Blueprint





 






Exhibit
4.7

 


This
THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental
Indenture”), dated as of ________, 20__, among GENERAL
FINANCE CORPORATION, a Delaware corporation (the
“Company”),
and ___________, as trustee (the “Trustee”).

 


RECITALS

 


WHEREAS, the
Company and the Wells Fargo Bank, National Association have
heretofore executed and delivered an indenture, dated as of June
18, 2014 (the “Indenture”), providing
for the issuance by the Company from time to time of its debt
securities to be issued in one or more series;

 


WHEREAS, Sections
2.1 and 9.1 of the Indenture provide, among other things, that the
Company and the trustee under this Third Supplemental Indenture
(the “Trustee”) may, without
the consent of Holders, enter into indentures supplemental to the
Indenture to provide for specific terms applicable to any series of
Securities;

 


WHEREAS, Section
2.1 of the Indenture provides, among other things, that there shall
be established in or pursuant to a Board Resolution, and set forth,
or determined in the manner provided, in an Officers’
Certificate of the Company or in a Company Order, or established in
one or more indentures supplemental to the Indenture, prior to the
issuance of Securities of any series, or any exceptions to or
changes to those set forth in Article X of the
Indenture;

 


WHEREAS, the
Company intends by this Third Supplemental Indenture to create and
provide for the issuance of a new series of debt securities to be
designated as the “___% Senior Securities due ____”
(the “Securities”);

 


WHEREAS, pursuant
to Section 9.1(9) and (11) of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Third
Supplemental Indenture to amend or supplement the Indenture,
without the consent of any Holder of Securities; and

 


WHEREAS, all things
necessary to make the Securities, when executed by the Company and
authenticated and delivered by the Trustee, issued upon the terms
and subject to the conditions set forth hereinafter and in the
Indenture and delivered as provided in the Indenture against
payment therefor, valid, binding and legal obligations of the
Company according to their terms, and all actions required to be
taken by the Company under the Indenture to make this Third
Supplemental Indenture a valid, binding and legal agreement of the
Company, have been done.

 


NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as
follows:


 




ARTICLE I

  




DEFINITIONS
AND INCORPORATION BY REFERENCE

 

Section
1.01   Definitions.

 

(a) All capitalized
terms used herein and not otherwise defined below shall have the
meanings ascribed thereto in the Indenture.

 

(b) The following are
definitions used in this Third Supplemental Indenture, and to the
extent that a term is defined both herein and in the Indenture, the
definition in this Third Supplemental Indenture shall govern with
respect to the Securities.

 


“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.


 


“Acquisition”
means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any
division or business line of) any other Person, or (b) the
purchase or other acquisition (whether by means of a merger,
amalgamation, consolidation, or otherwise) by a Person or its
Subsidiaries of all or substantially all of the Capital Stock of
any other Person.


 


“Additional
Issue Date” means the date or dates on which the Company
issues Additional Securities issued as a result of the exercise by
the underwriters of the offering of the Securities of their right
to purchase up to $___ million aggregate principal amount of
Securities within 30 days of the date of the prospectus relating to
the offering of the Securities.


 


“Additional
Securities” means Securities issued pursuant to Article II of
the Indenture and in compliance with Section 4.04 hereof, in
addition to and having substantially the same terms as the
Securities issued on the Issue Date.


 


“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 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 Restricted Subsidiary
(including any Sale and Leaseback Transaction) to any Person other
than the Company or a Restricted Subsidiary of: (1) any Capital
Stock of any Restricted Subsidiary; or (2) any other property or
assets of the Company or any Restricted Subsidiary 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 a
Restricted Subsidiary receive aggregate consideration (exclusive of
any indemnities) of less than $5.0 million; (b) the sale, lease,
conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Article V
hereof; (c) any Restricted Payment permitted by Section 4.02 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 4.07; (g) the lease, assignment or
sublease of any real or personal property in the ordinary course of
business; (h) sales of Unrestricted Subsidiaries; (i) disposals,
trade-ins or replacements of obsolete or worn-out equipment or
other assets; (j) the sale, lease or other disposition of inventory
in the ordinary course of business; and (k) the surrender, or
waiver of contract rights or settlement, release or surrender of
contract, tort or other claims.


 


“Borrowing
Base” shall have the meaning given such term in the Credit
Agreement.


 


“Capital
Stock” means:


 


(1)           in
the case of a corporation, corporate stock;


 


(2)           in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;


 


(3)           in
the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests;
and


 


(4)           any
other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person;


 


but
excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.


 


“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 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.


 


“Cash
Management Services” means any cash management or related
services including treasury, depository, return items, overdraft,
controlled disbursement, merchant store value cards, e-payables
services, electronic funds transfer, interstate depository network,
automatic clearing house transfer (including the Automated Clearing
House processing of electronic funds transfers through the direct
Federal Reserve Fedline system) and other cash management
arrangements.


 


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


 


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


 


(2)           the
consummation of any transaction (including without limitation, any
merger or consolidation) the result of which is that any
“person” (as that term is used in Section 13(d)(3) of
the Exchange Act) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly
or indirectly, of more than 50% of the outstanding Voting Stock of
the Company, measured by voting power rather than number of
shares;


 


(3)           the
Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the shares of the Voting
Stock of the Company outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for, a
majority of the Voting Stock of the surviving Person immediately
after giving effect to such transaction;


 


(4)           the
first day on which the majority of the members of the board of
directors of the Company cease to be Continuing Directors;
or


 


(5)           the
adoption of a plan relating to the liquidation or dissolution of
the Company.


 


“Commission”
means the Securities and Exchange Commission.


 


“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.


 


 “Comparable
Treasury Issue” means the United States treasury security
selected by an Independent Investment Bank as having an actual or
interpolated maturity comparable to the remaining term of the
Securities to be redeemed 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 Securities.


 


“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;


 


(c)           Consolidated
Non-cash Charges less any non-cash items increasing Consolidated
Net Income for such period, and


 


(d)           any
expenses, charges or other costs related to any equity offering,
Permitted Investment, acquisition (including amounts paid in
connection with the acquisition or retention of one or more
individuals comprising part of a management team retained to manage
the acquired business, provided that such payments are made
at the time of such
acquisition and are consistent with the customary practice in the
industry at the time of such acquisition), disposition, incurrence
or refinancing of Indebtedness permitted to be incurred by the
Indenture, (whether or not successful)


 


all as
determined on a consolidated basis for such Person and its
Restricted Subsidiaries in accordance with GAAP.


 


“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 Officer’s
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 Hedge Agreements, shall be deemed to accrue
at the rate per annum resulting after giving effect to the
operation of such agreements.


 


Furthermore, in
calculating “Consolidated EBITDA” for purposes of
determining the “Consolidated Fixed Charge Coverage
Ratio,” the net income (or loss) of a Restricted Subsidiary
that has become a Guarantor during the relevant Four Quarter Period
shall be included from the beginning of such Four Quarter
Period.


 


“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 to any Person
other than the Company or a Restricted Subsidiary 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 Hedge Agreements
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


 


(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


 


(a)           there
shall be included thereto (without duplication) the amount of cash
dividends or distributions actually received by the referent Person
or a Wholly Owned Restricted Subsidiary of the referent Person from
any Person that is not a Restricted Subsidiary; and


 


(b)           there
shall be excluded therefrom (without duplication):


 


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


 


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


 


(3)           the
net income (but not loss) of any Restricted Subsidiary (other than
a Guarantor of the Securities)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)           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;


 


(5)           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);


 


(6)           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;


 


(7)           fees
and expenses incurred in connection with the refinancing or
repayment of indebtedness;


 


(8)           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);


 


(9)           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;


 


(10)           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;


 


(11)           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;


 


(12)           any
non-cash income (or loss) related to the recording of the fair
market value of Hedge Agreements entered into in the ordinary
course of business and not for speculative purposes;
and


 


(13)           the
cumulative effect of a change in accounting
principles.


 


“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).


 


“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.”


 


“Continuing
Director” means, as of any date of determination, any member
of the board of directors of the Company who:


 


(1)           was
a member of such board of directors on the Issue Date;
or


 


(2)           was
nominated for election or elected to such board of directors with
the approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such nomination
or election.


 


“Credit
Agreement” means the amended and restated credit agreement,
dated as of April 7, 2014, as amended to date, by and among Wells
Fargo Bank, National Association, as Administrative Agent, Wells
Fargo Bank, National Association and HSBC Bank USA, N.A.,
as Co-Lead Arrangers, Wells Fargo Bank, National Association, as
Book Runner, HSBC Bank USA, N.A., as Syndication Agent,
the lenders that are parties thereto, Pac-Van, Inc., Lone Star
Tank Rental Inc. and the Subsidiaries that are signatories
thereto, as borrowers, 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.


 


“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
Securities.


 


“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.


 


“Earn-Outs”
shall mean unsecured liabilities of the Company or a Restricted
Subsidiary arising under an agreement to make any deferred payment
as a part of the purchase price for a Permitted Acquisition,
including performance bonuses or consulting payments in any related
services, employment or similar agreement, in an amount that is
subject to or contingent upon the revenues, income, cash flow or
profits (or the like) of the target of such Permitted
Acquisition.


 


“Equity
Offering” means a public or private 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;


 


(2)           the
registration of common stock of the Company on Form S-4 issued in
connection with acquisitions by the Company or any Subsidiary of
the Company.


 


(3)           issuances
to any Subsidiary of the Company.


 


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


 


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


 


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


 


“guarantee”
means, as to any Person, a guarantee, direct or indirect, in any
manner, including, without limitation, by way of a pledge of assets
or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of another Person,
but excluding endorsements for collection or deposit in the normal
course of business.


 


“Guarantor”
means any Restricted Subsidiary of the Company that fully and
unconditionally guarantees the payment of principal of, premium, if
any, and accrued and unpaid interest on the Notes by executing and
delivering to the Trustee a supplemental indenture, until such time
as such Restricted Subsidiary is released from its Subsidiary
Guarantee.


 


“Hedge
Agreement” means a “swap agreement” as that term
is defined in the Bankruptcy Code.


 


“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 Hedge Agreements of such Person; and


 


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


 


For
purposes hereof, the “maximum fixed repurchase price”
of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms
of such Disqualified Capital Stock as if such Disqualified Capital
Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this 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.


 


“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.


 


“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.


 


“Issue
Date” means _____________.


 


“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.


 


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


 


 “Pari
Passu Debt” means any Indebtedness of the Company that ranks
pari passu in right of payment with the Securities, as
applicable.


 


“Permitted
Acquisition” means any Acquisition so long as:


 


(1)
           no
Default or Event of Default shall have occurred and be continuing
or would result from the consummation of the proposed
Acquisition,


 


(2)           no
Indebtedness will be incurred, assumed, or would exist with respect
to the Company or any Restricted Subsidiary as a result of such
Acquisition, other than (A) Indebtedness permitted under clause (7)
of the definition of Permitted Indebtedness or (B) such
Indebtedness is incurred in compliance with Section
4.04(a);


 


(3)           no
Liens will be incurred, assumed, or would exist with respect to the
assets of the Company or any Restricted Subsidiary as a result of
such Acquisition other than Permitted Liens; and


 


 (4)           the
assets being acquired (other than a de minimis amount of assets in
relation to the Company and its Restricted Subsidiaries’
total assets), or the Person whose Capital Stock is being acquired,
constitute a Permitted Business.


 


“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 Securities issued on the Issue Date or Additional Issue
Date;


 


 (2)           Indebtedness
incurred pursuant to the Credit Agreement, including any permitted
refinancing thereof, in an aggregate principal amount at any time
outstanding not to exceed the greater of (i) $200 million (or $225
million upon the exercise of the $25 million accordion increase
under the Credit Agreement) less the amount of all required
permanent repayments (which are accompanied by a corresponding
permanent commitment reduction thereunder) and (ii) the Borrowing
Base, including any permitted refinancing thereof;


 


(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)           Permitted
Purchase Money Indebtedness;


 


(5)           endorsement
of instruments or other payment items for deposit;


 


(6)           Indebtedness
consisting of (i) unsecured guarantees incurred in the
ordinary course of business with respect to surety and appeal
bonds, performance bonds, bid bonds, appeal bonds, completion
guarantee and similar obligations; (ii) unsecured guarantees
arising with respect to customary indemnification obligations to
purchasers in connection with dispositions in the ordinary course
of business; and (iii) unsecured guarantees with respect to
Indebtedness of the Company or a Restricted Subsidiary, to the
extent that the Person that is obligated under such guaranty could
have incurred such underlying Indebtedness,


 


(7)           Acquired
Indebtedness of the Company or any Restricted Subsidiary including
any permitted refinancing thereof, in an aggregate principal amount
not to exceed $10.0 million outstanding at any one time and any
refinancing thereof;


 


(8)           Indebtedness
incurred in the ordinary course of business under performance,
surety, statutory, or appeal bonds;


 


(9)           Indebtedness
owed to any Person providing property, casualty, liability, or
other insurance to the Company or any Restricted Subsidiary, so
long as the amount of such Indebtedness is not in excess of the
amount of the unpaid cost of, and shall be incurred only to defer
the cost of, such insurance for the year in which such Indebtedness
is incurred and such Indebtedness is outstanding only during such
year;


 


(10)           Indebtedness
under Hedge Agreements that are incurred for the bona fide purpose
of hedging the interest rate, commodity, or foreign currency risks
associated with Company and its Subsidiaries’ operations and
not for speculative purposes as determined in good faith by the
Board of Directors of the Company;


 


  (11)                      Indebtedness
incurred in the ordinary course of business in respect of credit
cards, credit card processing services, debit cards, stored value
cards, commercial cards (including so-called “purchase
cards”, “procurement cards” or
“p-cards”), or Cash Management Services;


 


(12)           unsecured
Subordinated Indebtedness owing to former employees, officers, or
directors (or any spouses, ex-spouses, or estates of any of the
foregoing) 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 our Board of Directors, so long as (i) no Default or
Event of Default has occurred and is continuing or would result
from the incurrence of such Indebtedness and (ii) the
aggregate amount of all such Indebtedness outstanding at any one
time does not exceed $250,000;


 


(13)           unsecured
Indebtedness owing to sellers of assets or Capital Stock to the
Company or a Restricted Subsidiary that is incurred by the Company
or a Restricted Subsidiary in connection with the consummation of
one or more Permitted Acquisitions so long as the aggregate
principal amount for all such unsecured Indebtedness does not
exceed $15 million at any one time outstanding;


 


(14)           contingent
liabilities in respect of any indemnification obligation,
adjustment of purchase price, non-compete, or similar obligation of
the Company or any Restricted Subsidiary Party incurred in
connection with the consummation of one or more Permitted
Acquisitions;


 


(15)           Indebtedness
composing Permitted Investments;


 


(16)           unsecured
Indebtedness incurred in respect of netting services, overdraft
protection, and other like services, in each case, incurred in the
ordinary course of business,


 


(17)           unsecured
Indebtedness of the Company or any Restricted Subsidiary in respect
of Earn-Outs owing to sellers of assets or Capital Stock to the
Company or a Restricted Subsidiary that is incurred in connection
with the consummation of one or more Permitted
Acquisitions;


 


(18)           accrual
of interest, accretion or amortization of original issue discount,
or the payment of interest in kind, in each case, on Indebtedness
that otherwise constitutes Permitted Indebtedness,


 


(19)           (i)
a guarantee by the Company of any Indebtedness of any Restricted
Subsidiary, provided that such Indebtedness was incurred in
accordance with Section 4.04 and (ii) a guarantee by any Restricted
Subsidiary of any Indebtedness of the Company provided that (a)
such Indebtedness was incurred in accordance with Section 4.04 and
(b) the Restricted Subsidiary concurrently guarantees the
Securities in accordance with Section 4.08;

 


(20)           the
incurrence by the Company or any Restricted Subsidiary of
Indebtedness in respect of workers’ compensation and claims
arising under similar legislation, captive insurance companies, or
pursuant to self-insurance obligations and not in connection with
the borrowing of money or the obtaining of advances or
credit;

 


(21)           Indebtedness
of a Restricted Subsidiary to the Company or to a Restricted
Subsidiary for so long as such Indebtedness is held by the Company
or a Restricted Subsidiary or the holder of a Lien permitted under
the Indenture, in each case subject to no Lien held by a Person
other than the Company or a Restricted Subsidiary or the holder of
a Lien permitted under the Indenture; provided that if as of any
date any Person other than the Company or a Restricted Subsidiary
or the holder of a Lien permitted under the 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 (21) by the issuer of such Indebtedness;


 


(22)           Indebtedness
of the Company to a Restricted Subsidiary for so long as such
Indebtedness is held by a Restricted Subsidiary or the holder of a
Lien permitted under the Indenture, in each case subject to no Lien
other than a Lien permitted under the Indenture; provided that (a)
any Indebtedness of the Company to any Restricted Subsidiary is
unsecured and subordinated, pursuant to a written agreement, to the
Company’s obligations under the Indenture and the Securities
and (b) if as of any date any Person other than a Restricted
Subsidiary or the holder of a Lien permitted under the 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 (22) by the Company;


 


(23)
Indebtedness incurred pursuant to that certain Facility Agreement
dated March 31, 2014 among the Company, GFN U.S. Australasia
Holdings, Inc. and Credit Suisse AG in an aggregate principal
amount at any time outstanding not to exceed $25 million
thereunder;


 


(24)           Indebtedness
incurred pursuant to the Master Lease Agreement number 27026-90000
dated April 29, 2014 by and among Banc of America Leasing &
Capital, LLC, Pac-Van, Inc. and Lone Star Tank Rental Inc. in an
aggregate amount at any time outstanding not to exceed $10
million.


 


(25)           Indebtedness
incurred pursuant to the Credit and Security Agreement, dated
October 1, 2012, by and among Southern Frac, LLC, GFN Manufacturing
Corporation, the Company and Wells Fargo Bank, National
Association, as amended as of the date hereof, including any
permitted refinancing thereof, in an aggregate principal amount at
any time outstanding not to exceed $15 million, less the amount of
all required permanent repayments (which are accompanied by a
corresponding permanent commitment reduction
thereunder).


 


(26)           Indebtedness
consisting of (i) Acquired Indebtedness and/or (ii) Additional
Securities or any unsecured Indebtedness of the Company represented
by notes or bonds (A) with terms substantially identical to the
Securities and (B) having a final maturity date no earlier that the
final maturity date of the Securities (and no optional redemption
prior to the final maturity date of the Securities), in all cases
incurred by the Company to finance (or refinance within 180 days of
the incurrence thereof of any Indebtedness incurred to finance) the
acquisition of any assets used in a Permitted Business or all or
substantially all of the Capital Stock of a Person engaged in a
Permitted Business; provided that in the case of both clauses (i)
and (ii) on the date of the incurrence (or refinancing) of such
Indebtedness, after giving effect to the incurrence thereof and the
use of proceeds therefrom, either


 


(a)           the
Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Section 4.04(a) or


 


(b)           the
Consolidated Fixed Charge Coverage Ratio of the Company would not
be less than the Consolidated Fixed Charge Coverage Ratio of the
Company immediately prior to the incurrence of such
Indebtedness.

 

(27)           Refinancing
Indebtedness;


 


(28)           (i)
any other unsecured Indebtedness incurred by the Company or any of
its Restricted Subsidiaries, including any permitted refinancing
thereof, and (ii) guarantees by the Company of amounts borrowed
under the credit facility described in clause (25) above, in either
case in an aggregate outstanding amount not to exceed at any one
time outstanding the greater of (x) $4.0 million and (y) 1% of
Consolidated Assets of the Company (which amount may, but need not,
be incurred in whole or in part under the Credit
Agreement).


 


For
purposes of determining compliance with Section 4.04, (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 (27) above or is entitled to be incurred
pursuant to the Consolidated Fixed Charge Coverage Ratio provisions
of Section 4.04, 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. For the avoidance of doubt the foregoing will not
prohibit the Company or any of its Restricted Subsidiaries from
incurring Indebtedness in an amount in excess of the amount
permitted to be incurred under clause (2) so long as such Debt
is otherwise Permitted Indebtedness; (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
4.04 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 4.04.


 


“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;


 


(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)           Hedge
Agreements 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) $5.0 million and (y) 1.0% of Consolidated Assets of
the Company at any one time outstanding; provided, that if an Investment is made
pursuant to this clause in a Person that is not a Restricted
Subsidiary and such Person subsequently becomes a Restricted
Subsidiary or is subsequently designated a Restricted Subsidiary,
such Investment, if applicable, shall thereafter be deemed to have
been made pursuant to clause (1) or (2) above and not this
clause;


 


(7)           investments
in the Securities and any other Indebtedness of the Company or any
Restricted Subsidiary;


 


(8)
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;


 


(9)           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;


 


(10)           Investments
represented by guarantees of Indebtedness that are otherwise
permitted under this Indenture;


 


(11)           Investments
made by the Company or its subsidiaries in the Capital Stock of
Royal Wolf Holdings Limited;


 


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


 


(13)           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;


 


(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 Hedge Agreements which Hedge Agreements relate to
Indebtedness that is otherwise permitted under this
Indenture;


 


(12)           Liens
securing Acquired Indebtedness incurred in accordance with Section
4.04; 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;


 


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


 


(14)           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)           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;


 


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


 


(17)           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;


 


(18)           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 $10.0
million at any time in the aggregate; and


 


(19)           Liens
existing on the Issue Date securing the repayment of amounts
borrowed under the Credit Agreement;


 


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


 


“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 Security to be repurchased,
the date fixed for such repurchase by or pursuant to this
Indenture.


 


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


 


“Permitted
Purchase Money Indebtedness” means, as of any date of
determination, Indebtedness incurred after the Issue Date and at
the time of, or within 20 days after, the acquisition of any fixed
assets for the purpose of financing all or any part of the
acquisition cost thereof, in an aggregate principal amount
outstanding at any one time not in excess of $3
million.


 


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


 


“Reference
Treasury Dealer” means a primary U.S. Government securities
dealer in New York City (a “Primary Treasury Dealer”)
chosen by the Company; provided that if such dealer shall cease to
be 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. (New York City time) 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 Indebtedness incurred in accordance with
the Section 4.04(a) or described in clauses (1), (2), (3), (4),
(7), (24), (25), (26), (27) and (28) 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;


 


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
Securities, then such Refinancing Indebtedness shall be subordinate
to the Securities at least to the same extent and in the same
manner as the Indebtedness being Refinanced.


 


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


 


“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.


 


“Significant
Subsidiary”, with respect to any Person, means any 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.


 


“Subordinated
Indebtedness” means Indebtedness of the Company that is
subordinated or junior in right of payment to the
Securities.


 


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


 


“Subsidiary
Guarantee” means any guarantee of the Securities by any
Restricted Subsidiary.


 


“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.


 


“Unrestricted
Subsidiary” of any Person means:


 


(1)           unless
otherwise designated by the Company’s Board of Directors,
Royal Wolf Holdings Limited, an Australian corporation, and its
subsidiaries;


 


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


 


(3)           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.


 


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 4.04;
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 Officer’s
Certificate certifying that such designation complied with the
foregoing provisions.


 


“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
1.02   Other
Definitions.

 


	

Term


 

	

Defined
in Section


	

“Affiliate
Transaction”                                                                                                 

	

4.06(a)


	

“Change
of Control
Offer”                                                                                                 

	

3.02(a)


	

“Change
of Control
Period”                                                                                                 

	

3.02(d)


	

“incur”                                                                                                 

	

4.04


	
 

	
 


	

“Interest
Payment
Date”                                                                                                 

	

2.04(c)


	

“Maturity
Date”                                                                                                 

	

2.04(b)


	

“Net
Proceeds
Offer”                                                                                                 

	

4.05(b)


	

“Net
Proceeds Offer Trigger
Date”                                                                                                 

	

4.05(B)


	

“Regular
Record
Date”                                                                                                 

	

2.04(c)







 

Section
1.03   Incorporation
by Reference of Trust Indenture Act.

 


This
First Supplemental Indenture is subject to the mandatory provisions
of the TIA, which are incorporated by reference in and made a part
of this First Supplemental Indenture. The following TIA terms have
the following meanings:

 


“Commission”
means the SEC.

 


“indenture
securities” means the Securities.

 


“indenture
security holder” means a Holder.

 


“indenture to
be qualified” means this First Supplemental
Indenture.

 


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

 


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

 


All
other TIA terms used in this First Supplemental Indenture that are
defined by the TIA, defined by TIA reference to another statute or
defined by SEC rules promulgated under the TIA have the meanings
assigned to them by such definitions.

 



ARTICLE II

  





APPLICATION
OF SUPPLEMENTAL INDENTURE

 


AND
CREATION, FORMS, TERMS AND CONDITIONS OF SECURITIES

 

Section
2.01   Application
of this First Supplemental Indenture. Notwithstanding any
other provision of this First Supplemental Indenture, the
provisions of this First Supplemental Indenture, including the
covenants set forth herein, are expressly and solely for the
benefit of the Holders of the Securities. The Securities constitute
a separate series of Securities as provided in Section 2.1 of
the Indenture.

 

Section
2.02   Creation
of the Securities. In accordance with Section 2.1 of the
Indenture, the Company hereby creates the Securities as a separate
series of its Securities issued pursuant to the Indenture. The
Securities shall be issued initially in an aggregate principal
amount of up to $_______.

 

Section
2.03   Form
of the Securities. The Securities shall each be issued in
the form of a Global Security, duly executed by the Company and
authenticated by the Trustee, which shall be deposited with the
Trustee as custodian for DTC and registered in the name of
“Cede & Co.,” as the nominee of DTC. The Securities
shall be substantially in the form of Exhibit A attached hereto. So
long as DTC, or its nominee, is the registered owner of a Global
Security, DTC or its nominee, as the case may be, shall be
considered the sole owner or Holder of the Securities represented
by such Global Security for all purposes under the Indenture and
under such Securities. Ownership of beneficial interests in such
Global Security shall be shown on, and transfers thereof will be
effective only through, records maintained by DTC or its nominee
(with respect to beneficial interests of participants) or by
participants or Persons that hold interests through participants
(with respect to beneficial interests of beneficial owners). The
Securities shall not be issuable in temporary global
form.

 

Section
2.04   Terms
and Conditions of the Securities.

 


The
Securities shall be governed by all the terms and conditions of the
Indenture, as supplemented by this First Supplemental Indenture. In
particular, the following provisions shall be terms of the
Securities:

 

(a) Title and Conditions of the
Securities. The title of the Securities shall be as
specified in the Recitals; and the aggregate principal amount of
the Securities shall be as specified in Section 2.02 of this
Article II, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, the
Securities pursuant to Sections 2.8, 2.9, 2.13, 2.16, 5.7 or 9.5 of
the Indenture.

 

(b) Stated Maturity. The Securities
shall mature, and the principal of the Securities shall be due and
payable in U.S. Dollars to the Holders thereof, together with
all accrued and unpaid interest thereon, on _________ (the
“Maturity
Date”).

 

(c) Payment of Principal and
Interest. The Securities shall bear interest at ____% per
annum, from and including __________, or from the most recent
Interest Payment Date (as defined hereafter) on which interest has
been paid or provided for until the principal thereof becomes due
and payable, and on any overdue principal. Interest shall be
calculated on the basis of a 360-day year comprised of twelve
30-day months. Interest on the Securities shall be payable
quarterly in arrears in U.S. Dollars on January 31, April 30, July
31 and October 31 of each year, commencing on _________ (each such
date, a “Interest
Payment Date” for the purposes of the Securities under
this First Supplemental Indenture). Payments of interest shall be
made to the Person in whose name a Security (or predecessor
Security) is registered (which shall initially be the Depositary)
at the close of business on the January 15, April 15, July 15 and
October 15 (whether or not that date is a Business Day), as the
case may be, immediately preceding such Interest Payment Date (each
such date, a “Regular Record Date” for
the purposes of the Securities under this First Supplemental
Indenture).

 

(d) Registration and Form. The
Securities shall be issuable as registered securities as provided
in Section 2.03 of this Article II. The form of the Securities
shall be as set forth in Exhibit A attached hereto. The
Securities shall be issued and may be transferred only in minimum
denomination of $[*] and integral multiples of $[*] in excess
thereof. All payments of principal, Redemption Price, any purchase
price relating to a Change of Control Offer and accrued unpaid
interest in respect of the Securities shall be made by the Company
as set forth in the Securities.

 

(e) Legal Defeasance and Covenant
Defeasance. The provisions for legal defeasance in Section
8.2 of the Indenture, and the provisions for covenant defeasance in
Section 8.3 of the Indenture, shall be applicable to the
Securities.

 

(f) Further Issuance.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Company may, from time to time, without the consent
of or notice to the Holders, create and issue further securities
having the same interest rate, maturity and other terms (except for
the issue date, the public offering price and the first Interest
Payment Date) as, ranking equally and ratably with, the Securities.
Additional Securities issued in this manner shall be consolidated
with and shall form a single series with the previously outstanding
Securities.

 

(g) Redemption. The Securities are
subject to redemption by the Company in whole or in part in the
manner described herein.

 

(h) Ranking. The Securities will be
the Company’s unsecured and unsubordinated obligations and
will rank equally with all of its current and future unsecured and
unsubordinated indebtedness and senior to all of its current and
future subordinated debt.

 

(i) Sinking Fund. The Securities
are not entitled to any sinking fund.

 

(j) Additional
Amounts. No Additional Amounts shall be payable with respect to the
Securities.

 

(k) Other Terms and Conditions. The
Securities shall have such other terms and conditions as provided
herein.

 



ARTICLE III

  





REDEMPTION
AND REPURCHASE

 

Section
3.01   Optional
Redemption.

 

(a) Prior to _________,
the Securities are subject to redemption, in whole or in part, from
time to time, at the Company’s option at a Redemption Price
equal to the sum of:

 

(i) 100% of the
principal amount of the Securities to be redeemed, and

 




(ii)

the excess, if any,
of (A) the present value at such redemption date of (i) the
redemption price of such Security on _________ (as described in the
immediately succeeding paragraph but excluding accrued and unpaid
interest to the redemption date) plus (ii) all remaining scheduled
interest payments due on the Securities through _________ (but
excluding accrued and unpaid interest 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 plus 50 basis points, over (B) the principal amount of the
Securities on the redemption date.





 


plus,
in either case, accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders on the relevant
record date to receive interest due on the relevant Interest
Payment Date).

 

   
        On and after _________, the
Securities are subject to redemption, in whole or in part, from
time to time, at the Company’s option at the following
redemption prices (expressed as percentages of the principal amount
thereof) if redeemed during the twelve-month period commencing on
July 31 of the year set forth below:

 




	


Year

	


Percentage


	

[*]

	

[*]%


	

[*]

	

[*]%


	

[*]

	

[*]%


	

[*] and
thereafter

	

[*]%;







 


plus
accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment
Date).


 

(b) Redemption Following Equity
Offering. Prior to _________, upon not less than 30 nor more
than 60 days’ written notice, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount
of the Securities at a redemption price equal to [*]% of the
principal amount of the Securities being redeemed plus accrued and
unpaid interest, if any, to, but not including, the redemption date
(subject to the rights of holders of Securities on the relevant
record date to receive interest on the relevant interest payment
date), with the net cash proceeds from one or more Equity
Offerings. The Company may only do this, however, if:

 


(i)           at
least 65% of the aggregate principal amount of the Securities that
were initially issued under the Indenture (excluding Securities
held by the Issuer or any of its Subsidiaries) would remain
outstanding immediately after the occurrence of such proposed
redemption; and


 


(ii)
        the redemption occurs within
180 days after the closing of such Equity Offering.


 


Notice
of any redemption upon any Equity Offering may be given prior to
the completion thereof, and any such redemption or notice may, at
the Company’s discretion, be subject to one or more
conditions precedent, including, but not limited to, completion of
the related Equity Offering.


 

Section
3.02 Repurchase upon Change of Control
Offer.

 

(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 Securities pursuant to the offer described below
(the “Change of
Control Offer”), at a purchase price equal to 101% of
the principal amount thereof plus accrued and unpaid interest
thereon to the 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 Supplemental Indenture applicable to
a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of
Control Offer.

 

(c) The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with
the repurchase of Securities pursuant to a Change of Control Offer.
To the extent that the provisions of any securities laws or
regulations conflict with this Section 3.02, the Company shall
comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this
Section 3.02 by virtue thereof.

 

(d) 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 Securities properly tendered in
response to the Change of Control Offer. Payment for any Securities
so purchased shall be made in the same manner as interest payments
are made.

 

(e) Within 30 days
following any Change of Control, the Company shall send, by first
class mail (or, in the case of Securities held in book-entry form,
by electronic transmission) , 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 Securities 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:

 

(i) 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 3.02 and that,
to the extent lawful, all Securities properly tendered will be
accepted for payment;

 

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

 

(iii) that
any Security not properly tendered or otherwise not accepted for
repurchase will continue to accrue interest;

 

(iv) that,
unless the Company defaults in the payment of the amount due on the
Purchase Date, all Securities or portions thereof accepted for
repurchase pursuant to the Change of Control Offer shall cease to
accrue interest after the Purchase Date;

 

(v) that Holders
electing to have any Securities purchased pursuant to the Change of
Control Offer will be required to tender the Securities, with the
form entitled Option of Holder to Elect Purchase on the reverse of
the Securities 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;

 

(vi) 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 facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Securities delivered for
repurchase, and a statement that such Holder is withdrawing his
election to have the Securities redeemed in whole or in
part;

 

(vii) that
Holders whose Securities are being repurchased only in part will be
issued new Securities equal in principal amount to the portion of
the Securities tendered (or transferred by book-entry transfer)
that is not to be repurchased, which portion must be equal to
$[*]in principal amount or an integral multiple of $[*] in excess
thereof; and

 





(f) 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 Securities 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
thereon to the Purchase Date in respect of all Securities or
portions thereof so tendered and accepted for repurchase and (iii)
deliver or cause to be delivered to the Trustee the Securities so
accepted together with an Officers’ Certificate stating the
aggregate principal amount of Securities 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 Securities so repurchased the amount due in
connection with such Securities, and the Company shall promptly
issue a new Security, and the Trustee, upon written request from
the Company in the form of an Officer’s Certificate shall
authenticate and mail or deliver (or cause to transfer by book
entry) to each relevant Holder a new Security, in a principal
amount equal to any unpurchased portion of the Securities
surrendered to the Holder thereof; provided that each such new Security
shall be in a principal amount of $[*] or an integral multiple of
$[*] 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.

 

(g) 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 in
each case to the Purchase Date, shall be paid to the Person in
whose name a Security 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
3.03 Repurchase upon Application of Net
Proceeds.

 

(a) In the event that,
pursuant to Section 4.05, the Company shall be required to commence
a Net Proceeds Offer, it shall follow the procedures specified in
this Section 3.03.

 

(b) The notice of a Net
Proceeds Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to
the Net Proceeds Offer. Each Net Proceeds Offer will be sent 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 Securities in whole or in part in a
principal amount of $[*] (or integral multiples of $[*] 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 Securities and any such
other pari passu Indebtedness properly tendered in accordance with
this Section 3.03 and Section 4.05. The notice, which shall govern
the terms of the Net Proceeds Offer, shall state:

 

(i) that the Net
Proceeds Offer is being made pursuant to this Section 3.03 and
Section 4.05;

 

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

 

(iii) that
any Security not properly tendered or otherwise not accepted for
repurchase shall continue to accrue interest;

 

(iv) that,
unless the Company defaults in the payment of the amount due on the
Purchase Date, all Securities or portions thereof accepted for
repurchase pursuant to the Net Proceeds Offer shall cease to accrue
interest after the Purchase Date;

 

(v) that Holders
electing to have any Securities repurchased pursuant to any Net
Proceeds Offer shall be required to tender the Securities, with the
form entitled Option of Holder to Elect Purchase on the reverse of
the Securities 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;

 

(vi) 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 expiration time by facsimile transmission a letter
setting forth the name of the Holder, the principal amount of the
Securities delivered for repurchase and a statement that such
Holder is withdrawing his election to have such Securities
repurchased in whole or in part; and

 

(vii) that,
to the extent Holders properly tender Securities (along with any
other pari passu Indebtedness of the Company properly tendered) in
an amount exceeding the Net Proceeds Offer Amount, the tendered
Securities will be purchased pro
rata based on the aggregate amounts of Securities and other
pari passu Indebtedness of the Company properly tendered (and the
Trustee shall select the tendered Securities of tendering Holders
pro rata based on the
amount of Securities 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
Securities 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 Securities properly tendered,
(ii) deposit with the Paying Agent an amount equal to the Purchase
Price, plus accrued
and unpaid interest thereon to the Purchase Date in respect of all
Securities or portions thereof so tendered and accepted for
repurchase and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers’
Certificate stating the aggregate principal amount of Securities 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 Securities so repurchased the
amount due in connection with such Securities, and the Company
shall promptly issue a new Security, and the Trustee, upon written
request from the Company in the form of an Officer’s
Certificate shall authenticate and mail or deliver such new
Security to such Holder, in a principal amount equal to any
unpurchased portion to the Holder thereof; provided that each such new Security
shall be in a principal amount of $[*] or an integral multiple of
$[*] 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 to
the Purchase Date, shall be paid to the Person in whose name a
Security 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.

 

(e) Notwithstanding
anything herein to the contrary, all Securities held in book entry
form shall be tendered and withdrawn in accordance with the
applicable procedures of the Depositary.

 



ARTICLE IV

 





COVENANTS

 


The
covenants set forth in this Article IV shall be applicable to
the Company in addition to the covenants in Article III of the
Indenture, which shall in all respects be applicable in respect of
the Securities.

 

Section
4.01 Reports.

 

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

 

(i) 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

 

(ii) 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).

 


Provided
that, the 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 or under the Indenture (as to which the
Trustee is entitled to rely exclusively on Officers’
Certificates).


 

(b) In addition,
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.

 

Section
4.02 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 (i), (ii), (iii) and (iv) below being referred to
as a “Restricted
Payment”):

 

(i) 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;

 

(ii) 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);

 

(iii) 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

 

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

 


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

 

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

 

(b) the Company is not
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.04(a);
or

 

(c) 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:

 




(i)

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 ___________ to the date the Restricted Payment occurs (the
“Reference
Date”) (treating such period as a single accounting
period); plus





 




(ii)

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 ___________ 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





 




(iii)

without duplication
of any amounts included in clause (c)(ii) 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 ___________ and on or
prior to the Reference Date; plus





 




(iv)

without
duplication, the sum of:





 



(A) 

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






 



(B) 

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






 



(C) 

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






 



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

 

(b) Notwithstanding the
foregoing, the provisions of paragraph (a) of this Section 4.02 do
not prohibit:

 

(i) 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;

 

(ii) the
redemption, repurchase, purchase, retirement, defeasance or other
acquisition of any shares of Capital Stock of the Company, either
(A) solely in exchange for shares of Qualified Capital Stock of the
Company or (B) 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, provided that such net proceeds are not included in
the calculation described in clause (c) of the preceding
paragraph;

 

(iii) the
redemption, repurchase, retirement, defeasance or other acquisition
of any Subordinated Indebtedness either (A) solely in exchange for
shares of Qualified Capital Stock of the Company, or (B) through
the application of net proceeds of a substantially concurrent sale
for cash (other than to a Restricted Subsidiary of the Company) of
(I) shares of Qualified Capital Stock of the Company or (II)
Refinancing Indebtedness provided that such net proceeds are not
included in the calculation described in clause (c) of the
preceding paragraph;

 

(iv) 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) $250,000 plus (y)
$100,000 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 $250,000 in any calendar
year;

 

(v) so long as no
Default or Event of Default shall have occurred and be continuing,
Restricted Payments in an aggregate amount not to exceed $6.0
million;

 

(vi) repurchases
of Qualified Capital Stock deemed to occur upon the exercise of
stock options, warrants or other convertible or exchangeable
securities to the extent such Qualified Capital Stock represents a
portion of the exercise price of those stock options, warrants or
other convertible or exchangeable securities;

 

(vii) 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;

 

(viii) the
repurchase of Capital Stock deemed to occur upon the exercise of
stock options to the extent such Capital Stock represents a portion
of the exercise price of those stock options;

 

(ix) payments
of cash in lieu of issuing fractional shares upon (i) the
exercise of options or warrants or (ii) the exchange or
conversion of Qualified Capital Stock of any such Person;
and

 

(x) the declaration and
payment of dividends to holders of any class or series of
Disqualified Capital Stock of the Company or any Preferred Stock of
any Restricted Subsidiary incurred in accordance with the Section
4.04.

 


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 (c) of
Section 4.02(a), amounts expended pursuant to clauses (i), (ii)(B),
(iii)(B)(II) and (iv) shall be included in such
calculation.

 

Section
4.03 Limitation on Dividend and Other
Payment Restrictions Affecting Restricted
Subsidiaries.

 


(a)   
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:

 

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

 

(ii) 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

 

(iii) 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:

 

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

 

(c) the Indenture and
the Securities;

 

(d) the Credit
Agreement;

 

(e) customary
non-assignment and similar provisions of any contract, lease or
license entered into in the ordinary course of
business;

 

(f) 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;

 

(g) agreements existing
on the Issue Date and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of
those agreements to the extent and in the manner such agreements
are in effect on the Issue Date; provided that the amendments,
restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment
restrictions than those contained in those agreements on the Issue
Date (as determined in good faith by the Board of Directors of the
Company);

 

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

 

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

 

(j) Permitted Purchase
Money Indebtedness and mortgage financings for property acquired in
the ordinary course of business and Capitalized Lease Obligations
that only impose restrictions on the property so
acquired;

 

(k) any agreement
pursuant to which Indebtedness was issued if (i) 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, (ii)(A) the encumbrance or restriction is not
materially more disadvantageous to the holders of the Securities
than is customary in comparable financings (as determined by the
Company) and (B) the Company determines that any such encumbrance
or restriction will not materially affect its ability to make
principal or interest payments on the Securities;

 

(l) Indebtedness
permitted to be incurred subsequent to the date of the Indenture
pursuant to Section 4.04; 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;

 

(m) customary
provisions in joint venture agreements, Sale and Leaseback
Transactions 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 Company’s Board of
Directors 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
4.04 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 may incur Indebtedness (including, without
limitation, 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 Restricted Subsidiary 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 Restricted Subsidiary, 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 Securities to the same extent and in the same manner as such
Indebtedness is subordinated to other Indebtedness of the Company
or such Restricted Subsidiary, as the case may be.

 

Section
4.05 Limitation on Asset
Sales.

 

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

 

(i) 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);

 

(ii) 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 Securities) that are assumed by the
transferee of any such assets;





 



(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;
and





 



(C) 

any of the assets
described in clauses (iii)(B) and (C)





 


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

 

(iii) 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,
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
(iii)(A) through (iii)(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 $5.0 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
Securities (and Pari Passu Debt) equal to the Net Proceeds Offer
Amount at a price equal to 100% of the principal amount of the
Securities (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) 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 Article V
hereof, 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.

 

(d) 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
Securities in whole or in part in a principal amount of $[*] and
integral multiples of $[*] in excess thereof in exchange for cash.
To the extent Holders properly tender Securities in an amount
exceeding the Net Proceeds Offer Amount, Securities 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.

 

(e) 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 Securities pursuant to a Net Proceeds Offer. To
the extent that the provisions of any securities laws or
regulations conflict with this Section 4.05 or Section 3.03, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under this Section 4.05 or Section 3.03 by virtue
thereof.

 

Section
4.06 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 (as determined in good faith by the Board of
Directors of the Company).

 

(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
$1.0 million must be approved by the Company’s Board of
Directors 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 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 $2.5 million,
the Company or such Restricted Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a written opinion
stating that the Affiliate Transaction or series of related
Affiliate Transactions is (i) fair to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point
of view, from an Independent Financial Advisor or (ii) on terms not
less favorable than might have been obtained in a comparable
transaction at such time on an arm’s length basis from a
Person who is not an Affiliate, and file the same with the
Trustee.

 

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

 

(i) 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;

 

(ii) 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;

 

(iii) 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;

 

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

 

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

 

Section
4.07 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:

 

(a) in the case of
Liens securing Subordinated Indebtedness or the Securities, 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

 

(b) in all other cases,
the Securities are equally and ratably secured,

 


except
for:

 

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

 

(ii) 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”;

 

(iii) Liens
securing the Securities or any guarantee thereof;

 

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

 

(v) 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;

 

(vi) Liens
securing Indebtedness (including Liens securing any Obligations in
respect thereof) consisting of Indebtedness incurred in compliance
with Section 4.04, 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

 

(vii) Permitted
Liens.

 

Section
4.08 Limitation on Subsidiary Guarantees of
Company Indebtedness. The Company shall not permit any
Restricted Subsidiary, directly or indirectly, to guarantee any
Indebtedness of the Company (other than the Securities) unless such
Restricted Subsidiary executes and delivers to the Trustee a
supplemental indenture providing for the guarantee of the
Securities by such Subsidiary, which guarantee of the Securities
will rank equally in right of payment with such Subsidiary’s
guarantee of the Company Indebtedness (unless the Company
Indebtedness is subordinated in right of payment to the Securities,
in which case the guarantee of the Indebtedness of the Company
shall be subordinated to the guarantee of the Securities to the
same extent as the Indebtedness of the Company is subordinated to
the Securities). Any guarantee of the Securities provided pursuant
to this Section 4.08 will be automatically released when the
Indebtedness is no longer outstanding or the guarantee of the
Indebtedness is released or terminated, in each case, other than as
a result of a payment thereon by the Restricted
Subsidiary.

 

Section
4.09 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 Securities
for or as an inducement to any consent, waiver or amendment of any
of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid and is paid to all
Holders of the Securities 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
4.10 Limitation on Preferred Stock of
Restricted Subsidiaries.

 


The
Company will not permit any Restricted Subsidiary to issue any
Preferred Stock other than Preferred Stock issued to the Company or
a Wholly Owned Restricted Subsidiary. The Company will not sell,
transfer or otherwise dispose of Preferred Stock issued by a
Restricted Subsidiary or permit a Restricted Subsidiary to sell,
transfer or otherwise dispose of Preferred Stock issued by a
Restricted Subsidiary, other than to the Company or a Wholly Owned
Restricted Subsidiary. Notwithstanding the foregoing, nothing in
this Section 4.10 will prohibit Preferred Stock issued by a Person
prior to the time:


 



(A)            

such person becomes
a Restricted Subsidiary;






 



(B)            

such person merges
with or into a Restricted Subsidiary; or






 



(C)            

a Restricted
Subsidiary merges with or into such person;






 



provided, however, that such Preferred Stock was not issued
or incurred by such person in anticipation of a transaction
contemplated by subclause (B) or (C) above.


 

Section
4.11 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.

 



ARTICLE V

  





SUCCESSORS

 

Section
5.01 Merger, Consolidation and Sale of
Assets. Section 4.1 of the Indenture shall be deleted in its
entirety and replaced with the following:

 

(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:

 

(i) 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 Securities and the
performance of every covenant of the Securities and this Indenture
on the part of the Company to be performed or
observed;





 

(ii) immediately
after giving effect to such transaction and the assumption
contemplated by clause (i)(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..04(a) or (y) the Consolidated Fixed Charge
Coverage Ratio of the Company would be no less than such ratio
immediately prior to such transaction;

 

(iii) immediately
before and immediately after giving effect to such transaction and
the assumption contemplated by clause (i)(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

 

(iv) the
Company or the Surviving Entity shall have delivered to the Trustee
an Officer’s 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 and
constitutes the legal, valid and binding obligation of the Company
or the Surviving Entity, enforceable against it in accordance with
its terms.

 


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 (i), (ii) and (iii) 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.

 


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 (iv) of Section 5.1(a).

 

Section
5.02 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 and the
Securities 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 Securities
and the Security Documents and agrees in writing to be bound hereby
and thereby, the predecessor shall be released from such
obligations.

 



ARTICLE VI

 


[RESERVED]


 

 



ARTICLE VII

 





MISCELLANEOUS

 

Section
7.01   Ratification
of Indenture.

 


This
First Supplemental Indenture is executed and shall be constructed
as an indenture supplement to the Indenture, and as supplemented
and modified hereby, the Indenture is in all respects ratified and
confirmed, and the Indenture and this First Supplemental Indenture
shall be read, taken and constructed as one and the same
instrument.

 

Section
7.02   Trust
Indenture Act Controls.

 


If any
provision of this First Supplemental Indenture limits, qualifies or
conflicts with another provision that is required or deemed to be
included in this First Supplemental Indenture by the TIA, the
required or deemed provision shall control.

 

Section
7.03   Notices.

 


All
notices and other communications shall be given as provided in the
Indenture; provided that
notices to a Guarantor shall be given to such Guarantor in care of
the Company.

 

Section
7.04   Governing
Law.

 


THIS
THIRD SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE COMPANY, THE TRUSTEE AND THE HOLDERS HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE,
THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section
7.05   Successors.

 


All
agreements of the Company in this Third Supplemental Indenture and
the Securities shall bind their successors. All agreements of the
Trustee in this Third Supplemental Indenture shall bind its
successors.

 

Section
7.06   Multiple
Originals.

 


The
parties may sign any number of copies of this Third Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to
prove this Third Supplemental Indenture. The exchange of copies of
this Third Supplemental Indenture and of signature pages by
facsimile or PDF transmission shall constitute effective execution
and delivery of this Third Supplemental Indenture as to the parties
hereto and may be used in lieu of the original Third Supplemental
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
7.07   Headings.

 


The
headings of the Articles and Sections of this Third Supplemental
Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.

 

Section
7.08   Trustee
Not Responsible for Recitals

 


The
Trustee accepts the amendments of the Indenture effected by this
Supplemental Indenture, but on the terms and conditions set forth
in the Indenture, including the terms and provisions defining and
limiting the liabilities and responsibilities of the Trustee.
Without limiting the generality of the foregoing, the recitals
contained herein shall be taken as statements of the Company, and
the Trustee does not assume any responsibility for their
correctness. The Trustee makes no representations as to (i) the
validity or sufficiency of this Supplemental Indenture or any of
the terms or provisions hereof, (ii) the proper authorization
hereof by the Company by action or otherwise, (iii) the due
execution hereof by the Company or (iv) the consequences of any
amendment herein provided for, and the Trustee makes no
representation with respect to any such matters, except that the
Trustee represents that it is duly authorized to execute and
deliver this Third Supplemental Indenture and perform its
obligations hereunder.

 




Section 7.09
Binder Nature of Supplemental
Indenture.

 


The
Company hereby represents and warrants that this Third Supplemental
Indenture is its legal, valid and binding obligation, enforceable
against it in accordance with its terms.


 




 








 






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


 


	
 

	
 

	
 

	
 


	
 

	


COMPANY:


 


GENERAL
FINANCE CORPORATION


 


 


	
 

	


By:  

	


/s/ Charles E. Barrantes


	
 

	


Name: 

	


Charles E. Barrantes


	
 

	


Title:

	

Executive
Vice President & Chief Financial Officer


	
 

	
 

	
 






 




 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






 







  
Signature page to the Third Supplemental
Indenture








 






	
 

	
 

	
 

	
 


	
 

	


TRUSTEE:


 


___________________,
as Trustee


 


 


	
 

	


By:  

	
 


	
 

	


Name: 

	
 


	
 

	


Title:

	
 


	
 

	
 

	
 







 




 


 


 


 


 


 


 


 


 









 


 


 


 


 


 


 


 


 


 


 


 











Signature
page to the Third Supplemental Indenture


 








 







SCHEDULE I

 


 

 



EXHIBIT A

 



FORM OF NOTE

 


 


THIS
NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


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


 


CUSIP
NO.


 


 


GENERAL
FINANCE CORPORATION


 


●%
SENIOR NOTE DUE ___


 



$●                                                                                                                      

No.:
R-1






 


GENERAL
FINANCE CORPORATION, a Delaware corporation (herein called the
“Company”), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of
_______ MILLION DOLLARS or such other
principal amount as shall be set forth on Schedule I hereto
on June ●, ___ and to pay interest thereon at the rate of
●% per annum from and including ●, ____, or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, on January 31. April 30, July 31 and October
31 of each year, commencing on July 31, ____ (each, an
“Interest Payment Date”), until the principal hereof is
paid or made available for payment.


 


The
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, except as provided in the Indenture
hereinafter referred to, be paid to the Person in whose name this
Security (or one or more predecessor Securities) is registered at
the close of business on the regular record date for such interest,
which will be the January 15, April 15, July 15 and October 15
(whether or not that date is a Business Day), as the case may be
(each, a “Regular Record Date”), immediately preceding
each Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and either may be paid to
the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice whereof shall be given to the Holders not
less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully
provided in the Indenture. Payment of the principal of and interest
on this Security (including, without limitation, any Redemption
Price, Special Mandatory Redemption Price or purchase price
relating to a Change of Control Offer) will be made at the office
or agency of the Company maintained for that purpose pursuant to
the Indenture (initially the Corporate Trust Office of the
Trustee), in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts; provided,
however, that payment of interest may be made at the option
of the Company (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Securities Register.
Payments of principal and interest at maturity will be made against
presentation of this Security at the Corporate Trust Office (or
such other office as may be established pursuant to the Indenture),
by check or wire transfer.


 


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


 


Unless
the Certificate of Authentication hereon has been executed by the
Trustee or an authenticating agent under the Indenture referred to
on the reverse hereof by the manual signature of one of its
authorized signatories, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.


 



[Signature Pages Follow]


 




 








 






IN
WITNESS WHEREOF, the Company has caused this Security to be to be
duly executed as of the date set forth below.


 


	
 

	
 

	
 

	
 


	
 

	

GENERAL
FINANCE CORPORATION


 


 


	
 

	


By:  

	
 


	
 

	


Name: 

	
 


	
 

	


Title:

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	


By:  

	
 


	
 

	


Name: 

	
 


	
 

	


Title:

	
 







 









 


 


 




 








 






 


Trustee’s
Certificate of Authentication


 


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


 


Dated:
June 18, 2014


 


	
 

	
 

	
 

	
 


	
 

	

WELLS
FARGO BANK, NATIONAL ASSOCIATION,


as
Trustee


 


 


	
 

	


By:  

	
 


	
 

	
 

	


Its Authorized Signatory


	
 

	
 

	
 







 






 








 






 


(Reverse
of Security)


 


GENERAL
FINANCE CORPORATION


 


●%
SENIOR NOTE DUE ____


 


 


1.           This
Security is one of a duly authorized issue of securities of the
Company designated as its ●% Senior Notes due ____ (the
“Securities”) limited in aggregate principal amount to
$● issued and to be issued under an indenture, dated as of
_____ ●, ____, between the Company and Wells Fargo Bank,
National Association, as trustee (herein called the
“Trustee,” which term includes any successor Trustee
under the Indenture), and the first supplemental indenture, dated
as of _____ ●, ____ (the “Base Indenture,” as so
supplemented and as it may be further supplemented or amended from
time to time, is herein referred to as the
“Indenture”), between the Company and the Trustee.
Reference is hereby made to the Indenture for a statement of the
respective rights thereunder of the Company, the Trustee and the
Holders of the Securities, and the terms upon which the Securities
are, and are to be, authenticated and delivered. The indebtedness
of the Company evidenced by the Securities, including the principal
thereof and interest thereon (including post-default interest),
will constitute unsecured and unsubordinated indebtedness of the
Company and will rank equally in right of payment with all of the
Company's current and future unsecured and unsubordinated
indebtedness.




2.           The
Securities are subject to redemption, in whole or in part, from
time to time, at the Company’s option at the Redemption
Prices set forth in the Indenture.




3.           Upon
the occurrence of a Change of Control Triggering Event, unless the
Company has given written notice with respect to a redemption of
the Securities pursuant to paragraph 2 of this Security, each
Holder of Securities will have the right to require the Company to
purchase all or a portion of such Holder’s Securities
pursuant to the Change of Control Offer, at a purchase price equal
to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.


 


4.           When
the Net Cash Proceeds from Asset Sales not applied or invested as
provided in the Indenture total $5.0 million or more, the Company
will be required to make an offer to purchase an amount of
Securities (and Pari Passu Debt) equal to the Net Proceeds Offer
Amount at a price equal to 100% of the principal amount of the
Securities (and Pari Passu Debt) to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of
purchase.


 


5.           If
an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due
and payable in the manner and with the effect provided in the
Indenture.


 


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


 


7.           No
reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, places and
rate, and in the coin or currency, herein prescribed.


 


8.           As
provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security may be registered
on the Securities Register of the Company, upon surrender of this
Security for registration of transfer at the Corporate Trust
Office, duly endorsed by, or accompanied by a written instruction
of transfer in form satisfactory to the Company, and duly executed
by the Holder hereof or such Holder’s attorney, duly
authorized in writing, on which instruction the Company can rely,
and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.


 


9.           The
Securities are issuable only in fully registered form, without
coupons, in minimum denominations of $[*] or any amount in excess
thereof which is an integral multiple of $[*]. As provided in the
Indenture, and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal
amount of Securities in authorized denominations, as requested by
the Holder surrendering the same.


 


10.           No
service charge shall be made to the Holder for any such
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.


 


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


 


12.           Interest
on the Securities shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.


 


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


 


14.           No
past, present or future director, manager, officer, employee,
incorporator, member, partner, stockholder or other owner of
Capital Stock of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or of the
Guarantors under the Securities, the Indenture, the Securities
Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of
the Securities. The waiver and release may not be effective to
waive or release liabilities under the federal securities
laws. 


 


15.           This
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.


 


16.           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), CUT (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


17.           Each
Holder of this Security covenants and agrees by such Holder’s
acceptance thereof to comply with and be bound by the foregoing
provisions.


 


18.           THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE AND
THE HOLDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
NOTE.

 


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


 


 




 








 







ASSIGNMENT FORM


 


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


 


PLEASE
INSERT SOCIAL SECURITY OR


OTHER
IDENTIFYING NUMBER OF ASSIGNEE


 


	
 

 

	
 







PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE

 


______________________________________

 


______________________________________

 


______________________________________

 


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

 



Dated:                     

__________________________





 


Signature:
____________________________

 


NOTICE:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.


 


 


Signature
Guarantee:


 


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.


 




 








 







OPTION OF HOLDER TO ELECT PURCHASE


 


If you
want to elect to have this Security purchased by the Issuer
pursuant to Section 3.02 or Section 4.05 of the Supplemental
Indenture, check the appropriate box:




	
 

	
 

	

Section
3.02

	
 

	

[ ]
Change of Control Offer

	
 

	
 


	
 

	
 

	

Section
4.05

	
 

	

[ ] Net
proceeds Offer

	
 

	
 







 


If you
want to elect to have only part of this Security purchased by the
Company pursuant to Section 3.02 or Section 4.05 of the
Supplemental Indenture, state the amount you elect to have
purchased:


 


$


 



Dated:                                                                                      

________________________________________






NOTICE:
The signature on this assignment must correspond with the name as
it appears upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever and be
guaranteed.


 


Signature
Guarantee:




 








 






Schedule
I

 



SCHEDULE OF TRANSFERS AND EXCHANGES

 


The
following increases or decreases in principal amount of this Global
Security have been made:


 


	

Date of
Exchange

	
 

	

Amount
of Decrease in Principal Amount of this Global
Security

	
 

	

Amount
of Increase in Principal Amount of this Global
Security

	
 

	

Principal
Amount of this Global Security following such Decrease or
Increase

	
 

	

Signature
of Authorized Signatory of trustee or Custodian