying Agent no later than two business days prior to the Redemption Date (unless
clause (b) of the definition of “Comparable Treasury Price” is applicable, in which case such
Officers’ Certificate shall be delivered on the Redemption Date).



Beginning on December 1, 2015, the Company may redeem the Notes at its option, in whole or in
part, upon not less than 45 days notice to the Trustee and Paying Agent and not less than 30 nor
more than 60 days’ notice to the holders of the Notes, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on December 1 of the year set forth below:



	 	 	 	 	 
	Year	 	Percentage	 
	 
	 	 	 	 
	2015
	 	 	103.938	%
	2016
	 	 	102.625	%
	2017
	 	 	101.313	%
	2018 and thereafter
	 	 	100.000	%




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




 


-36-









 






Section 3.8. Optional Redemption upon Equity Offerings.



At any time or from time to time, in the event the Company completes one or more Equity
Offerings on or before December 1, 2013, the Company may, at its option, use the net cash proceeds
from any such Equity Offerings to redeem up to 35% of the principal amount of the Notes (a “Special
Redemption”) at a Redemption Price of 107.875% of the principal amount thereof, together with
accrued and unpaid interest thereon, if any, to the Redemption Date, provided that (1) at least 65%
of the principal amount of the Notes issued hereunder remains outstanding immediately after each
such Special Redemption; and (2) such Special Redemption shall occur not more than 90 days after
the date of the closing of the applicable Equity Offering. Any redemption pursuant to this
Section 3.8 shall be made pursuant to the provisions of Sections 3.1 through 3.6.



Section 3.9. Repurchase upon Change of Control Offer.



(a) In the event that, pursuant to Section 4.15, the Company shall be required to commence a
Change of Control Offer, it shall follow the procedures specified in this Section 3.9.



(b) The Change of Control Offer shall remain open for a period from the date of the mailing of
the notice of the Change of Control Offer described in paragraph (c) until a date determined by the
Company which is at least 30 but no more than 60 days from the date of mailing of such notice and
no longer, except to the extent that a longer period is required by applicable law (the “Change
of Control Offer Period”). On the Purchase Date, which shall be no earlier than 30 days prior
to the last day of the Change of Control Offer Period and no later than such last day, the Company
shall purchase the principal amount of Notes properly tendered in response to the Change of Control
Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments
are made.



(c) Within 30 days following any Change of Control, the Company shall send, by first class
mail, a notice to the Trustee and the Paying Agent and each of the Holders. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Change of Control Offer. The Change of Control Offer shall be made to all Holders. The
notice, which shall govern the terms of the Change of Control Offer, shall state:




(1) the transaction or transactions that constitute the Change of Control, providing
information, to the extent publicly available, regarding the Person or Persons acquiring
control, and stating that the Change of Control Offer is being made pursuant to this
Section 3.9 and Section 4.15 and that, to the extent lawful, all Notes properly tendered
will be accepted for payment;




(2) the Purchase Price, the last day of the Change of Control Offer Period, and the
Purchase Date;




(3) that any Note not properly tendered or otherwise not accepted for repurchase will
continue to accrue interest and Additional Interest, if any;




(4) that, unless the Company defaults in the payment of the amount due on the Purchase
Date, all Notes or portions thereof accepted for repurchase pursuant to the Change of
Control Offer shall cease to accrue interest and Additional Interest, if any, after the
Purchase Date;




(5) that Holders electing to have any Notes purchased pursuant to the Change of Control
Offer will be required to tender the Notes, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice not later than the third Business Day preceding the Purchase Date;




(6) that Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Change of Control Offer Period, a telegram, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for repurchase, and a
statement that such Holder is withdrawing his election to have the Notes redeemed in whole
or in part; and


 


-37-









 






(7) that Holders whose Notes are being repurchased only in part will be issued new
Notes equal in principal amount to the portion of the Notes tendered (or transferred by
book-entry transfer) that is not to be repurchased, which portion must be equal to $2,000 in
principal amount or an integral multiple of $1,000 in excess thereof.



(d) On or before 10:00 A.M. New York City time on the Purchase Date, the Company shall to the
extent lawful, (i) accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Purchase
Price, together with accrued and unpaid interest and Additional Interest, if any, thereon to the
Purchase Date in respect of all Notes or portions thereof so tendered and accepted for repurchase
and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an
Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being
repurchased by the Company. The Paying Agent shall promptly (but in any case not later than five
days after the Purchase Date) mail to each Holder of Notes so repurchased the amount due in
connection with such Notes, and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company in the form of an Officers’ Certificate shall authenticate and
mail or deliver (or cause to transfer by book entry) to each relevant Holder a new Note, in a
principal amount equal to any unpurchased portion of the Notes surrendered to the Holder thereof;
provided that each such new Note shall be in a principal amount of 2,000 or an integral multiple of
$1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Purchase Date.



(e) If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Additional Interest, if any, in each
case to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be payable to Holders
pursuant to the Change of Control Offer.



Section 3.10. Repurchase upon Application of Net Proceeds.



(a) In the event that, pursuant to Section 4.10, the Company shall be required to commence a
Net Proceeds Offer, it shall follow the procedures specified in this Section 3.10.



(b) The notice of a Net Proceeds Offer shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Each Net Proceeds Offer
will be mailed to all record Holders as shown on the register of Holders within 30 days following
the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders
may elect to tender their Notes in whole or in part in a principal amount of $2,000 (or integral
multiples of $1,000 in excess thereof) in exchange for cash. A Net Proceeds Offer shall remain
open for a period of 20 Business Days or such longer period as may be required by law. Upon the
expiration of that period, the Company shall promptly (but in any event within three Business Days
following such expiration) purchase the Notes and any such other pari passu Indebtedness properly
tendered in accordance with this Section 3.10 and Section 4.10. The notice, which shall govern the
terms of the Net Proceeds Offer, shall state:




(1) that the Net Proceeds Offer is being made pursuant to this Section 3.10 and
Section 4.10;




(2) the Net Proceeds Offer Amount, the Purchase Price and the Purchase Date;




(3) that any Note not properly tendered or otherwise not accepted for repurchase shall
continue to accrue interest and Additional Interest, if any;




(4) that, unless the Company defaults in the payment of the amount due on the Purchase
Date, all Notes or portions thereof accepted for repurchase pursuant to the Net Proceeds
Offer shall cease to accrue interest and Additional Interest, if any, after the Purchase
Date;




(5) that Holders electing to have any Notes repurchased pursuant to any Net Proceeds
Offer shall be required to tender the Notes, with the form entitled Option of Holder to
Elect Purchase on the reverse of the Notes completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the Purchase Date;


 


-38-









 






(6) that Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the Purchase
Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for repurchase and a statement that such Holder is
withdrawing his election to have such Notes repurchased in whole or in part; and




(7) that, to the extent Holders properly tender Notes (along with any other pari passu
Indebtedness of the Company properly tendered) in an amount exceeding the Net Proceeds Offer
Amount, the tendered Notes will be purchased pro rata based on the aggregate amounts of
Notes and other pari passu Indebtedness of the Company properly tendered (and the Trustee
shall select the tendered Notes of tendering Holders pro rata based on the amount of Notes
and other pari passu Indebtedness of the Company properly tendered).



(c) On or before 10:00 A.M. New York City time on the Purchase Date, the Company shall to the
extent lawful, (i) accept for payment, pro rata in accordance with this Indenture to the extent
necessary, the Net Proceeds Offer Amount of Notes or portions thereof properly tendered pursuant to
the Net Proceeds Offer (along with any other pari passu Indebtedness of the Company properly
tendered), or if less than the Net Proceeds Offer Amount has been tendered, all Notes properly
tendered, (ii) deposit with the Paying Agent an amount equal to the Purchase Price, plus
accrued and unpaid interest and Additional Interest, if any, thereon to the Purchase Date in
respect of all Notes or portions thereof so tendered and accepted for repurchase and (iii) deliver
or cause to be delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions thereof being repurchased
by the Company. The Paying Agent shall promptly (but in any case not later than five days after
the Purchase Date) mail to each Holder of Notes so repurchased the amount due in connection with
such Notes, and the Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company in the form of an Officers’ Certificate shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any unpurchased portion to the Holder
thereof; provided that each such new Note shall be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Net
Proceeds Offer on or as soon as practicable after the Purchase Date.



(d) If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Additional Interest, if any, in each
case to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be payable to Holders to
the Net Proceeds Offer.



ARTICLE IV.




COVENANTS




Section 4.1. Payment of Principal and Interest.



(a) The Company shall pay or cause to be paid the principal, Redemption Price and Purchase
Price of, and interest and Additional Interest (if any) on, the outstanding Notes on the dates, in
the amounts and in the manner provided herein and in the Notes. Principal, Redemption Price,
Purchase Price and interest shall be considered paid on the date due if the Paying Agent, if other
than the Company, holds as of 10:00 A.M. New York City time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay the aggregate
amount then due. The Company shall pay all Additional Interest, if any, on the dates, in the
amounts and in the manner set forth in the Registration Rights Agreement.



(b) The Company shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal, Redemption Price and Purchase Price at the rate equal to
2% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace period) at the same rate
to the extent lawful.


 


-39-









 





Section 4.2. Maintenance of Office or Agency.



(a) The Company shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Office of the Trustee.



(b) 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, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



(c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.3. The Trustee may resign such agency at any
time by giving written notice to the Company no later than 30 days prior to the effective date of
such resignation.



Section 4.3. Reports.



(a) Whether or not required by the rules and regulations of the Commission, so long as any
Notes are outstanding, the Company will furnish the Trustee, for delivery to the Holders of the
Notes upon their written request therefor:




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




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



in each case within the time periods specified in the Commission’s rules and regulations. The
Company shall at all times comply with TIA § 314(a).



(b) In addition, following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information and reports with the Commission
for public availability within the time periods specified in the Commission’s rules and regulations
(unless the Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the Company has agreed
that, for so long as any Notes remain outstanding, it will furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


-40-









 





Section 4.4. Compliance Certificate.



(a) The Company and each Guarantor shall deliver to the Trustee, within 105 days after the end
of each fiscal year commencing with the fiscal year ending December 31, 2011, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge, after due inquiry, the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in Default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (and, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default) of which he or she may have knowledge, and that to the best of his or her knowledge, after
due inquiry, no event has occurred and remains in existence by reason of which payments on account
of the principal of or interest, if any, on the Notes are prohibited or if such event has occurred,
a description of the event.



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



(c) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
promptly upon any Officer of the Company obtaining knowledge of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and describing its status with
reasonable particularity and what action the Company is taking or proposes to take with respect
thereto.



Section 4.5. Taxes.



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



Section 4.6. Stay, Extension and Usury Laws.



The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of every such power as
though such law has not been enacted.



Section 4.7. Limitation on Restricted Payments.



(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly (each of the actions set forth in clauses (1), (2), (3) and (4) below being
referred to as a “Restricted Payment”):




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




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


 


-41-









 






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




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



if at the time of such Restricted Payment or immediately after giving effect thereto,





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




(ii) the Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.9(a); or




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




(w) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
from April 1, 2003 to the date the Restricted Payment occurs (the “Reference
Date”) (treating such period as a single accounting period); plus




(x) 100% of the aggregate net cash proceeds (or the fair market value of any
marketable securities or other property) received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale subsequent to
July 1, 2003 and on or prior to the Reference Date of (1) Qualified Capital Stock of
the Company, (2) warrants, options or other rights to acquire Qualified Capital
Stock of the Company (but excluding any debt security that is convertible into, or
exchangeable for, Qualified Capital Stock) or (3) convertible or exchangeable
Disqualified Capital Stock or debt securities that have been converted or exchanged
in accordance with their terms for Qualified Capital Stock; plus




(y) without duplication of any amounts included in clause (iii)(x) above, 100%
of the aggregate net cash proceeds (or the fair market value of any marketable
securities or other property) from any equity contribution received by the Company
from a holder of the Company’s Capital Stock subsequent to July 1, 2003 and on or
prior to the Reference Date (excluding, in the case of clauses (iii)(x) and (y), any
net cash proceeds (or the fair market value of any marketable securities or other
property) from an Equity Offering to the extent used to redeem the Notes in
compliance with the provisions set forth under Section 3.8); plus




(z) without duplication, the sum of:




(1) the aggregate amount returned in cash on or with respect to
Investments (other than Permitted Investments) made subsequent to July 1,
2003 whether through interest payments, principal payments, dividends or
other distributions or payments;




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




(3) upon redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the fair market value of such Subsidiary;




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


 


-42-









 





(b) Notwithstanding the foregoing, the provisions of paragraph (a) of this Section 4.7, the
provisions of this Section 4.7 do not prohibit:




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




(2) the redemption, repurchase, retirement, defeasance or other acquisition of any
 shares of Capital Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Restricted Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company;




(3) the redemption, repurchase, retirement, defeasance or other acquisition of any
Subordinated Indebtedness either (i) solely in exchange for shares of Qualified Capital
Stock of the Company, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Restricted Subsidiary of the Company) of
(a) shares of Qualified Capital Stock of the Company or (b) Refinancing Indebtedness;




(4) so long as no Default or Event of Default shall have occurred and be continuing
redemption, repurchase, retirement, defeasance or other acquisition by the Company of Common
Stock of the Company from officers, directors and employees of the Company or any of its
Subsidiaries or their authorized representatives upon the death, disability or termination
of employment of such employees or termination of their seat on the board of the Company, in
an aggregate amount not to exceed the sum of (x) $3.0 million plus (y) $2.0 million in any
calendar year since the Issue Date, with any unused amounts in such calendar year being
carried forward to the next succeeding calendar year; provided that the aggregate amount of
repurchases that may be made pursuant to this clause (4) in any calendar year shall not
exceed $9.0 million in any calendar year;




(5) so long as no Default or Event of Default shall have occurred and be continuing,
Restricted Payments in an aggregate amount not to exceed $25.0 million;




(6) repurchases of Qualified Capital Stock deemed to occur upon the exercise of stock
options, warrants or other convertible or exchangeable securities;




(7) repurchases of Qualified Capital Stock constituting fractional shares in an
aggregate amount not to exceed $1.0 million; and




(8) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Capital Stock on a pro rata basis.



If the Company makes a Restricted Payment which, at the time of the making of such Restricted
Payment, in the good faith determination of the Board of Directors of the Company, would be
permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to have
been made in compliance with this Indenture notwithstanding any subsequent adjustment made in good
faith to the Company’s financial statements affecting Consolidated Net Income.



In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date
in accordance with clause (iii) of Section 4.7(a), amounts expended pursuant to clauses (1),
(2)(ii), 3(ii)(a) and (4) shall be included in such calculation.


 


-43-









 





Section 4.8. Limitation of Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.



The Company will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:




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




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




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



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




(a) applicable law, rule, regulation or order;




(b) this Indenture, the Notes and the Guarantees;




(c) the Credit Agreement;




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




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




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




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




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




(i) Purchase Money Indebtedness for property acquired in the ordinary course of
business that only impose restrictions on the property so acquired;




(j) any agreement pursuant to which Indebtedness was issued if (A) the encumbrance or
restriction applies only in the event of a payment default or a default with respect to a
financial covenant contained in such Indebtedness, (B) the encumbrance or restriction is not
materially more disadvantageous to the Holders than is customary in comparable financings
(as determined by the Company) and (C) the Company determines that any such encumbrance or
restriction will not materially affect the Company’s ability to make principal or interest
payments on the Notes;




(k) Indebtedness permitted to be incurred subsequent to the date of this Indenture
pursuant to Section 4.9; provided that such encumbrances or restrictions are no less
favorable to the Company, taken as a whole, in any material respect than the encumbrances or
restrictions contained in the Credit Agreement as in effect on the Issue Date;


 


-44-









 






(l) any Qualified Securitization Transaction; provided that such encumbrances and
restrictions are customarily required by the institutional sponsor or arranger at the time
of entering into such Qualified Securitization Transaction in similar types of documents
relating to the purchase of similar Receivables in connection with the financing therewith;




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




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



Section 4.9. Limitation on Incurrence of Additional Indebtedness.



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



(b) The Company will not, and will not permit any Guarantor to directly or indirectly, incur
any Indebtedness which by its terms (or by the terms of any agreement governing such Indebtedness)
is expressly subordinated in right of payment to any other Indebtedness of the Company or such
Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of
any agreement governing such Indebtedness) made expressly subordinate to the Notes or the
applicable Guarantee, as the case may be, to the same extent and in the same manner as such
Indebtedness is subordinated to other Indebtedness of the Company or such Guarantor, as the case
may be.



Section 4.10. Limitation on Asset Sales.



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




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




(2) at least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash, Cash
Equivalents and/or Replacement Assets (as defined below) (or a combination thereof) and is
received at the time of such disposition; provided that




(A) the amount of any liabilities (as shown on the Company’s or such Restricted
Subsidiary’s most recent balance sheet) of the Company or any such Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the Notes
or any Guarantee of a Guarantor) that are assumed by the transferee of any such
assets; and


 


-45-









 






(B) the fair market value of any securities or other assets received by the
Company or any such Restricted Subsidiary in exchange for any such assets that are
converted into cash within 180 days after such Asset Sale;




shall be deemed to be cash for purposes of this provision; and




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




(a) to repay (i) any Obligations under the Credit Agreement and effect a
permanent reduction in the availability under such Credit Agreement and (ii) in the
case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor,
Obligations of such Restricted Subsidiary;




(b) to invest or commit to invest in properties and assets that replace the
properties and assets that were the subject of such Asset Sale or in properties and
assets (including Capital Stock) that will be used in the business of the Company
and its Restricted Subsidiaries as existing on the Issue Date or in businesses
reasonably related thereto (“Replacement Assets”);




(c) to acquire or commit to acquire all or substantially all of the assets of,
or a majority of the voting Capital Stock of a Permitted Business; and/or




(d) a combination of prepayment and investment permitted by the foregoing
clauses (3)(a) through (3)(c);



provided that in the case of a commitment under clauses (b) and (c) above made prior to the
expiration of such 365-day period, such investment or acquisition shall be deemed to comply with
this covenant if consummated within six months after such commitment.



(b) When the Net Cash Proceeds from Asset Sales not applied or invested as provided in the
preceding paragraph total $25.0 million or more (each, a “Net Proceeds Offer Trigger
Date”), the Company will, within 30 days, make an offer to purchase (the “Net Proceeds
Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Debt, an
offer to purchase to all holders of such Pari Passu Debt, on a date (the “Net Proceeds Offer
Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds
Offer Trigger Date, from all Holders (and holders of any Pari Passu Debt) on a pro rata basis, that
amount of Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to
100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time
any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as
the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than as contemplated by clause 2(b) above and other than interest received with
respect to any such non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance
with this covenant.



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




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




(2) such Asset Sale is for fair market value;



provided that any cash or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph
shall constitute Net Cash Proceeds subject to the provisions of the foregoing Sections 4.10(a) and
(b).


 


-46-









 





(d) In the event of the transfer of substantially all (but not all) of the property and assets
of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction
permitted under Section 5.1, which transaction does not constitute a Change of Control, the
successor corporation shall be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the
provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In
addition, the fair market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this
covenant.



(e) Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of
Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part in a principal amount
of $2,000 and integral multiples of $1,000 in excess thereof in exchange for cash. To the extent
Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of
tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net
Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be
required by law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer,
the Company may use those Net Cash Proceeds for any purpose not otherwise prohibited by this
Indenture. Upon completion of each Net Proceeds Offer, the amount of Net Cash Proceeds will be
reset at zero.



(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations conflict with this Section 4.10 or
Section 3.10, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.10 or Section 3.10 by
virtue thereof.



Section 4.11. Limitations on Transactions with Affiliates.



(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates (each, an
“Affiliate Transaction”), other than (x) Affiliate Transactions permitted under paragraph
(c) of this Section and (y) Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction at such time on an
arm’s-length basis from a Person that is not an Affiliate of the Company or such Restricted
Subsidiary.



(b) All Affiliate Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property with a fair market
value in excess of $10.0 million shall be approved by the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution
stating that such Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an
Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that
involves an aggregate fair market value of more than $25.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable
opinion as to the fairness of such transaction or series of related transactions to the Company or
the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.



(c) The restrictions set forth in paragraphs (a) and (b) of this Section 4.11 shall not apply
to:




(1) reasonable fees and compensation (including the payment of reasonable and customary
benefits (including retirement, health, option, deferred compensation and other benefits
plans) to officers and employees of the Company) paid to, and indemnity provided on behalf
of, officers, directors, employees or consultants of the Company or any Restricted
Subsidiary of the Company as determined in good faith by the Company’s Board of Directors or
senior management;


 


-47-









 






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




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




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




(5) any sale, conveyance or other transfer of Receivables and other related assets
customarily transferred in a Qualified Securitization Transaction; and




(6) the issuance of Qualified Capital Stock of the Company otherwise permitted
hereunder.



Section 4.12. Limitation on Liens.



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




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




(2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may
be, are equally and ratably secured,



except for:




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




(b) Liens securing Indebtedness and other Obligations under Credit Facilities in an
aggregate amount not to exceed the amount permitted to be incurred pursuant to clause (2) of
the definition of “Permitted Indebtedness”;




(c) Liens securing the Notes and the Guarantees;




(d) Liens of the Company or a Wholly Owned Restricted Subsidiary of the Company on
assets of any Restricted Subsidiary of the Company;




(e) Liens securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this Indenture and which has
been incurred in accordance with the provisions of this Indenture; provided, however, that
such Liens: (i) are no less favorable to the Holders in any material respect and are not
more favorable to the lienholders in any material respect with respect to such Liens than
the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or
cover any property or assets of the Company or any of its Restricted Subsidiaries not
securing the Indebtedness so Refinanced;


 


-48-









 






(f) Liens securing Indebtedness (including Liens securing any Obligations in respect
thereof) consisting of Indebtedness incurred in compliance with Section 4.9, provided that
after giving effect to such
incurrence of Indebtedness (or on the date of the initial borrowing of such
Indebtedness after giving pro forma effect to the incurrence of the entire committed amount
of such Indebtedness), the Consolidated Secured Leverage Ratio shall not exceed 3.0 to 1.0;
and




(g) Permitted Liens.



Section 4.13. Continued Existence.



Subject to Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate or other existence and the corporate or
other existence of each Guarantor in accordance with the organizational documents (as the same may
be amended from time to time) of the Company or such Guarantor, except to the extent that the Board
of Directors of the Company determines in good faith that the preservation of such existence is no
longer necessary or desirable in the conduct of the business of the Company or such Guarantor,
taken as a whole, and that the loss thereof is not disadvantageous in any material respect to the
Holders.



Section 4.14. Insurance Matters.



The Company shall provide or cause to be provided for itself and each of its Subsidiaries
insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company, are adequate and appropriate for the conduct of the
business of the Company and its Subsidiaries in a prudent manner, with reputable insurers or with
the government of the United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in the reasonable, good
faith opinion of the Company, for corporations similarly situated in the industry, unless, in the
good faith judgment of the Board of Directors of the Company, the failure to provide such insurance
(together with all other such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries, taken as a whole.



Section 4.15. Offer to Repurchase upon Change of Control.



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



(b) The Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer.



(c) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To
the extent that the provisions of any securities laws or regulations conflict with this Section
4.15 or Section 3.9, the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.15 or Section 3.9 by
virtue thereof.


 


-49-









 





Section 4.16. Additional Subsidiary Guarantees.



If, after the Issue Date, (a) any Restricted Subsidiary (including any newly formed, newly
acquired or newly Redesignated Restricted Subsidiary) guarantees any Indebtedness of the Company or
(b) the Company otherwise elects to have any Restricted Subsidiary become a Guarantor, then, in
each such case, the Company shall cause such Restricted Subsidiary to:




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




(2) deliver to the Trustee an opinion of counsel that such supplemental indenture has
been duly authorized, executed and delivered by such Restricted Subsidiary and constitutes a
valid, binding and enforceable obligation of such Restricted Subsidiary in accordance with
its terms.



Section 4.17. Payments for Consent.



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



Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries.



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



Section 4.19. Conduct of Business.



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



Section 4.20. Suspension of Covenants.



(a) During any period of time that: (i) the Notes have Investment Grade Ratings from two
Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the
occurrence of the events described in the foregoing clauses (i) and (ii) being collectively
referred to as a “Covenant Suspension Event”), the Company and its Restricted Subsidiaries
shall not be subject to the provisions of Sections 3.10, 4.7, 4.8, 4.9, 4.10, 4.11 and 5.1(a)(2)
(collectively, the “Suspended Covenants”).



(b) Upon the occurrence of a Covenant Suspension Event, any Guarantees of the Subsidiary
Guarantors, if any, will also be suspended as of such date (the “Suspension Date”).



(c) In the event that the Company and the Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of the foregoing, and on any subsequent date
(the “Reversion Date”) one or both of the Rating Agencies withdraws their Investment Grade
Rating or downgrades the rating assigned to the Notes below an Investment Grade Rating, then the
Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants
with respect to future events and the Guarantees of the Subsidiary Guarantors will be reinstated if
such Guarantees are then required by the terms of this Indenture. The period of time between the
Suspension Date and the Reversion Date is referred to in this Indenture as the “Suspension
Period.”



(d) Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of
Default will be deemed to have occurred as a result of a failure to comply with the Suspended
Covenants during the Suspension Period (or upon termination of the Suspension Period or after that
time based solely on events that occurred during the Suspension Period).


 


-50-









 





(e) On the Reversion Date, all Indebtedness incurred during the Suspension Period will be
classified as having been incurred or issued pursuant to Section 4.9(a) (to the extent such
Indebtedness would be
permitted to be incurred or issued thereunder as of the Reversion Date and after giving effect
to Indebtedness incurred or issued prior to the Suspension Period and outstanding on the Reversion
Date). To the extent such Indebtedness would not be so permitted to be incurred or issued pursuant
to Sections 4.9(a), such Indebtedness will be deemed to have been outstanding on the Issue Date, so
that it is initially classified as permitted under clause (3) of the definition of “Permitted
Indebtedness”. Calculations made after the Reversion Date of the amount available to be made as
Restricted Payments under Section 4.7 will be made as though Section 4.7 had been in effect since
the Issue Date and throughout the Suspension Period. For the avoidance of doubt, Restricted
Payments made during the Suspension Period shall reduce the amount available to be made as
Restricted Payments under Section 4.7(b), but no Default or Event of Default shall be deemed to
have occurred on the Reversion Date as a result of any actions taken by the Company or its
Restricted Subsidiaries during the Suspension Period.



(f) The Company shall deliver promptly to the Trustee an Officers’ Certificate notifying the
Trustee of any Covenant Suspension Event or Reversion Date, as the case may be, pursuant to this
Section.



ARTICLE V.




SUCCESSORS




Section 5.1. Merger, Consolidation and Sale of Assets.



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




(1) either:




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




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




(x) shall be a corporation organized and validly existing under the
laws of the United States or any State thereof or the District of Columbia;
and




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




(2) immediately after giving effect to such transaction and the assumption contemplated
by clause (1)(b)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or in respect of such
transaction), either (x) the Company or such Surviving Entity, as the case may be, shall be
able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.9(a) or (y) the Consolidated Fixed Charge Coverage Ratio of the
Company would be no less than such ratio immediately prior to such transaction;


 


-51-









 






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




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



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



(b) Notwithstanding the foregoing clauses (1), (2) and (3) of Section 5.1(a), the Company may
merge with an Affiliate that is a Person that has no material assets or liabilities and which was
organized solely for the purpose of reorganizing the Company in another jurisdiction.



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




(1) the entity formed by or surviving any such consolidation or merger (if other than
the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been
made is a corporation or a partnership or a limited liability company, in each case,
organized and existing under the laws of the United States or any State thereof or the
District of Columbia;




(2) such entity (if other than the Guarantor) assumes by supplemental indenture all of
the obligations of the Guarantor under its Guarantee, this Indenture and the Registration
Rights Agreement;




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




(4) immediately after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma basis, the Company could satisfy the provisions of clause (2) of
Section 5.1(a).



Any merger or consolidation of a Guarantor with and into the Company (with the Company being
the surviving entity) or another Guarantor that is a Restricted Subsidiary of the Company need only
comply with clause (4) of Section 5.1(a).



Section 5.2. Successor Corporation Substituted.



Upon any consolidation, combination or merger or any transfer of all or substantially all of
the assets of the Company in accordance with Section 5.1 in which the Company is not the continuing
corporation, the successor Person formed by such consolidation or into which the Company is merged
or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture, the Notes and the
Registration Rights Agreement with the same effect as if such Surviving Entity had been named as
such. When a successor corporation assumes all of the obligations of the predecessor hereunder and
under the Notes and the Security Documents and agrees in writing to be bound hereby and thereby,
the predecessor shall be released from such obligations.


 


-52-









 





ARTICLE VI.




DEFAULTS AND REMEDIES




Section 6.1. Events of Default.




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




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




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




(c) a default in the observance or performance of any other covenant or agreement
contained in this Indenture which default continues for a period of 60 days after the
Company receives written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Notes (except in the case of a default with respect to Section 5.1, which will
constitute an Event of Default with such notice requirement but without such passage of time
requirement);




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




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




(f) the Company or any Significant Subsidiary of the Company:




(i) commences a voluntary case under any Bankruptcy Law,




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




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




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




(v) admits in writing its inability to pay its debts as they become due; or


 


-53-









 






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




(i) is for relief in an involuntary case against the Company or any Significant
Subsidiary of the Company;




(ii) appoints a custodian or receiver of the Company or any Significant
Subsidiary or for all or substantially all of the property of any of the foregoing;




(iii) orders the liquidation of the Company or any of its Significant
Subsidiaries;




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




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



Section 6.2. Acceleration.



If an Event of Default (other than an Event of Default specified in clause (f) or (g) of
Section 6.1 above with respect to the Company) shall occur and be continuing, the Trustee or the
Holders of at least 25% in principal amount of outstanding Notes may declare the principal of and
accrued interest on all the Notes to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a “notice of acceleration” (the
“Acceleration Notice”), and the same shall become immediately due and payable.



If an Event of Default specified in clause (f) or (g) of Section 6.1 above with respect to the
Company occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued
and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holder.



At any time after a declaration of acceleration with respect to the Notes as described in the
preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and
cancel such declaration and its consequences:




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




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




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




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




(5) in the event of the cure or waiver of an Event of Default of the type described in
clause (f) of Section 6.1, the Trustee shall have received an Officers’ Certificate and an
Opinion of Counsel that such Event of Default has been cured or waived.



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



Section 6.3. Other Remedies.



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


 


-54-









 





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, and any recovery or judgment shall, after provision for the
payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee, each Agent and
their respective agents and counsel, be for the ratable benefit of the Holders of the Notes. A
delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in
the Event of Default. All remedies are cumulative to the extent permitted by law.



Section 6.4. Waiver of Past Defaults.



The Holders of a majority in principal amount of the Notes may waive any existing or past
Default or Event of Default under this Indenture, and its consequences, except a default in the
payment of the principal of or interest on any Notes. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.



Section 6.5. Control by Majority.



Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture or that the Trustee reasonably
determines may be unduly prejudicial to the rights of other Holders of Notes or that may subject
the Trustee to personal liability and the Trustee shall be entitled to the benefit of
Sections 7.1(c)(iii) and 7.1(e).



Section 6.6. Limitation on Suits.




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




(a) the Holder of a Note gives to the Trustee at its Corporate Trust Office written
notice of a continuing Event of Default;




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




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




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




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



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



Section 6.7. Rights of Holders of Notes to Receive Payment.



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


 


-55-









 





Section 6.8. Collection Suit by Trustee.



If an Event of Default specified in Section 6.l(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium and Additional Interest, if any,
and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and Additional Interest, if any, and such further amounts as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expense,
disbursements and advances of the Trustee, each Agent and their respective agents and counsel.



Section 6.9. Trustee May File Proofs of Claim.



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



Section 6.10. Priorities.



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




First: to the Trustee, each Agent and their respective agents and attorneys for
amounts due under Section 7.7, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and such Agent and the costs and
expenses of collection;




Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
Purchase Price, Redemption Price and Additional Interest, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and payable on the
Notes for principal, Purchase Price, Redemption Price and Additional Interest, if any, and
interest, respectively; and




Third: to the Company, the Guarantors, if any, or to such party as a court of
competent jurisdiction shall direct.



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


 


-56-









 





Section 6.11. Undertaking for Costs.



In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess 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 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.



ARTICLE VII.




TRUSTEE




Section 7.1. Duties of Trustee.



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




(b) Except during the continuance of an Event of Default:




(i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the TIA and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture or the TIA against the Trustee; and




(ii) in the absence of bad faith on its part, the Trustee may conclusively rely,
without investigation, as to the truth or the statements and the correctness of the opinions
expressed therein, upon and statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture. However, the Trustee shall examine
the certificates and opinions to determine whether or not they conform on their face to the
requirements of this Indenture but not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein or otherwise verify the contents thereof.



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




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




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




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



(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.1.



(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holder, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5, unless such Holder shall have offered to the
Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense
which might be incurred by it in compliance with such request or direction.


 


-57-









 





(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



Section 7.2. Rights of Trustee.



(a) The Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in the document.



(b) Before the Trustee acts or refrain from acting, it may require an Officers’ Certificate or
an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel and Opinions of Counsel shall be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



(c) The Trustee may act through its attorneys, accountants, experts and such other
professionals as the Trustee deems necessary, advisable or appropriate and shall not be responsible
for the misconduct or negligence of any attorney, accountant, expert or other such professional
appointed with due care.



(d) 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 the rights or powers conferred upon it by this
Indenture.



(e) Unless otherwise specifically provided herein, any demand, request, direction or notice
from the Company shall be sufficiently evidenced by a written order signed by two Officers of the
Company.



(f) The Trustee shall not be charged with knowledge of any Default or Event of Default under
Section 6.1 (other than under Section 6.1(a) (subject to the following sentence) or Section 6.1(b))
unless either (i) a Responsible Officer shall have actual knowledge thereof, or (ii) the Trustee
shall have received notice thereof in accordance with Section 12.2 from the Company or any Holder
of the Notes. The Trustee shall not be charged with knowledge of the Company’s obligation to pay
Additional Interest, or the cessation of such obligation, unless the Trustee receives written
notice thereof from the Company or any Holder.




(g) The Trustee shall have no duty to cause the maintenance of any insurance.



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



(i) Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by
a company request or company order and any resolution of the board of directors may be sufficiently
evidenced by a board resolution.



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



Section 7.3. 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 any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest within the meaning of the TIA it must eliminate such conflict within 90 days, apply
(subject to the consent of the Company) to the Commission for permission to continue as trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee shall also be subject
to Sections 7.10 and 7.11.


 


-58-









 





Section 7.4. Trustee’s Disclaimer.



The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



Section 7.5. Notice of Defaults.



If a Default or Event of Default occurs and is continuing and is known to a Responsible
Officer of the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event
of Default within 90 days after the later of (i) the date such Default or Event of Default occurs
and (ii) the date a Responsible Officer of the Trustee acquires knowledge thereof. Except in the
case of a Default in payment on any Note (including the failure to make a mandatory repurchase
pursuant hereto), the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in the interests of
the Holders of the Notes.



Section 7.6. Reports by Trustee to Holders of the Notes.



Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA § 313(b). The Trustee
shall also transmit by mail all reports as required by TIA § 313(c).



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



Section 7.7. Compensation, Reimbursement and Indemnity.



The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and the rendering by it of the services required hereunder. The
Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by or on behalf of it in addition to the
compensation for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s attorneys, accountants, experts and such other
professionals as the Trustee deems necessary, advisable or appropriate.



The Company shall indemnify the Trustee and its officers, directors, employees and agents
against any and all losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture (including its duties
under Section 9.6), including the costs and expenses of enforcing this Indenture or any Guarantee
against the Company or a Guarantor (including this Section 7.7) and defending itself against or
investigating any claim (whether asserted by the Company, any Guarantor, any Holder or any other
Person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be attributable to its
negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend any claim or threatened claim
asserted against the Trustee, and the Trustee shall cooperate in the defense. 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.


 


-59-









 





The obligations of the Company under this Section 7.7 shall survive the resignation or removal
of the Trustee, the satisfaction and discharge of this Indenture and the termination of this
Indenture.



To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal, Redemption Price or Purchase Price of or Additional Interest, if any, or
interest on, particular Notes. Such Lien shall survive the resignation or removal of the Trustee,
the satisfaction and discharge of this Indenture and the termination of this Indenture.



When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(f) or (g) occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.



Section 7.8. 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
7.8.



The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of Notes of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:




(a) the Trustee fails to comply with Section 7.10;




(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;




(c) a custodian, receiver or public officer takes charge of the Trustee or its property
for the purpose of rehabilitation, conversion or liquidation; or




(d) 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 date on
which the successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.



If a successor Trustee does not take office within 30 days after the retiring trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.



If the Trustee, after written request by any Holder of a Note who has been a bona fide holder
of a Note or Notes for at least six months, fails to comply with Section 7.10, such Holder of a
Note may petition any court of competent jurisdiction for the removal of the Trustee and 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. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The Company shall mail a notice of its succession to Holders of the
Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company’s obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.


 


-60-









 





Section 7.9. Successor Trustee by Merger, Etc.



If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation that is eligible under Section 7.10, the
successor corporation without any further act shall be the successor Trustee.



Section 7.10. Eligibility; Disqualification.



There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof (including the
District of Columbia) that is authorized under such laws to exercise corporate trust power, that is
subject to supervision or examination by federal or state authorities and that has a combined
capital and surplus of at least $50 million as set forth in its most recent published annual report
of condition.



This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).



Section 7.11. Preferential Collection of Claims Against Company.



The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated therein.



Section 7.12. Paying Agent, Registrar and Transfer Agent.



The rights, privileges, protections, immunities and benefits given to the Trustee in this
Article VII, including without limitation, its right to be compensated, reimbursed for expenses and
indemnified, are extended to, and shall be enforceable by, the Paying Agent, Registrar and Transfer
Agent as if the Paying Agent, Registrar and Transfer Agent were named as the Trustee herein.



Section 7.13. Force Majeure.



None of the Trustee, Paying Agent, Registrar and Transfer Agent shall incur any liability for
not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of
any occurrence beyond the control of the Trustee, Paying Agent, Registrar and Transfer Agent
(including but not limited to any act or provision of any present or future law or regulation or
governmental authority, act of God or war, civil unrest, local or national disturbance or disaster,
any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other
wire or communication facility).



ARTICLE VIII.




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.



The Company may, at its option evidenced by a resolution of its Board of Directors set forth
in an Officers’ Certificate, at any time, elect to have its obligations and the obligations of any
Guarantors discharged with respect to the then outstanding Notes in accordance with either
Section 8.2 or 8.3 as provided in this Article VIII.


 


-61-









 





Section 8.2. Legal Defeasance and Discharge.



Upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.2,
the Company and any Guarantor shall, subject to the satisfaction of the conditions set forth in
Section 8.4, be deemed to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors, if
any, shall be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and any Guarantees thereon, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.5 and the other Sections of this Indenture
referred to in clauses (a) through (d) below, and to have satisfied all their other obligations
under such Notes, this Indenture and the Security Documents (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or discharged hereunder:




(a) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, and interest on the Notes when such payments are due;




(b) the Company’s obligations with respect to the Notes concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of an office or agency for payments;




(c) the rights, powers, trust, duties and immunities of the Trustee and the Company’s
obligations in connection therewith; and




(d) the Legal Defeasance provisions of this Article VIII.



Subject to compliance with this Article VIII, the Company may exercise its option under this
Section 8.2, notwithstanding the prior exercise of its option under Section 8.3.



Section 8.3. Covenant Defeasance.



Upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.3,
the Company shall, subject to the satisfaction of the conditions set forth in Section 8.4, be
released from its obligations under the covenants contained in Sections 3.9, 3.10, 3.11, 4.3, 4.4,
4.5, 4.7 through 4.12 and 4.14 through 4.19, both inclusive, and Section 5.1(b), Article XI and
Article XII with respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document, and such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1, but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.1 of the
option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in
Section 8.4, Sections 6.1(c) through 6.1(j) shall not constitute Events of Default.



Section 8.4. Conditions to Legal or Covenant Defeasance.



The following are the conditions precedent to the application of either Section 8.2 or 8.3 to
the outstanding Notes as specified:




In order to exercise either Legal Defeasance or Covenant Defeasance:




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


 


-62-









 






(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming
that:




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




(b) since the date of this Indenture, there has been a change in the applicable
federal income tax law,




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




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




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




(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under this Indenture (other than a Default or an Event
of Default resulting from the borrowing of funds to be applied to such deposit and the grant
of any Lien securing such borrowings) or any other material agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;




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




(7) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with; and




(8) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that assuming no intervening bankruptcy of the Company between the date of deposit and the
91st day following the date of deposit and that no Holder is an insider of the Company,
after the 91st day following the date of deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally.



Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with
respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the
Trustee for cancellation (1) have become due and payable or (2) will become due and payable on the
maturity date within one year, or are to be called for redemption within one year, under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company.


 


-63-









 





Section 8.5. Deposited Money and U.S. Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.



Subject to Section 8.6, all money and U.S. Government Securities (including the proceeds
thereof) deposited with the Paying Agent (or other qualifying trustee, collectively for purposes of
this Section 8.5 only) pursuant to Section 8.4 in respect of the outstanding Notes shall be held in
trust and applied by the Paying Agent, in
accordance with the provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of principal, Redemption
Price or Purchase Price of, and Additional Interest, if any, or interest on, the Notes, that such
money need not be segregated from other funds except to the extent required by law.



The Company shall pay and indemnify the Trustee and the Paying Agent against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government Securities deposited
pursuant to Section 8.4 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Notes.



Anything in this Article VIII to the contrary notwithstanding, the Paying Agent shall deliver
or pay to the Company from time to time upon the request of the Company any money or U.S.
Government Securities held by it as provided in Section 8.4 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee and the Paying Agent (which may be the opinion delivered under
Section 8.4), are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.



Section 8.6. Repayment to Company.



Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal, Redemption Price or Purchase Price of, or Additional
Interest, if any, or interest on any Note and remaining unclaimed for two years after such amount
has become due and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look
only to the Company for payment thereof as a general creditor, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, at the expense of the Company, if required by applicable
law cause to be published once, in The New York Times and The Wall Street Journal (national
editions), notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days after the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.



Section 8.7. Reinstatement.



If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government
Securities in accordance with Section 8.2 or 8.3, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 until such
time as the Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.2 or 8.3, as the case may be; provided, however, that, if the Company makes any payment
with respect to any Note following 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 held
by the Trustee or Paying Agent.



ARTICLE IX.




AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.1. Without Consent of Holders of Notes.



Notwithstanding Section 9.2 of this Indenture, the Company, the Guarantors, if any, and the
Trustee, the Paying Agent, Registrar and Transfer Agent may amend or supplement this Indenture, the
Notes or any Security Document without the consent of any Holder of a Note:




(a) to cure any ambiguity, omission, defect or inconsistency so long as such changes do
not adversely affect the rights of any of the Holders in any material respect.


 


-64-









 






(b) to provide for the assumption of the Company’s obligations to the Holders of the
Notes in the case of a merger or consolidation or sale of all or substantially all of the
Company’s assets pursuant to Article V;




(c) to comply with the requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the TIA; or




(d) to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the rights hereunder of any Holder of
the Notes in any material respect.



Upon the written request of the Company, accompanied by a Board Resolution (evidenced by an
Officers’ Certificate) authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.2 (with copies to the Agents),
the Trustee, the Paying Agent, Registrar and Transfer Agent shall join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee, the Paying Agent, Registrar and Transfer Agent shall not be obligated
to enter into such amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.



Section 9.2. With Consent of Holders of Notes.



Except as provided below in this Section 9.2, the Company, the Trustee, the Paying Agent,
Registrar or Transfer Agent and the Guarantors, if any, may amend or supplement this Indenture or
the Notes with the consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents obtained in connection with a tender
offer or exchange offer for the Notes), and, subject to Sections 6.2, 6.4 and 6.7, any existing
Default or Event of Default or compliance with any provision of this Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange offer for the
Notes).



Without the consent of each Holder affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):




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




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




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




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




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




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




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


 


-65-









 





Upon the written request of the Company accompanied by a resolution of the Board (evidenced by
an Officers’ Certificate) authorizing the execution of any such amended or supplemental indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2 (with copies to the Agents), the Trustee, the Paying Agent, Registrar and Transfer
Agent shall join with the Company in the execution of such amended or supplemental indenture unless
such amended or supplemental indenture affects the Trustee’s, the Paying Agent’s, Registrar’s or
Transfer Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee, the Paying Agent, Registrar and Transfer Agent may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.



It shall not be necessary for the consent of the Holders of Notes under this Section 9.2 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.



After an amendment, supplement or waiver under this Article IX becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. 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 amended or supplemental
indenture or waiver.



Section 9.3. Compliance with Trust Indenture Act.



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



Section 9.4. Revocation and Effect of Consents.



Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and therefore binds every Holder.



Section 9.5. Notation on or Exchange of Notes.



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



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



Section 9.6. Trustee to Sign Amendment, Etc.



The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board approves such amended or supplemental indenture. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive, in addition to the documents
required by Section 12.4, and, subject to Section 7.1, shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel stating that (i) the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture, (ii) no Event of Default shall
occur as a result of
the execution of such Officers’ Certificate or the delivery of such Opinion of Counsel and
(iii) the amended or supplemental indenture complies with the terms of this Indenture.


 


-66-









 





ARTICLE X.




GUARANTEE




Section 10.1. Unconditional Guarantee.



Each Guarantor hereby unconditionally guarantees, on a senior basis and jointly and severally,
to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Notes or the obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration, upon redemption, purchase
pursuant to Article III or otherwise, and interest on the overdue principal, if any, and interest
on any interest, to the extent lawful, of the Notes and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment
or renewal of any Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at Stated Maturity, by acceleration, upon redemption, purchase
pursuant to Article III or otherwise, subject, however, in the case of clauses (i) and (ii) above,
to the limitations set forth in Section 10.3. Each Guarantor, if any, upon the execution and
delivery of a Guarantee pursuant to Section 4.16, hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or
this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof (other than a waiver of all or part
of the provisions of this Article X), the recovery of any judgment against the Company, and action
to enforce the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands whatsoever and
covenants that this Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and in this Guarantee. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor, if any, upon the execution and delivery of a Guarantee pursuant to Section 4.16,
further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article VI for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any acceleration of such obligations as provided in Article VI, such
obligations (whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.



Section 10.2. Severability.



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



Section 10.3. Limitation of Guarantor’s Liability.



(a) Each Guarantor, if any, upon the execution and delivery of a Guarantee pursuant to Section
4.16, and by its acceptance hereof each Holder hereby confirms that it is the intention of all such
parties that the guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any Bankruptcy Law, 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 such Guarantor hereby irrevocably agree that the obligations
of such Guarantor under the Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to
Section 10.5, result in the obligations of such Guarantor under the Guarantee not constituting such
fraudulent transfer or conveyance.


 


-67-









 





(b) The Guarantees of the Subsidiary Guarantors shall be suspended during any Suspension
Period, as provided in Section 4.20(b) hereof.



Section 10.4. Release of Guarantor.



(a) Any Guarantee by a Restricted Subsidiary pursuant to Section 4.16 shall be automatically
and unconditionally released and discharged, without any further action required on the part of the
Trustee or any Holder of the Notes, upon:




(1) the unconditional release of such Restricted Subsidiary from its liability in
respect of the Indebtedness in connection with which such Guarantee was executed and
delivered pursuant to Section 4.16;




(2) the legal defeasance of the Notes as described under Sections 8.2 and 8.3;




(3) (A) the merger of any Guarantor into the Company, (B) the dissolution of any
Guarantor into the Company or (C) the transfer of all or substantially all of the assets of
any Guarantor to the Company; or




(4) the sale or other disposition of all or substantially all of the assets of, or the
sale of all of the capital stock of, or other disposition (by merger or otherwise) to any
Person which is not a Restricted Subsidiary of the Company of all of the Company’s Capital
Stock in, or all or substantially all of the assets of, such Restricted Subsidiary; provided
that (A) such sale or disposition of such Capital Stock or assets is otherwise in compliance
with the terms of this Indenture and (B) such assumption, guarantee or other liability of
such Restricted Subsidiary has been released by the holders of the other Indebtedness so
guaranteed.



(b) The Trustee shall deliver an appropriate instrument evidencing such release upon receipt
of a request by the Company accompanied by an Officers’ Certificate and Opinion of Counsel
certifying as to the compliance with this Section 10.4. Any Guarantor not so released shall remain
liable for the full amount of principal of and interest on the Notes as provided in this Article X.



(c) All Guarantees shall be of no further force and effect upon the occurrence of a Legal
Defeasance or a Covenant Defeasance pursuant to Section 8.2 or 8.3, subject to reinstatement
pursuant to Section 8.7 under the circumstances described therein.



Section 10.5. Contribution.



In order to provide for just and equitable contribution among the Guarantors, the Guarantors
agree, inter se, that in the event any payment or distribution is made by any Guarantor (a
“Funding Guarantor”) under the Guarantee, such Funding Guarantor shall be entitled to a
contribution from all other Guarantors in a pro rata amount based on the Adjusted Net Assets (as
defined below) of each 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 Guarantor’s obligations with respect to the Guarantee. “Adjusted Net
Assets” of such Guarantor at any date shall mean the lesser of the amount by which (x) the fair
value of the property of such 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 Guarantee, of
such Guarantor at such date and (y) the present fair salable value of the assets of such Guarantor
at such date exceeds the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred
or assumed on such date), excluding debt in respect of the Guarantee of such Guarantor, as they
become absolute and matured.


 


-68-









 





Section 10.6. Waiver of Subrogation.



Until all Obligations under the Notes and this Indenture are paid in full, each Guarantor, if
any, upon the execution and delivery of a Guarantee pursuant to Section 4.16, hereby irrevocably
waives any claims or other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under
the Guarantee and this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of
any Holder against the Company, 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, directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any amount shall be paid
to any Guarantor in violation of the preceding sentence and the Notes shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Holders, and shall, forthwith be paid to the Trustee for
the benefit of such Holders to be credited and applied upon the Notes, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor, if any, upon the
execution and delivery of a Guarantee pursuant to Section 4.16, acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by this Indenture and
that the waiver set forth in this Section 10.6 is knowingly made in contemplation of such benefits.



Section 10.7. Execution of Guarantee.



To evidence its guarantee to the Holders set forth in this Article X, each Guarantor hereby
agrees to execute the Guarantee in substantially the form attached hereto as Exhibit C,
which shall be endorsed on each Note ordered to be authenticated and delivered by the Trustee.
Each Guarantor, upon the execution and delivery of a Guarantee pursuant to Section 4.16, hereby
agrees that its Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee. Each such Guarantee shall be signed on behalf
of each Guarantor by an Officer of the Guarantor. Such signatures upon the Guarantee may be by
manual or facsimile signature of such officer and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the Guarantee shall cease to be such
officer before the Note on which such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Note nevertheless may be authenticated
and delivered or disposed of as though the Person who signed the Guarantee had not ceased to be
such officer of the Guarantor.



Section 10.8. Waiver of Stay, Extension or Usury Laws.



Each Guarantor, upon the execution and delivery of a Guarantee pursuant to Section 4.16,
hereby covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each such Guarantor 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.


 


-69-









 





ARTICLE XI.




SATISFACTION AND DISCHARGE




Section 11.1. Satisfaction and Discharge.



This Indenture will be discharged and will cease to be of further effect (except as set forth
below) as to all outstanding Notes and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture when:




(1) either:




(a) all the Notes theretofore authenticated and delivered (except lost, stolen
or destroyed Notes which have been replaced or paid and Notes for whose payment
money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee or the Registrar (if to the Registrar the Registrar
shall provide written confirmation to the Trustee) for cancellation; or




(b) all Notes not theretofore delivered to the Trustee or the Registrar (if to
the Registrar the Registrar shall provide written confirmation to the Trustee) for
cancellation (1) have become due and payable or (2) will become due and payable
within one year, or may be called for redemption within one year, under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the Company has irrevocably
deposited or caused to be deposited with the Trustee or Paying Agent as the case may
be (if with the Paying Agent, the Company shall provide the Trustee with an
Officers’ Certificate to evidence such deposit) funds in an amount sufficient to pay
and discharge the entire Indebtedness on the Notes not theretofore delivered to the
Trustee or the Registrar for cancellation, for principal of, premium, if any, and
interest on the Notes to the date of deposit, together with irrevocable instructions
from the Company directing the Paying Agent to apply such funds to the payment
thereof at maturity or redemption, as the case may be;




(2) the Company has paid all other sums payable under this Indenture by the Company;
and




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



Notwithstanding the satisfaction and discharge of this Indenture, the Company’s obligations in
Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 12.2 and 12.4, and the Trustee’s and Paying Agent’s
obligations in Section 11.2 shall survive until the Notes are no longer outstanding. Thereafter,
only the Company’s obligations in Section 7.7 shall survive.



Section 11.2. Application of Trust.



All money deposited with the Paying Agent pursuant to Section 11.1 shall be held in trust and,
at the written direction of the Company, be invested prior to maturity in U.S. Government
Securities, and applied by the Paying Agent in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for
the payment of which money has been deposited with the Paying Agent; but such money need not be
segregated from other funds except to the extent required by law.



ARTICLE XII.




MISCELLANEOUS




Section 12.1. Trust Indenture Act Controls.



If any provision hereof limits, qualifies or conflicts with a provision of the TIA or another
provision that would be required or deemed under such Act to be part of and govern this Indenture
if this Indenture were subject thereto, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded,
as the case may be.


 


-70-









 





Section 12.2. Notices.



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




If to the Company:




Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, Arizona 85283

Attention: Christopher J. Miner, General Counsel

Fax: (480) 281-3443




With a copy to:




DLA Piper LLP

2525 East Camelback Road, Suite 1000

Phoenix, Arizona 85016-4232

Attention: Gregory R. Hall, Esq.

Fax: (480) 606-5528




If to the Trustee:




Law Debenture Trust Company of New York

400 Madison Avenue, 4th Floor

New York, New York 10017

Attention: Corporate Trust Department

Fax: (212) 750-1361




If to the Paying Agent, Registrar or Transfer Agent:




Deutsche Bank Trust Company Americas

Trust and Securities Services

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, New York 10005

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




With a copy to:




Deutsche Bank National Trust Company

Trust & Securities Services

100 Plaza One

6th Floor — MS JCY03-0699

Jersey City, NJ 07311-3901

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.



The Company, the Trustee, the Paying Agent, Registrar or Transfer Agent, by notice to the
others, may designate additional or different addresses for subsequent notices or communications.


 


-71-









 





All notices and communications shall be in writing and (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if mailed, or in the case of
any offer to purchase Notes under Section 3.8, 3.9 or 3.10 upon the date the communication is
postmarked; when receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day delivery, except
that notices to the Trustee, the Paying Agent, Registrar or Transfer Agent shall be effective only
upon receipt.



Any notice or communication to a Holder shall be in writing and shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA § 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.



If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the address receives it.



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



Section 12.3. Communication by Holders of Notes with Other Holders of Notes.



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



Section 12.4. Certificate and Opinion as to Conditions Precedent.



Upon any request or application by the Company and/or any Guarantor to the Trustee to take any
action under this Indenture, the Company and/or any Guarantor shall furnish to the Trustee:




(a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.5) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and




(b) if requested by the Trustee, an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in Section 12.5)
stating that, in the opinion of such counsel, all such conditions precedent and covenants
have been satisfied.



Section 12.5. Statements Required in Certificate or Opinion.



Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:




(a) a statement that the Person making such certificate or opinion has read such
covenant or condition;




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




(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and



(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.




 


-72-









 






Section 12.6. Rules by Trustee and Agents.



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




	Section 12.7. No Personal Liability of Directors, Officers, Employees and
Stockholders.
	 





No past, present or future director, officer, employee, incorporator, agent or stockholder or
Affiliate of the Company, as such, shall have any liability for any obligations of the Company
under the Notes or this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. No past, present or future director, officer, employee,
incorporator, agent or stockholder or Affiliate of any of the Guarantors, if any, as such, shall
have any liability for any obligations of the Guarantors under the Guarantees or this Indenture or
for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes and Guarantees by accepting a Note and a Guarantee waives and releases all such
liabilities. The waiver and release are part of the consideration for issuance of the Notes and
the Guarantees. Such waiver may not be effective to waive liabilities under the federal securities
law and it is the view of the Commission that such a waiver is against public policy.



Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.



THE VALIDITY AND INTERPRETATION OF THIS INDENTURE, THE GUARANTEES, IF ANY, AND THE NOTES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES, IF
ANY, AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS IN RESPECT OF SUCH SUIT OR ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES AND THE GUARANTEES. EACH OF THE
TRUSTEE, THE COMPANY AND ANY GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. Nothing herein shall affect the right of the Trustee or any
Holder of the Notes to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company or any Guarantor in any other jurisdiction.



Section 12.9. No Adverse Interpretation of Other Agreements.



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



Section 12.10. Successors.



All agreements of the Company and any Guarantor in this Indenture and the Notes and Guarantees
shall bind their successors. All agreements of the Trustee in this Indenture shall bind its
successors.


 


-73-









 





Section 12.11. Severability.



In case any provision in this Indenture or in the Notes or any Guarantees shall be held to 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 12.12. Counterpart Originals.



This Indenture may be executed in two or more counterparts, which when so executed shall
constitute one and the same agreement. The exchange of copies of this Indenture and of signature
pages by facsimile or PDF transmission shall constitute effective execution and delivery of this
Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be
their original signatures for all purposes.



Section 12.13. Table of Contents, Headings, Etc.



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



Section 12.14. Qualification of Indenture.



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



Section 12.15. USA PATRIOT Act.



The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act the
Trustee and the Agents, like all financial institutions, are required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an
account with Law Debenture Trust Company of New York or Deutsche Bank Trust Company Americas. The
parties to this Indenture agree that they will provide the Trustee and the Agents with such
information as they may request in order for the Trustee and the Agents to satisfy the requirements
of the USA PATRIOT Act.



[Signatures on following page]



 


-74-









 





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



	 	 	 	 	 
	 	MOBILE MINI, INC.,

as Issuer

 	 
	 	By:  	/s/
Mark E. Funk	 
	 	 	Name:  	Mark E. Funk 	 
	 	 	Title:  	Executive Vice President and


Chief Financial Officer 	 
	 
	 	Guarantors:




MOBILE MINI DEALER, INC.

MOBILE MINI, LLC (CA)

MOBILE MINI, LLC (DE)

MOBILE MINI I, INC.

A ROYAL WOLF PORTABLE STORAGE, INC.

TEMPORARY MOBILE STORAGE, INC.

MOBILE STORAGE GROUP (TEXAS), L.P.

MOBILE STORAGE GROUP, INC.

A BETTER MOBILE STORAGE COMPANY

MSG INVESTMENTS, INC.

 	 
	 	By:  	/s/
Mark E. Funk	 
	 	 	Name:  	Mark E. Funk 	 
	 	 	Title:  	Executive Vice President and

Chief Financial Officer 	 



 


S-1









 





	 	 	 	 	 
	 	LAW DEBENTURE TRUST COMPANY OF NEW YORK, 

as Trustee

 	 
	 	By:  	/s/
Anthony A. Bocchino	 
	 	 	Name:  	Anthony A. Bocchino 	 
	 	 	Title:  	Managing Director 	 



 


S-2









 






	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Paying Agent, Registrar and Transfer Agent

 	 
	 	By:  	/s/
Annie Jaghatspanyan	 
	 	 	Name:  	Annie Jaghatspanyan 	 
	 	 	Title:  	Vice President 	 
	 
	 	By:  	/s/
Wanda Camacho	 
	 	 	Name:  	Wanda Camacho 	 
	 	 	Title:  	Vice President 	 




 


S-3











 




EXHIBIT A




FORM OF SERIES A NOTE




(Face of Note)




MOBILE MINI, INC.




77/8% SENIOR NOTE DUE 2020




THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]1



THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) (AN “ACCREDITED
INVESTOR”), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO MOBILE MINI, INC. OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE AND
REGISTRAR A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER


 





	 	 	 
	1	 	To be included only if the Note is issued in global
form.



 


A-1









 





THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
MOBILE MINI, INC. IF MOBILE MINI, INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE, THE REGISTRAR AND MOBILE MINI, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S.
PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.


 


A-2









 





MOBILE MINI, INC.




77/8% SENIOR NOTE DUE 2020




	 	 	 	 	 	 	 	 	 
	 	 	 	CUSIP No.	 	 
	No.

	 	 	$	 	 	 	 	 
	 

	 	 	 	 

	 	 






Interest Payment Dates: June 1 and December 1, commencing June 1, 2011

Record Dates: May 15 and November 15



MOBILE MINI, INC., a Delaware corporation (the “Company,” which term includes any
successor corporation under the indenture hereinafter referred to), for value received, promises to
pay to CEDE & CO., or registered assigns, the principal sum of $[        ] on December 1, 2020.



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 set forth at this
place.



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


 


A-3









 






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



	 	 	 	 	 
	 	Dated:



MOBILE MINI, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




Dated:



This is one of the Notes referred to

in the within-mentioned Indenture:



LAW DEBENTURE TRUST COMPANY

OF NEW YORK, as Trustee



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Authorized Signatory	 	 






 


A-4









 





(Back of Note)




77/8% Senior Notes due 2015




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



1. Interest. The Company promises to pay interest on the principal amount of this
Note at the rate of 7.875% per annum from the date of original issuance until maturity and shall
pay the Additional Interest pursuant to the registration rights agreement referred below. The
Company shall pay interest and Additional Interest semi-annually on June 1 and December 1 of each
year, commencing June 1, 2011, or if any such day is not a Business Day, on the next succeeding
Business Day (each an “Interest Payment Date”). Interest on this Note will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be June 1, 2011. The Company shall
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue payments of the principal, Purchase Price and Redemption Price of this Note from time to
time on demand at a rate that is 2% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (without regard to any applicable grace
periods), hereon from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.



2. Method of Payment. The Company shall pay interest on the Notes (except defaulted
interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at
the close of business on the May 15 and November 15 next preceding the Interest Payment Date, even
if such Notes are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Any such
installment of interest or Additional Interest, if any, not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Interest Payment Date, and
may be paid to the registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders not less than 10 days prior to such special interest payment date,
or may be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be payable as to
principal, Redemption Price, Purchase Price, interest and Additional Interest, if any, at the
office or agency of the Company maintained for such purpose within or without the City and State of
New York, or, at the option of the Company, payment of interest and Additional Interest may be made
by check mailed to the Holders at their addresses set forth in the register of Holders, provided
that payment by wire transfer of immediately available funds will be required with respect to
principal, Redemption Price and Purchase Price of, and interest and Additional Interest (if any)
on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts.



3. Paying Agent, Registrar and Paying Agent. Initially, Deutsche Bank Trust Company
Americas will act as Paying Agent, Registrar and Transfer Agent. The Company may change any Paying
Agent, Registrar or Transfer Agent without notice to any Holder. The Company may act in any such
capacity.



4. Indenture. The Company issued $200.0 million in aggregate principal amount of the
Notes under an Indenture dated as of November 23, 2010 (the “Indenture”) between the
Company, the Guarantors party thereto from time to time, the Trustee, the Paying Agent, Registrar
and Transfer Agent. Additional Notes may be issued from time to time, subject to limitations set
forth in the Indenture. 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 of 1939, as amended (15 U.S.C.
Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The Notes are general obligations of the
Company. The Company may issue Additional Notes under the Indenture.


 


A-5









 





5. Optional Redemption. The Company may redeem the Notes at any time at its option,
in whole or in part, upon not less than 45 days notice to the Trustee and Paying Agent and not less
than 30 nor more than 60 days’ notice to the holders of the Notes. To redeem the Notes prior to
December 1, 2015, the Company must pay a redemption price equal to the greater of:




(a) 100% of the principal amount of the Notes to be redeemed; and




(b) the sum of the present values of (1) the redemption price of the Notes at December
1, 2015 (as set forth below) and (2) the remaining scheduled payments of interest from the
Redemption Date to December 1, 2015, but excluding accrued and unpaid interest, if any, to
the Redemption Date, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months), at the Treasury Rate (determined on the
second business day immediately preceding the Redemption Date) plus 50 basis points,



plus, in either case, 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).



Beginning on December 1, 2015, the Company may redeem the Notes at its option, in whole or in
part, at the following Redemption Prices (expressed as percentages of the principal amount thereof)
if redeemed during the twelve-month period commencing on December 1 of the year set forth below:



	 	 	 	 	 
	Year	 	Percentage	 
	 
	 	 	 	 
	2015
	 	 	103.938	%
	2016
	 	 	102.625	%
	2017
	 	 	101.313	%
	2018 and thereafter
	 	 	100.000	%







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



6. Optional Redemption upon Equity Offerings. At any time, or from time to time, on
or prior to December 1, 2013, the Company may, at its option, use the net cash proceeds of one or
more public or private offering of Qualified Capital Stock (as defined in the Indenture) of the
Company to redeem up to 35% of the principal amount of the Notes issued under the Indenture at a
redemption price of 107.875% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided that at least 65% of the principal amount of
Notes issued under the Indenture remains outstanding immediately after any such redemption and the
Company makes such redemption not more than 90 days after the consummation of any such Equity
Offering.



7. Mandatory Redemption. Except as set forth in Paragraph 9 below with respect to
repurchases of Notes in certain events, the Company shall not be required to make mandatory
redemption or repurchase payments with respect to the Notes.



8. Selection and Notice of Redemption. Subject to the provisions of the Indenture, a
notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $2,000 (or integral multiples of $1,000 in excess thereof) may be
redeemed in part, unless all of the Notes held by a Holder are to be redeemed. On and after the
Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.



If less than all of the Notes are to be redeemed, the Trustee shall select the Notes or
portions thereof to be redeemed (a) in compliance with the requirements of the national securities
exchange, if any, on which the Notes are listed; or (b) if the Notes are not listed on any national
securities exchange, on a pro rata basis, by lot or by such method as the Trustee shall deem fair
and appropriate.


 


A-6









 






9. Repurchase at Option of Holder.



(a) Change of Control Offer. Upon the occurrence of a Change of Control (unless the
Company has exercised its right to redeem the Notes as described in paragraph 5 above and in the
Indenture), the Company shall be required to make an offer (a “Change of Control Offer”) to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
each Holder’s Notes at a Purchase Price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of
repurchase, in accordance with the procedures set forth in the Indenture. Within 30 days following
any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.



(b) Net Proceeds Offer. If on the 366th day after an Asset Sale the Company has not
applied or invested the Net Cash Proceeds or non-cash consideration received by the Company or any
Restricted Subsidiary, as the case may be, in connection with any Asset Sale that is converted into
or sold or otherwise disposed of for cash (as described in Section 4.10 of the Indenture) relating
to such Asset Sale as set forth in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10 of
the Indenture (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net
Cash Proceeds which has not been applied or invested on or before such Net Proceeds Offer Trigger
Date as permitted in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10 of the Indenture
(each, a “Net Proceeds Offer Amount”) shall be applied by the Company to make an offer to
purchase (the “Net Proceeds Offer”) pursuant to Sections 3.10 and 4.10 of the Indenture to
all Holders and, to the extent required by the terms of any other debt that is pari passu with the
Notes (“Pari Passu Debt”), to all holders of such Pari Passu Debt on a date (the “Net
Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders (and holders of any Pari Passu Debt) pro rata,
the maximum amount of Notes and such other Pari Passu Debt equal to the Net Proceeds Offer Amount
with respect to the Notes at a price equal to 100% of the principal amount of the Notes (and Pari
Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the Purchase
Date.



Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of
Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part equal to $2,000 or in
integral multiples of $1,000 in excess thereof in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes will
be purchased pro rata based on the aggregate amounts of Notes and Pari Passu Debt of the Company
properly tendered (and the Trustee shall select the tendered Notes of tendering Holders pro rata
based on the amount of Notes and other pari passu Indebtedness of the Company properly tendered).
A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as
may be required by law.



10. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 (or integral multiples of $1,000 in excess thereof). The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of
any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.



11. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.



12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture
and the Notes may be amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note,
the Indenture and the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for the assumption of the Company’s
obligations to Holders of the Notes in case of a merger or consolidation or sale of all or
substantially all of the Company’s assets pursuant to Article V of the Indenture, to make any
change that would provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such Holder, or to comply
with the Trust Indenture Act.


 


A-7









 





13. Defaults and Remedies. (i) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30 days; (ii) the failure to pay
the principal on any Notes, when such principal becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer); (iii) a default in the observance
or performance of any other covenant or agreement contained in the Indenture which default
continues for a period of 30 days after the Company receives written notice specifying the default
(and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of
the outstanding principal amount of the Notes (except in the case of a default under Section 5.1 of
the Indenture, which will constitute an Event of Default with such notice requirement but without
such passage of time requirement); (iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the stated principal amount of any
Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 20 days of receipt by the Company or such Restricted Subsidiary of notice of
any such acceleration) if the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay principal at final
stated maturity or which has been accelerated (in each case with respect to which the 20-day period
described above has elapsed), aggregates $25.0 million or more at any time; (v) one or more
judgments in an aggregate amount in excess of $25.0 million shall have been rendered against the
Company or any of its Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become final and non-appealable;
(vi) certain events of bankruptcy affecting the Company or any of its Significant Subsidiaries; or
(vii) any Guarantee of a Significant Subsidiary ceases to be in full force and effect or is
declared to be null and void and unenforceable or is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other than by reason of release of
a Guarantor in accordance with the terms of the Indenture).



14. Trustee Dealings with Company. Subject to certain limitations, the Trustee under
the Indenture, in its individual or any other capacity, may become owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates as if it were not Trustee.



15. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator or stockholder of the Company, as such, 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.



16. Authentication. This Note shall not be valid until authenticated by the signature
of the Trustee or an authenticating agent.



17. 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).



18. Discharge Prior to Maturity. If the Company deposits with the Trustee or Paying
Agent cash or U.S. Government Securities sufficient to pay the principal or Redemption Price of,
and interest and Additional Interest, if any, on, the Notes to maturity or a specified Redemption
Date and satisfies certain conditions specified in the Indenture, the Company will be discharged
from the Indenture, except for certain Sections thereof.


 


A-8









 





19. Governing Law. The validity and interpretation of the Indenture, the Guarantees,
if any, and this Note shall be governed by and construed in accordance with the laws of the state
of New York, but without
giving effect to applicable principles of conflicts of law to the extent that the application
of the law of another jurisdiction would be required thereby. Each party hereto agrees to submit
to the jurisdiction of any New York state court sitting in the Borough of Manhattan in the City of
New York or any federal court sitting in the Borough of Manhattan in the City of New York in
respect of any suit, action or proceeding arising out of or relating to the Indenture, the
Guarantees, if any, and the Notes, and irrevocably accepts for itself and in respect of its
property, generally and unconditionally, jurisdiction of the aforesaid courts in respect of such
suit or action or proceeding arising out of or relating to the Indenture, the Notes and the
Guarantees. Each of the Trustee, the Company and any Guarantor irrevocably waives, to the fullest
extent that it may effectively do so under applicable law, trial by jury and any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.



20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the correctness or accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption or repurchase and reliance may be
placed only on the other identification numbers placed thereon.



21. Registration Rights. Pursuant to a registration rights agreement, the Company
will be obligated upon the occurrence of certain events to consummate an exchange offer pursuant to
which the Holder of this Note shall have the right to exchange this Series A Note for the Company’s
77/8% Senior Notes due 2020, Series B, which have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects as the Series A Notes. The
Holders shall be entitled to receive certain Additional Interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of such registration rights agreement. In the event that the Company is
required to pay Additional Interest to holders of Notes pursuant to the Registration Rights
Agreement, the Company will provide to the Trustee and the Paying Agent written notice of its
obligation to pay Additional Interest no later than fifteen days prior to the proposed payment date
for the Additional Interest, and an Officers’ Certificate shall set forth the amount of Additional
Interest to be paid by the Company on such payment date. The Trustee and the Paying Agent shall
not at any time be under any duty or responsibility to any holder of Notes to determine the
Additional Interest, or with respect to the nature, extent, or calculation of the amount of
Additional Interest owed, or with respect to the method employed in such calculation of the
Additional Interest.



The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Request may be made to:




Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, Arizona 85283

Attention: Secretary


 


A-9









 





ASSIGNMENT FORM





To assign this Note, fill in the form below:




(I) or (we) assign and transfer this Note to



 




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



 





 





 





 





 




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



and irrevocably appoint                                                             
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.



	 	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	(Sign exactly as your name appears
on the face	 	 
	 

	 	 	 	 of this Note)	 	 






Signature Guarantee:                                                                  
     



Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


A-10









 





OPTION OF HOLDER TO ELECT PURCHASE




If you wish to elect to have all or any portion of this Note purchased by the Company pursuant
to Section 4.10 (“Net Proceeds Offer”) or Section 4.15 (“Change of Control Offer”)
of the Indenture, check the applicable boxes



	 	 	 	 	 	 	 	 	 
	o

	 	Net Proceeds Offer:
	 	 	 	o
	 	Change of Control Offer:
	 
	 	 	 	 	 	 	 	 
	 

	 	in whole o
	 	 	 	 	 	in whole o
	 
	 	 	 	 	 	 	 	 
	 

	 	in part o
	 	 	 	 	 	in part o
	 
	 	 	 	 	 	 	 	 
	 

	 	Amount to be
	 	 	 	 	 	Amount to be
	 

	 	purchased: $                    
	 	 	 	 	 	purchased: $                    






	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signature:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as your name appears
on the other	 	 
	 

	 	 	 	 	 	 	 	 side of this Note)	 	 






Signature Guarantee:                                                             



Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.



Social Security Number or

Taxpayer Identification Number:                                                            


 


A-11









 





SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTES




The following exchanges of a part of this Global Note for Certificated Notes or a part of
another Global Note have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal amount of	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	this Global Note	 	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	Signature of	 
	 	 	in principal amount	 	 	in principal amount	 	 	decrease (or	 	 	authorized officer of	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	increase)	 	 	Trustee or Registrar	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


A-12









 





EXHIBIT B




FORM OF SERIES B NOTE




(Face of Note)




MOBILE MINI, INC.




77/8% SENIOR NOTE DUE 2020




[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]2


 





	 	 	 
	2	 	To be included only if the Note is issued in global
form.





 


B-1












 





MOBILE MINI, INC.




77/8% SENIOR NOTE DUE 2020




	 	 	 	 	 	 	 	 	 
	 	 	 	CUSIP No.	 	 
	No.

	 	 	$	 	 	 	 	 
	 

	 	 	 	 

	 	 






Interest Payment Dates: June 1 and December 1, commencing June 1, 2011

Record Dates: May 15 and November 15



MOBILE MINI, INC., a Delaware corporation (the “Company,” which term includes any
successor corporation under the indenture hereinafter referred to ), for value received, promises
to pay to CEDE & CO., or registered assigns, the principal sum
of $[       ] on December 1,
2020.



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 set forth at this
place.



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




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



	 	 	 	 	 
	 	Dated:



MOBILE MINI, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




Dated:



This is one of the Notes referred to

in the within-mentioned Indenture:



LAW DEBENTURE TRUST COMPANY

OF NEW YORK, as Trustee



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 





 


B-2









 





(Back of Note)




77/8% Senior Notes due 2020




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



1. Interest. The Company promises to pay interest on the principal amount of this
Note at the rate of 7.875% per annum from the date of original issuance until maturity. The
Company shall pay interest semi-annually on June 1 and December 1 of each year, commencing June 1,
2011, or if any such day is not a Business Day, on the next succeeding Business Day (each an
“Interest Payment Date”). Interest on this Note will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the
first Interest Payment Date shall be June 1, 2011. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue payments of the
principal, Purchase Price and Redemption Price of this Note from time to time on demand at a rate
that is 2% per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any (without regard to any applicable grace periods), hereon
from time to time on demand at the same rate to the extent lawful. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.



2. Method of Payment. The Company shall pay interest on the Notes (except defaulted
interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at
the close of business on the May 15 and November 15 next preceding the Interest Payment Date, even
if such Notes are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Any such
installment of interest or Additional Interest, if any, not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Interest Payment Date, and
may be paid to the registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders not less than 10 days prior to such special interest payment date,
or may be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be payable as to
principal, Redemption Price, Purchase Price, interest and Additional Interest, if any, at the
office or agency of the Company maintained for such purpose within or without the City and State of
New York, or, at the option of the Company, payment of interest and Additional Interest may be made
by check mailed to the Holders at their addresses set forth in the register of Holders, provided
that payment by wire transfer of immediately available funds will be required with respect to
principal, Redemption Price and Purchase Price of, and interest and Additional Interest (if any)
on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Trustee or the Paying Agent. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.



3. Paying Agent, Registrar and Transfer Agent. Initially, Deutsche Bank Trust Company
Americas will act as Paying Agent, Registrar and Transfer Agent. The Company may change any Paying
Agent, Registrar or Transfer Agent without notice to any Holder. The Company may act in any such
capacity.



4. Indenture. The Company issued $200.0 million in aggregate principal amount of the
Notes under an Indenture dated as of November 23, 2010 (the “Indenture”) between the
Company, the Guarantors party thereto from time to time, the Trustee, the Paying Agent, Registrar
and Transfer Agent. Additional Notes may be issued from time to time, subject to limitations set
forth in the Indenture. 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 of 1939, as amended (15 U.S.C.
Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The Notes are general obligations of the
Company. The Company may issue Additional Notes under the Indenture.


 


B-3









 





5. Optional Redemption. The Company may redeem the Notes at any time at its option,
in whole or in part, upon not less than 45 days notice to the Trustee and Paying Agent and not less
than 30 nor more than 60 days’ notice to the holders of the Notes. To redeem the Notes prior to
December 1, 2015, the Company must pay a redemption price equal to the greater of:




(a) 100% of the principal amount of the Notes to be redeemed; and




(b) the sum of the present values of (1) the redemption price of the Notes at December
1, 2015 (as set forth below) and (2) the remaining scheduled payments of interest from the
Redemption Date to December 1, 2015, but excluding accrued and unpaid interest, if any, to
the Redemption Date, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months), at the Treasury Rate (determined on the
second business day immediately preceding the Redemption Date) plus 50 basis points,



plus, in either case, 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).



Beginning on December 1, 2015, the Company may redeem the Notes at its option, in whole or in
part, at the following Redemption Prices (expressed as percentages of the principal amount thereof)
if redeemed during the twelve-month period commencing on December 1 of the year set forth below:



	 	 	 	 	 
	Year	 	Percentage	 
	 
	 	 	 	 
	2015
	 	 	103.938	%
	2016
	 	 	102.625	%
	2017
	 	 	101.313	%
	2018 and thereafter
	 	 	100.000	%







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



6. Optional Redemption upon Equity Offerings. At any time, or from time to time, on
or prior to December 1, 2013, the Company may, at its option, use the net cash proceeds of one or
more public or private offering of Qualified Capital Stock (as defined in the Indenture) of the
Company to redeem up to 35% of the principal amount of the Notes issued under the Indenture at a
redemption price of 107.875% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided that at least 65% of the principal amount of
Notes issued under the Indenture remains outstanding immediately after any such redemption and the
Company makes such redemption not more than 90 days after the consummation of any such Equity
Offering.



7. Mandatory Redemption. Except as set forth in Paragraph 9 below with respect to
repurchases of Notes in certain events, the Company shall not be required to make mandatory
redemption or repurchase payments with respect to the Notes.



8. Selection and Notice of Redemption. Subject to the provisions of the Indenture, a
notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $2,000 (or integral multiples of $1,000 in excess thereof) may be
redeemed in part, unless all of the Notes held by a Holder are to be redeemed. On and after the
Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.



If less than all of the Notes are to be redeemed, the Trustee shall select the Notes or
portions thereof to be redeemed (a) in compliance with the requirements of the national securities
exchange, if any, on which the Notes are listed; or (b) if the Notes are not listed on any national
securities exchange, on a pro rata basis, by lot or by such method as the Trustee shall deem fair
and appropriate.


 


B-4









 






9. Repurchase at Option of Holder.



(a) Change of Control Offer. Upon the occurrence of a Change of Control (unless the
Company has exercised its right to redeem the Notes as described in paragraph 5 above and in the
Indenture), the Company shall be required to make an offer (a “Change of Control Offer”) to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
each Holder’s Notes at a Purchase Price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of
repurchase, in accordance with the procedures set forth in the Indenture. Within 30 days following
any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.



(b) Net Proceeds Offer. If on the 366th day after an Asset Sale the Company has not
applied or invested the Net Cash Proceeds or non-cash consideration received by the Company or any
Restricted Subsidiary, as the case may be, in connection with any Asset Sale that is converted into
or sold or otherwise disposed of for cash (as described in Section 4.10 of the Indenture) relating
to such Asset Sale as set forth in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10 of
the Indenture (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net
Cash Proceeds which has not been applied or invested on or before such Net Proceeds Offer Trigger
Date as permitted in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10 of the Indenture
(each, a “Net Proceeds Offer Amount”) shall be applied by the Company to make an offer to
purchase (the “Net Proceeds Offer”) pursuant to Sections 3.10 and 4.10 of the Indenture to
all Holders and, to the extent required by the terms of any other debt that is pari passu with the
Notes (“Pari Passu Debt”), to all holders of such Pari Passu Debt on a date (the “Net
Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders (and holders of any Pari Passu Debt) pro rata,
the maximum amount of Notes and such other Pari Passu Debt equal to the Net Proceeds Offer Amount
with respect to the Notes at a price equal to 100% of the principal amount of the Notes (and Pari
Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the Purchase
Date.



Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of
Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part equal to $2,000 in
integral multiples of $1,000 in excess thereof in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes will
be purchased pro rata based on the aggregate amounts of Notes and Pari Passu Debt of the Company
properly tendered (and the Trustee shall select the tendered Notes of tendering Holders pro rata
based on the amount of Notes and other pari passu Indebtedness of the Company properly tendered).
A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as
may be required by law.



10. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 (or integral multiples of $1,000 in excess thereof). The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of
any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.



11. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.


 


B-5









 





12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture
and the Notes may be amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note,
the Indenture and the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for the assumption of the Company’s
obligations to Holders of the Notes in case of a merger or consolidation or sale of all or
substantially all of the Company’s assets pursuant to Article V of the Indenture, to make any
change that would provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such Holder, or to comply
with the Trust Indenture Act.



13. Defaults and Remedies. (i) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30 days; (ii) the failure to pay
the principal on any Notes, when such principal becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer); (iii) a default in the observance
or performance of any other covenant or agreement contained in the Indenture which default
continues for a period of 30 days after the Company receives written notice specifying the default
(and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of
the outstanding principal amount of the Notes (except in the case of a default with respect to the
“Merger, Consolidation and Sale of Assets” covenant, which will constitute an Event of Default with
such notice requirement but without such passage of time requirement); (iv) the failure to pay at
final maturity (giving effect to any applicable grace periods and any extensions thereof) the
stated principal amount of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such Indebtedness (which
acceleration is not rescinded, annulled or otherwise cured within 20 days of receipt by the Company
or such Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount
of such Indebtedness, together with the principal amount of any other such Indebtedness in default
for failure to pay principal at final stated maturity or which has been accelerated (in each case
with respect to which the 20-day period described above has elapsed), aggregates $25.0 million or
more at any time; (v) one or more judgments in an aggregate amount in excess of $25.0 million shall
have been rendered against the Company or any of its Restricted Subsidiaries and such judgments
remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable; (vi) certain events of bankruptcy affecting the Company or any of
its Significant Subsidiaries; or (vii) any Guarantee of a Significant Subsidiary ceases to be in
full force and effect or is declared to be null and void and unenforceable or is found to be
invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Guarantee
(other than by reason of release of a Guarantor in accordance with the terms of the Indenture).



14. Trustee Dealings with Company. Subject to certain limitations, the Trustee under
the Indenture, in its individual or any other capacity, may become owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates as if it were not Trustee.



15. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator or stockholder of the Company, as such, 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.



16. Authentication. This Note shall not be valid until authenticated by the signature
of the Trustee or an authenticating agent.



17. 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).



18. Discharge Prior to Maturity. If the Company deposits with the Trustee or Paying
Agent cash or U.S. Government Securities sufficient to pay the principal or Redemption Price of,
and interest and Additional Interest, if any, on, the Notes to maturity or a specified Redemption
Date and satisfies certain conditions specified in the Indenture, the Company will be discharged
from the Indenture, except for certain Sections thereof.


 


B-6









 





19. Governing Law. The validity and interpretation of the Indenture, the Guarantees,
if any, and this Note shall be governed by and construed in accordance with the laws of the state
of New York, but without
giving effect to applicable principles of conflicts of law to the extent that the application
of the law of another jurisdiction would be required thereby. Each party hereto agrees to submit
to the jurisdiction of any New York state court sitting in the Borough of Manhattan in the City of
New York or any federal court sitting in the Borough of Manhattan in the City of New York in
respect of any suit, action or proceeding arising out of or relating to the Indenture, the
Guarantees, if any, and the Notes, and irrevocably accepts for itself and in respect of its
property, generally and unconditionally, jurisdiction of the aforesaid courts in respect of such
suit or action or proceeding arising out of or relating to the Indenture, the Notes and the
Guarantees. Each of the Trustee, the Company and any Guarantor irrevocably waives, to the fullest
extent that it may effectively do so under applicable law, trial by jury and any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.



20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the correctness or accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption or repurchase and reliance may be
placed only on the other identification numbers placed thereon.



The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Request may be made to:




Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, Arizona 85283

Attention: Secretary


 


B-7









 





ASSIGNMENT FORM





To assign this Note, fill in the form below:




(I) or (we) assign and transfer this Note to



 




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



 





 





 





 





 




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



and irrevocably appoint                                                             
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.



Date:                                         




	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 



	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face 	 	 
	 

	 	 	 	 of this Note)	 	 







Signature Guarantee:                                                             




Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


B-8









 





OPTION OF HOLDER TO ELECT PURCHASE




If you wish to elect to have all or any portion of this Note purchased by the Company pursuant
to Section 4.10 (“Net Proceeds Offer”) or Section 4.15 (“Change of Control Offer”)
of the Indenture, check the applicable boxes



	 	 	 	 	 	 	 
	o

	 	Net Proceeds Offer:
	 	o
	 	Change of Control Offer:
	 
	 	 	 	 	 	 
	 

	 	in whole o
	 	 	 	in whole o
	 
	 	 	 	 	 	 
	 

	 	in part o
	 	 	 	in part o
	 
	 	 	 	 	 	 
	 

	 	Amount to be
	 	 	 	Amount to be
	 

	 	purchased: $                    
	 	 	 	purchased: $                    






Dated:                                         



	 	 	 	 	 	 	 
	 

	 	Signature:	 	 	 	 
	 

	 	 	 	 

(Sign exactly as your name appears on the other
	 	 
	 

	 	 	 	 side of this Note)	 	 






Signature Guarantee:                                                             



Signatures must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.



Social Security Number or

Taxpayer Identification Number:                                                             


 


B-9









 





SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTES




The following exchanges of a part of this Global Note for Certificated Notes or a part of
another Global Note have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal amount of	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	this Global Note	 	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	Signature of	 
	 	 	in principal amount	 	 	in principal amount	 	 	decrease (or	 	 	authorized officer of	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	increase)	 	 	Trustee or Registrar	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


B-10









 





EXHIBIT C




GUARANTEE3




For value received, each of the undersigned hereby unconditionally guarantees to the Holder of
this Note the cash payments in United States dollars of principal of, premium, if any, and interest
on this Note (and including Additional Interest payable thereon) in the amounts and at the times
when due and interest on the overdue principal, premium, if any, and interest, if any, of this
Note, if lawful, and the payment or performance of all other Obligations of the Company under the
Indenture (as defined below) or this Note, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article X of the Indenture
and this Guarantee. This Guarantee will become effective in accordance with Article X of the
Indenture and its terms shall be evidenced therein. The validity and enforceability of this
Guarantee shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of November 23, 2010, between Mobile Mini, Inc., a Delaware corporation, as
issuer (the “Company”), Law Debenture Trust Company of New York, as trustee (the
“Trustee”) and Deutsche Bank Trust Company Americas as Paying Agent, Registrar and Transfer
Agent (in such capacities the “Paying Agent”, “Registrar” and the “Transfer
Agent”), respectively (as amended or supplemented, the “Indenture”).



THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor
hereby agrees 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 Guarantee.




This Guarantee is subject to release upon the terms set forth in the Indenture.



	 	 	 	 	 
	 	[GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


 





	 	 	 
	3	 	Notation of Guarantee to be delivered on the Issue Date
and upon each Additional Guarantee pursuant to Section 4.16.




 


C-1









 





EXHIBIT C(1)




FORM OF REGULATION S CERTIFICATE




                                        ,                    




Law Debenture Trust Company of New York

400 Madison Avenue, 4th Floor

New York, New York 10017




Attention: Corporate Trust Services



Deutsche Bank Trust Company Americas

Trust and Securities Services

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, New York 10005




Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.


Deutsche Bank National Trust Company

Trust & Securities Services

100 Plaza One

6th Floor — MS JCY03-0699

Jersey City, NJ 07311-3901




Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




	 	 	 	 	 
	 

	 	Re:
	 	Mobile Mini, Inc. (the “Company”)
	 

	 	 	 	77/8% Senior Notes due 2020 (the “Notes”)






Dear Sirs:



This letter relates to U.S. $                      principal amount at maturity of Notes represented
by a certificate (the “Legended Certificate”) which bears a legend outlining restrictions
upon transfer of such Legended Certificate. Pursuant to Section 2.1 of the Indenture (the
“Indenture”) dated as of November 23, 2010 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, as amended.



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
letter have the meanings set forth in Regulation S.



	 	 	 	 	 
	 	Very truly yours,



[Name of Transferee]

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 




 


C(1)-1









 







EXHIBIT C(2)




CERTIFICATE TO BE DELIVERED

UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES




                                        ,                     




Deutsche Bank Services Tennessee Inc.

648 Grassmere Park Road

Nashville, Tennessee 37211

Attention: Transfer Department




Deutsche Bank Trust Company Americas

Trust and Securities Services

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, New York 10005

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




Deutsche Bank National Trust Company

Trust & Securities Services

100 Plaza One

6th Floor — MS JCY03-0699

Jersey City, NJ 07311-3901

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




	 	 	 	 	 
	 

	 	Re:
	 	Mobile Mini, Inc. (the “Company”)
	 

	 	 	 	77/8% Senior Notes due 2020 (the “Notes”)






Dear Sirs:




This Certificate relates to $                      principal amount of Notes held in




o book-entry* or o certificated form*




by
                                         (the “Transferor”).




The Transferor:*



o has requested the Registrar by written order to deliver in exchange for its beneficial
interest in the Global Note held by the Depositary a Note or Notes in certificated, registered form
of authorized denominations in an aggregate principal amount equal to its beneficial interest in
such Global Note (or the portion thereof indicated above); or



o has requested the Registrar by written order to exchange or register the transfer of a Note or
Notes.



In connection with such request and in respect of each such Note, the Transferor does hereby
certify that Transferor is familiar with the Indenture relating to the above captioned Notes and as
provided in Section 2.6 of such Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:*


 


C(2)-1









 






o Such Note is being acquired for the Transferor’s own account, without transfer.



o Such Note is being transferred to a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act of 1933, as amended (the “Securities Act”)) in reliance on Rule
144A and accordingly the undersigned does hereby certify that the Note is being transferred to a
person that the transferor reasonably believes is purchasing the Note for its own account, or for
one or more accounts with respect to which such Person exercises sole investment discretion and the
Notes have been transferred in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities law of any state of the United States.



o Such Note is being transferred to an “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) in accordance with Regulation D under the Securities Act.



o Such Note is being transferred pursuant to an exemption from registration in accordance with
Regulation S under the Securities Act.



o Such Note is being transferred in accordance with Rule 144 under the Securities Act, or
pursuant to an effective registration statement under the Securities Act.



o Such Note is being transferred in reliance on and in compliance with an exemption from the
registration requirements of the Securities Act, other than Rule 144A, 144 or Rule 904 under the
Securities Act. An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.



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,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[INSERT NAME OF TRANSFEROR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title	 	 






Date:                                         


 





	 	 	 
	*	 	Check applicable box



 


C(2)-2









 









EXHIBIT D




FORM OF CERTIFICATE TO BE

DELIVERED IN CONNECTION WITH

TRANSFERS TO NON-QIB ACCREDITED INVESTORS




                                        ,                    




Law Debenture Trust Company of New York

400 Madison Avenue, 4th Floor

New York, New York 10017

Attention: Corporate Trust Services




Deutsche Bank Trust Company Americas

Trust and Securities Services

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, New York 10005

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




Deutsche Bank National Trust Company

Trust & Securities Services

100 Plaza One

6th Floor — MS JCY03-0699

Jersey City, NJ 07311-3901

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




	 	 	 	 	 
	 

	 	Re:
	 	Mobile Mini, Inc. (the “Company”)
	 

	 	 	 	77/8% Senior Notes due 2020 (the “Notes”)






Dear Sirs:



In connection with our proposed purchase of 77/8% Senior Notes due 2020 (the “Notes”) of
the Company, 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 November 23, 2010 relating to the Notes (the
“Indenture”) 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 Notes have not been registered under the Securities Act or any other
applicable securities law, and that the Notes may not be offered, sold or otherwise transferred
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 offer, sell, transfer,
pledge, hypothecate or otherwise dispose of any Notes, we will do so only (A) to the Company or any
Subsidiary thereof, (B) inside the United States to a “qualified institutional buyer” in compliance
with Rule 144A under the Securities Act, (C) inside the United States to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes to you a signed
letter substantially in the form of this letter, (D) outside the United States to a foreign person
in compliance 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), (F) in accordance
with another exemption from the registration requirements of the
Securities Act, or (G) 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 and in the
Indenture.


 


D-1









 





3. We understand that, with respect to any proposed transfer of any Notes, pursuant to
paragraphs 2(B), 2(C), 2(D) and 2(E) above, 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 transfer complies with such restrictions and that with respect
to any transfer in accordance with paragraph 2(F) we will be required to furnish to you and the
Company such legal opinions and other information as you or the Company may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. We further understand that the
Notes purchased by us will bear a legend to such effect. We acknowledge that no representation is
made as to the availability of any Rule 144 exemption from the registration requirements of the
Securities Act.



4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) 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 acquiring the Notes for investment purposes and not
with a view to, or offer of sale in connection with, any distribution in violation of the
Securities Act or the securities laws of any state of the United States or any other applicable
jurisdiction, and we 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 	 
	 	 	 	 




 


D-2









 







EXHIBIT E




FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS

PURSUANT TO REGULATION S




                                        ,                     




Law Debenture Trust Company of New York

400 Madison Avenue, 4th Floor

New York, New York 10017

Attention: Corporate Trust Services




Deutsche Bank Trust Company Americas

Trust and Securities Services

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, New York 10005

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




Deutsche Bank National Trust Company

Trust & Securities Services

100 Plaza One

6th Floor — MS JCY03-0699

Jersey City, NJ 07311-3901

Fax: (732) 578-4635

Attention: Corporates Team / Mobile Mini, Inc.




	 	 	 	 	 
	 

	 	Re:
	 	Mobile Mini, Inc. (the “Company”)
	 

	 	 	 	77/8% Senior Notes due 2020 (the “Notes”)






Dear Sirs:



In connection with our proposed sale of $                     aggregate principal amount at maturity 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, as amended, 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, any of our affiliates or any
person acting on our behalf in the United States in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S, as applicable;




(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the U.S. Securities Act of 1933; and


 


E-1









 






(5) if we are a dealer or a person receiving a selling concession fee or other
remuneration in respect of the Notes, and the proposed transfer takes place within 40 days
of the Issue Date (as defined in the Indenture), or we are an officer or director of the
Company or an Initial Purchaser (as defined in the Indenture), we certify that the proposed
transfer is being made in accordance with Rule 904(b) of Regulation S.



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
letter have the meanings set forth in Regulation S.



	 	 	 	 	 
	 	Very truly yours,



[Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 




 


E-2