UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934


Date of Report (Date of earliest event reported):  October 15, 2010

Tutor Perini Corporation
(Exact name of registrant as specified in its charter)
____________________


Massachusetts
(State or other jurisdiction of
incorporation or organization)
1-6314
(Commission file number)
04-1717070
(I.R.S. Employer
Identification No.)

15901 Olden Street, Sylmar, California  91342-1093
(Address of principal executive offices) (Zip code)


Registrant’s telephone number, including area code:    (818) 362-8391


None
 (Former name or former address, if changed since last report)

____________________



Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

   o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

   o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

   o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

   o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))





 
 
 

Item 1.01                      Entry into a Material Definitive Agreement
 

 
Offering of Senior Notes

On October 15, 2010, Tutor Perini Corporation (the “Company”), entered into a Purchase Agreement (the “Purchase Agreement”) filed as exhibit 10.1 hereto and incorporated by reference herein, by and among the Company, certain subsidiary guarantors named therein (the “Guarantors”), and Deutsche Bank Securities Inc. (the “Representative”), as representative of the several initial purchasers, relating to the issuance and sale of $300,000,000 in aggregate principal amount of its 7.625% senior unsecured notes due November 1, 2018 (the “Notes”). The Notes were priced at 99.258% of par.
 
The Notes are being offered to the initial purchasers as a private placement and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”). The initial purchasers intend to sell the Notes only to qualified institutional buyers under Rule 144A and to persons outside the United States under Regulation S of the Securities Act. 
 
The Purchase Agreement contains customary representations, warranties, agreements, indemnification obligations, including for liabilities under the Securities Act, other obligations and termination provisions of the Company, certain of its subsidiaries and the initial purchasers.
 

Indenture Relating to 7.625% Senior Notes due 2018

On October 20, 2010, the Company completed the private placement of the $300,000,000 Notes from several initial purchasers. The initial purchasers subsequently sold the Notes to qualified institutional buyers under Rule 144A and to persons outside the United States under Regulation S of the Securities Act. The private placement of the Notes resulted in proceeds to the Company of approximately $293.2 million. The Notes were issued pursuant to an indenture (the “Indenture”), dated as of October 20, 2010 by and among the Company, the Guarantors and Wilmington Trust FSB, as trustee (the “Trustee”), filed as Exhibit 4.1 hereto and incorporated by reference herein.
 
The Notes will mature on November 1, 2018, and bear interest at a rate of 7.625% per annum, payable semi-annually in cash in arrears on May 1 and November 1 of each year, beginning on May 1, 2011.  The Notes are senior unsecured obligations of the Company and will be guaranteed by each of the Guarantors.
 
The terms of the Indenture will, among other things, limit the ability of the Company and its restricted subsidiaries to (i) incur additional indebtedness or issue certain preferred stock; (ii) pay dividends on, or make distributions in respect of, their capital stock or repurchase their capital stock; (iii) make certain investments or other restricted payments; (iv) sell certain assets; (v) create liens or use assets as security in other transactions; (vi) merge, consolidate or transfer or dispose of substantially all of their assets; and (vii) engage in certain transactions with affiliates.  These covenants are subject to a number of important limitations and exceptions that are described in the Indenture.
 
The Notes will be redeemable, in whole or in part, on any time on or after November 1, 2014, at the redemption prices specified in the Indenture, together with accrued and unpaid interest, if any, to the redemption date.  At any time prior to November 1, 2013, the Company may redeem up to 35% of the aggregate principal amount of the Notes with the net cash proceeds from certain

 
 
 
equity offerings at a redemption price equal to 107.625% of the principal amount thereof, together with accrued and unpaid interest, if any, to the redemption date.  In addition, at any time prior to November 1, 2014, the Company may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes so redeemed, plus a “make whole” premium, together with accrued and unpaid interest, if any, to the redemption date.
 
Upon the occurrence of a change of control triggering event specified in the Indenture, the Company must offer to purchase the Notes at a redemption price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase.
 
The Indenture provides for customary events of default (subject in certain cases to customary grace and cure periods), which include nonpayment, breach of covenants in the Indenture, payment defaults or acceleration of other indebtedness, a failure to pay certain judgments and certain events of bankruptcy and insolvency. If an event of default occurs and is continuing, the trustee or holders of at least 25% in principal amount of the outstanding Notes may declare the principal, accrued and unpaid interest, if any, on all the Notes to be due and payable.  These events of default are subject to a number of important qualifications, limitations and exceptions that are described in the Indenture.
 

Registration Rights Agreement

On October 20, 2010, in connection with the private placement of the Notes, the Company, the Guarantors and the initial purchasers of the Notes entered into a Registration Rights Agreement (the “Registration Rights Agreement”), filed as Exhibit 4.2 hereto and incorporated by reference herein.  The terms of the Registration Rights Agreement require the Company and the Guarantors to (i) use their commercially reasonable efforts to file with the Securities and Exchange Commission and cause to become effective within 365 days after the date of the initial issuance of the Notes, a registration statement with respect to an offer to exchange the Notes for a new issue of debt securities registered under the Securities Act (the “Exchange Offer”), with terms substantially identical to those of the Notes, (except for provisions relating to the transfer restrictions and payment of additional interest); (ii) keep the Exchange Offer open for at least 30 business days (or longer if required by applicable law); and (iii) in certain circumstances, file a shelf registration statement for the resale of the Notes.  If the Company and the Guarantors fail to satisfy their registration obligations under the Registration Rights Agreement, then the Company will be required to pay additional interest to the holders of the Notes, up to a maximum additional interest rate of 1.00% per annum.
 

Amendment to the Company’s Third Amended and Restated Credit Agreement

On October 4, 2010, the Company entered into a Third Amendment (the “Amendment”), filed as Exhibit 10.2 hereto and incorporated by reference herein, to the Company’s Third Amended and Restated Credit Agreement dated September 8, 2008, as amended by a Joinder Agreement dated February 13, 2009, a First Amendment dated February 23, 2009 and a Second Amendment dated January 13, 2010 (collectively, the “Existing Agreement”). The Amendment became effective on October 20, 2010 (the “Third Amendment Effective Date”), upon the issuance of the Notes under the Indenture.
 
The Amendment provides for, among other things, (i) the permitted incurrence of additional senior unsecured indebtedness up to $300 million under the Notes, (ii) the permitted incurrence
 
 
 
 
of indebtedness under any preferred stock issued by the Company that provides for no mandatory cash payments, and no mandatory redemption or put rights until a date that is six months or more after the maturity date of the Existing Agreement, (iii) modifications to certain covenants to permit the Company’s consummation of the issuance of the Notes, and (iv) certain  other modifications to the Company’s financial covenants and certain other covenants.
 
 
Item 2.03                      Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
 
The information in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.03 by reference.
 

 
Item 7.01                      Regulation FD Disclosure
 
On October 18, 2010, the Company announced that it had priced a previously announced offering of $300 million of senior unsecured notes.  A copy of the press release is being furnished as Exhibit 99.1 hereto.
 

 
Item 9.01                      Financial Statements and Exhibits

(d)            Exhibits

 
4.1
Indenture, dated October 20, 2010, by and among the Company, certain subsidiary guarantors named therein and Wilmington Trust FSB, as trustee.

 
4.2
Registration Rights Agreement, dated October 20, 2010, by and among the Company, certain subsidiary guarantors named therein and the initial purchasers named therein.

 
10.1
Purchase Agreement, dated October 15, 2010, by and among the Company, certain subsidiary guarantors named therein and Deutsche Bank Securities Inc., as representatives of the several initial purchasers.
 
 
 
10.2
The Third Amendment to the Third Amended and Restated Credit Agreement dated October 4, 2010, effective October 20, 2010.  
 
 
99.1
Press release dated October 18, 2010.


 
 
 

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 
 
 
Dated:  October 21, 2010
Tutor Perini Corporation
 
 
By:   /s/Kenneth R. Burk
 
        Kenneth R. Burk
        Executive Vice President and Chief Financial Officer




 
EXHIBIT 4.1
 
EXECUTION VERSION



 

 

TUTOR PERINI CORPORATION,
as Issuer
 
THE GUARANTORS PARTY HERETO, as Guarantors
 
AND
 
WILMINGTON TRUST FSB
as Trustee
 

 

7⅝% SENIOR NOTES DUE 2018
 
INDENTURE DATED AS OF
 
October 20, 2010
 

 

 



 
 
 

TABLE OF CONTENTS
Page
 
ARTICLE 1
 
DEFINITIONS AND INCORPORATION BY REFERENCE
 
SECTION 1.01.
Definitions
1
SECTION 1.02.
Other Definitions
27
SECTION 1.03.
Incorporation by Reference of Trust Indenture Act
28
SECTION 1.04.
Rules of Construction
28

ARTICLE 2
 
   
THE NOTES
 
     
SECTION 2.01.
Form and Dating
29
SECTION 2.02.
Execution and Authentication
30
SECTION 2.03.
Registrar; Paying Agent
31
SECTION 2.04.
Paying Agent to Hold Money in Trust
31
SECTION 2.05.
Holder Lists
31
SECTION 2.06.
Book-Entry Provisions for Global Securities
32
SECTION 2.07.
Replacement Notes
35
SECTION 2.08.
Outstanding Notes
35
SECTION 2.09.
Treasury Notes
35
SECTION 2.10.
Temporary Notes
36
SECTION 2.11.
Cancellation
36
SECTION 2.12.
Defaulted Interest
36
SECTION 2.13.
Record Date
36
SECTION 2.14.
Computation of Interest
36
SECTION 2.15.
CUSIP Number
36
SECTION 2.16.
Special Transfer Provisions
37
SECTION 2.17.
Issuance of Additional Notes
38
   
ARTICLE 3
 
     
REDEMPTION AND PREPAYMENT
 
     
SECTION 3.01.
Notices to Trustee
39
SECTION 3.02.
Selection of Notes to be Redeemed
39
SECTION 3.03.
Notice of Redemption
39
SECTION 3.04.
Effect of Notice of Redemption
40
SECTION 3.05.
Deposit of Redemption Price
40
SECTION 3.06.
Notes Redeemed in Part
40
SECTION 3.07.
Optional Redemption
40
SECTION 3.08.
Mandatory Redemption
41
SECTION 3.09.
Offer to Purchase
41
 
 
-i-
 
    Page
ARTICLE 4
 
     
COVENANTS
 
     
SECTION 4.01.
Payment of Notes
43
SECTION 4.02.
Maintenance of Office or Agency
43
SECTION 4.03.
Reports
44
SECTION 4.04.
Compliance Certificate
44
SECTION 4.05.
Restricted Payments
45
SECTION 4.06.
Dividend and Other Payment Restrictions Affecting Subsidiaries
48
SECTION 4.07.
Incurrence of Indebtedness
49
SECTION 4.08.
Limitation on Asset Sales
52
SECTION 4.09.
Affiliate Transactions
54
SECTION 4.10.
Liens
56
SECTION 4.11.
Offer to Repurchase Upon Change of Control
56
SECTION 4.12.
Corporate Existence
56
SECTION 4.13.
Additional Guarantors
56
SECTION 4.14.
Suspension of Covenants
57
SECTION 4.15.
Conduct of Business
57
ARTICLE 5
 
     
SUCCESSORS
 
SECTION 5.01.
Merger, Consolidation, or Sale of Assets
58
SECTION 5.02.
Successor Corporation Substituted
59
ARTICLE 6
 
     
DEFAULTS AND REMEDIES
 
SECTION 6.01.
Events of  Default
59
SECTION 6.02.
Acceleration
61
SECTION 6.03.
Other Remedies
62
SECTION 6.04.
Waiver of Past Defaults
62
SECTION 6.05.
Control by Majority
62
SECTION 6.06.
Limitation on Suits
62
SECTION 6.07.
Rights of Holders of Notes to Receive Payment
63
SECTION 6.08.
Collection Suit by Trustee
63
SECTION 6.09.
Trustee May File Proofs of Claim
63
SECTION 6.10.
Priorities
63
SECTION 6.11.
Undertaking for Costs
64
     
ARTICLE 7
 
TRUSTEE
 
SECTION 7.01.
Duties of Trustee
64
SECTION 7.02.
Rights of Trustee
65
SECTION 7.03.
Individual Rights of Trustee
66
SECTION 7.04.
Trustee’s Disclaimer
66
 
 
-ii-
 
      Page
     
SECTION 7.05.
Notice of Defaults
67
SECTION 7.06.
Compensation and Indemnity
67
SECTION 7.07.
Replacement of Trustee
68
SECTION 7.08.
Successor Trustee by Merger, Etc
69
SECTION 7.09.
Eligibility; Disqualification.
69
SECTION 7.10.
Trustee’s Application for Instructions from the Issuer
69
SECTION 7.11.
Limitation of Liability
69
ARTICLE 8
 
     
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
 
   
SECTION 8.01.
Option to Effect Legal Defeasance or Covenant Defeasance
69
SECTION 8.02.
Legal Defeasance and Discharge
70
SECTION 8.03.
Covenant Defeasance
70
SECTION 8.04.
Conditions to Legal or Covenant Defeasance
70
SECTION 8.05.
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
72
SECTION 8.06.
Repayment to Issuer
72
SECTION 8.07.
Reinstatement
72
SECTION 8.08.
Discharge
73
   
ARTICLE 9
 
     
AMENDMENT, SUPPLEMENT AND WAIVER
 
   
SECTION 9.01.
Without Consent of Holder
73
SECTION 9.02.
Supplemental Indentures with Consent of Holders
74
SECTION 9.03.
Compliance with Trust Indenture Act
74
SECTION 9.04.
Revocation and Effect of Consents
75
SECTION 9.05.
Trustee to Sign Amendments
75
   
ARTICLE 10
 
     
GUARANTEES
 
   
SECTION 10.01.
Guarantees
75
SECTION 10.02.
Execution and Delivery of Guarantee
76
SECTION 10.03.
Limitation on Liability
77
SECTION 10.04.
Successors and Assigns
77
SECTION 10.05.
No Waiver
77
SECTION 10.06.
Release of Guarantor
77
SECTION 10.07.
Contribution
78
   
ARTICLE 11
 
     
MISCELLANEOUS
 
   
SECTION 11.01.
Notices
78
SECTION 11.02.
Certificate and Opinion as to Conditions Precedent
80
SECTION 11.03.
Statements Required in Certificate or Opinion
80
 
 
-iii-
 
     
      Page
SECTION 11.04.
Rules by Trustee and Agents
80
SECTION 11.05.
No Personal Liability of Directors, Officers, Employees and Stockholders
80
SECTION 11.06.
Governing Law
80
SECTION 11.07.
No Adverse Interpretation of Other Agreements
81
SECTION 11.08.
Successors
81
SECTION 11.09.
Severability
81
SECTION 11.10.
Counterpart Originals
81
SECTION 11.11.
Table of Contents, Headings, Etc
81
SECTION 11.12.
Force Majeure
81
SECTION 11.13.
Note Purchases by Issuer and Affiliates
81

 
-iv- 
 

TUTOR PERINI CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF OCTOBER 20, 2010
 


Section of
 
Section(s) of
Trust Indenture
 
Indenture
Act of 1939
   
§ 310
(a)(1)
7.10
 
(a)(2)
7.10
 
(a)(3)
N.A.
 
(a)(4)
N.A.
 
(a)(5)
7.10
 
(b)
7.08, 7.10
 
(c)
N.A.
§ 311
(a)
7.11
 
(b)
7.11
 
(c)
N.A.
§ 312
(a)
2.05
 
(b)
2.05
 
(c)
2.05
§ 313
(a)
7.06
 
(b)(1)
N.A.
 
(b)(2)
7.06, 7.07
 
(c)
7.06, 11.01
 
(d)
7.06, 11.01
§ 314
(a)
4.03, 4.04, 11.03
 
(b)
N.A.
 
(c)(1)
11.02
 
(c)(2)
11.02
 
(c)(3)
N.A.
 
(d)
N.A.
 
(e)
11.03
§ 315
(a)
7.01
 
(b)
7.05, 10.02
 
(c)
7.01
 
(d)
7.01
 
(e)
6.11
§ 316
(a)(1)(A)
6.05
 
(a)(1)(B)
6.04
 
(a)(2)
N.A.
 
(a) (last sentence)
6.11
 
(b)
6.07
§ 317
(a)(1)
6.08
 
(a)(2)
6.09
 
(b)
2.04
§ 318
(a)
N.A.
 
(b)
N.A.
 
(c)
N.A.
Note:           This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture.

--
 
-v-
 

This INDENTURE, dated as of October 20, 2010 (this “ Indenture ”), is by and between Tutor Perini Corporation, a Massachusetts corporation (the “ Issuer ”), the Guarantors (as defined below) and Wilmington Trust FSB, as trustee (the “ Trustee ”).
 
WITNESSETH:
 
WHEREAS, the Issuer is entering into this Indenture to establish the form and terms of its 7⅝% Senior Notes due 2018 (the “ Notes ”;  which defined term shall include the Initial Notes and any Additional Notes);
 
WHEREAS, all acts and conditions necessary to authorize the execution and delivery of this Indenture and to make it a valid and binding obligation of the Issuer and the Guarantors have been done or performed.
 
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
 
ARTICLE 1                      
 

 
DEFINITIONS AND INCORPORATION BY REFERENCE
 
SECTION 1.01.  
Definitions
 
.
 
 “ Acquired Indebtedness ” means (1) with respect to any Person that becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary and (2) with respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a Person (other than the Issuer or a Restricted Subsidiary) existing at the time such Person is merged with or into the Issuer or a Restricted Subsidiary, or Indebtedness expressly assumed in connection with the acquisition of the stock or any asset or assets from another Person; provided that such Indebtedness was not incurred by such Person in connection with or in contemplation of such merger or acquisition.
 
“ Additional Notes ” means Notes (other than the Initial Notes) issued pursuant to Article 2 hereof and otherwise in compliance with the provisions of this Indenture.
 
“ Agent ” means any Registrar, Paying Agent (so long as Trustee serves in such capacity) or co-registrar.
 
“ affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “ control ” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.
 
“ Applicable Premium ” means, with respect to any Note on any Redemption Date, the greater of:
 
(1)           1.0% of the principal amount of such Note; and
 
 
1
 
(2)           the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at November 1, 2014 (such redemption price being set forth in Section 3.07), plus (ii) all required interest payments due on such Note through November 1, 2014 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) then outstanding principal amount of such Note.
 
“ Asset Sale ” means any Transfer by the Issuer or any Restricted Subsidiary (other than to the Issuer or a Restricted Subsidiary) of:
 
(1)          any shares of Capital Stock of a Restricted Subsidiary (other than (i) directors’ qualifying shares and, to the extent required by local ownership laws in foreign countries, shares owned by foreign shareholders, and (ii) Preferred Stock of a Restricted Subsidiary issued in compliance with Section 4.07);
 
(2)           all or substantially all the assets of any division, business segment or comparable line of business of the Issuer or any Restricted Subsidiary; or
 
(3)           any other assets of the Issuer or any Restricted Subsidiary outside of the ordinary course of business of the Issuer or such Restricted Subsidiary.
 
Notwithstanding the foregoing, the term “Asset Sale” shall not include:
 
(a)           for purposes of Section 4.08, a Transfer that constitutes a Permitted Investment or a Restricted Payment permitted by Section 4.05 or permitted under Section 5.01.
 
(b)           sales of accounts receivable of the type specified in the definition of “Qualified Securitization Transaction” to a Securitization Entity for the Fair Market Value thereof;
 
(c)           sales or grants of non-exclusive licenses to use the patents, trade secrets, know-how and other intellectual property of the Issuer or any Restricted Subsidiary to the extent that such licenses are granted in the ordinary course of business, and do not prohibit the Issuer or any Restricted Subsidiary from using the technologies licensed and do not require the Issuer or any Restricted Subsidiary to pay any fees for any such use;
 
(d)           a Transfer pursuant to the creation of a Lien permitted under this Indenture including pursuant to any foreclosure of assets or other remedy provided by applicable law by a creditor of the Issuer or any Restricted Subsidiary with a Lien on such assets, if such Lien is permitted under this Indenture;
 
(e)           a Transfer involving only cash, Temporary Cash Investments or Inventory in the ordinary course of business;
 
(f)           any Transfer of damaged, worn-out or obsolete equipment in the ordinary course of business;
 
(g)           the lease or sublease of any real or personal property in the ordinary course of business;
 
 
2
 
(h)           a Transfer of assets having a Fair Market Value and a sale price of less than $10.0 million;
 
(i)           any Transfer constituting a taking, condemnation or other eminent domain proceeding; provided that any Net Available Proceeds from such Transfer (assuming such Transfer was an “Asset Sale” for purposes of the definition of Net Available Proceeds) in excess of $10.0 million shall be applied in accordance with Section 4.08;
 
(j)           dispositions of accounts receivable in connection with the collection or compromise thereof;
 
(k)           dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property which is concurrently purchased pursuant to a transaction otherwise permitted hereunder, in each case under Section 1031 of the Code;
 
 (l)           dispositions of the equity interests of or other Investments in any joint venture to the extent required by the terms of customary buy/sell type arrangements entered into in connection with the formation of such joint venture.
 
(m)           sales or transfer of any assets designated as long-term investments on the Issuer’s balance sheet as of March 31, 2010;
 
(n)           the termination of a contract, including the unwinding of a hedge obligation;
 
(o)           licenses or sublicenses of intellectual property; or
 
(p)           any issuance or sale of equity interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary, including in connection with a merger or consolidation
 
“ Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
 
“ Beneficial Owner ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act.
 
“ Board of Directors ” means (i) with respect to the Issuer or any Restricted Subsidiary, its board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof, (ii) with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof; and (iii) with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.
 
“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer or any Restricted Subsidiary to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
 
“ Business Day ” means any day other than a Legal Holiday.
 
 
3
 
 “ Capital Lease Obligations ” means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP.  The amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP (except for temporary treatment of construction-related expenditures paid by any Person other than the Issuer or any of its Restricted Subsidiaries under EITF 97-10, “The Effect of Lessee Involvement in Asset Construction,” which will ultimately be treated as operating leases upon a sale-leaseback transaction), and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.
 
“ Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.
 
“ Certificated Notes ” means Notes that are in the form of Exhibit A attached hereto.
 
“ Change of Control ” means the occurrence of any of the following events:
 
(1)           the Issuer becomes aware of (by way of a report or other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act but for purposes of determining the “person” or “group” Permitted Holders shall be excluded), other than the Permitted Holders, acquiring beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), of Voting Stock representing 50% or more of the voting power of the total outstanding Voting Stock of the Issuer;
 
(2)           during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (together with any new directors whose election to the Board of Directors or whose nomination for election by the shareholders of the Issuer was approved by a vote of the majority of the directors of the Issuer then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office;
 
(3)           the Issuer consolidates with or merges with or into another Person or another Person merges with or into the Issuer, or all or substantially all the assets of the Issuer and the Restricted Subsidiaries, taken as a whole, are Transferred to another Person, other than the Permitted Holders, and, in the case of any such merger or consolidation, the securities of the Issuer that are outstanding immediately prior to such transaction and which represent 100% of the aggregate voting power of the Voting Stock of the Issuer are changed into or exchanged for cash, securities or property, unless pursuant to such transaction such securities are changed into or exchanged for, in addition to any other consideration, securities of the surviving Person that represent immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving Person; or
 
(4)           the Issuer liquidates or dissolves or the stockholders of the Issuer adopt a plan of liquidation or dissolution.
 
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if:
 
 
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(1)           the Issuer becomes a direct or indirect wholly owned subsidiary of a holding company and;
 
 (2)
 
(a) the direct or indirect holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of our voting stock immediately prior to that transaction or;
 
(b) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company.
 
“ CIS ” means PCR Insurance Company, an Arizona corporation, one hundred percent of the equity interests in which are held by the Issuer, to act as a “captive insurance subsidiary” for the purpose of engaging in the business of insuring certain business risks of the Issuer and its Subsidiaries and Permitted Insureds.
 
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
“ Commission ” means the Securities and Exchange Commission and any successor thereto.
 
“ Consolidated Coverage Ratio ” as of any date of determination means the ratio of (a) the aggregate amount of EBITDA for the period of the most recent four consecutive fiscal quarters for which internal financial statements are available to (b) Consolidated Fixed Charges for such four fiscal quarters; provided that:
 
(1)           if the Issuer or any Restricted Subsidiary has incurred any Indebtedness since the beginning of such period and prior to the event for which the Consolidated Coverage Ratio is being calculated that remains outstanding prior to the event for which the calculation is being made, EBITDA and Consolidated Fixed Charges for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been incurred on the first day of such period and the discharge of any other Indebtedness repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period (except that, in the case of Indebtedness used to finance working capital needs incurred under a revolving credit or similar arrangement, the amount thereof shall be deemed to be the average daily balance of such Indebtedness during such four-fiscal-quarter period);
 
(2)           if since the beginning of such period the Issuer or any Restricted Subsidiary shall have Transferred any assets in an Asset Sale, the EBITDA for such period shall be reduced by an amount equal to the EBITDA (whether positive or negative) directly attributable to the assets which are the subject of such Transfer for such period, and Consolidated Fixed Charges for such period shall be reduced by an amount equal to the Consolidated Fixed Charges directly attributable to any Indebtedness of the Issuer or any Restricted Subsidiary repaid, repurchased, defeased, assumed by a third person (to the extent the Issuer and its Restricted Subsidiaries are no longer liable for such Indebtedness) or otherwise discharged with respect to the Issuer and its continuing Restricted Subsidiaries in connection with such Transfer for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Fixed Charges for such period directly attributable to the Indebtedness of such Restricted Subsidiary to the extent the Issuer and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale);
 
 
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(3)           if since the beginning of such period the Issuer or any Restricted Subsidiary (by merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets, which acquisition constitutes all or substantially all of an operating unit or division of a business, including any such Investment or acquisition occurring in connection with a transaction requiring a calculation to be made hereunder, EBITDA and Consolidated Fixed Charges for such period shall be calculated after giving pro forma effect thereto (including the incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period;
 
(4)           if since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary since the beginning of such period) shall have made any Transfer of assets in an Asset Sale, any Investment or acquisition of assets that would have required an adjustment pursuant to clause (2) or clause (3) above if made by the Issuer or a Restricted Subsidiary during such period, EBITDA and Consolidated Fixed Charges for such period shall be calculated after giving pro forma effect thereto as if such Transfer, Investment or acquisition occurred on the first day of such period; and
 
(5)           if the Issuer or any Restricted Subsidiary has repaid any Indebtedness since the beginning of such period that no longer remains outstanding on such date of determination, EBITDA and Consolidated Fixed Charges for such period shall be calculated after giving effect on a pro forma basis to the repayment of such Indebtedness as if such Indebtedness had repaid on the first day of such period as if such discharge had occurred on the first day of such period.
 
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the amount of income, earnings or expense relating thereto and the amount of Consolidated Fixed Charges associated with any Indebtedness incurred in connection therewith, the pro forma calculations shall be (i) based on the reasonable good faith judgment of a responsible financial or accounting officer of the Issuer and (ii) set forth in a certificate delivered to the Trustee from such officer (it may include, for the avoidance of doubt, cost savings and operating expense reductions resulting from such transaction (which are being given pro forma effect) that are reasonably expected to be realized in the twelve month period immediately subsequent to such transaction or determined in accordance with Article 11 of Regulation S-X promulgated by the SEC).  If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest of such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months).
 
“ Consolidated Fixed Charges ” means, with respect to any period, the sum (without duplication) of:
 
(1)           the interest expense of the Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP consistently applied, including, without limitation:
 
(a)           amortization of debt issuance costs and debt discount;
 
(b)            the net payments, if any, under Interest Rate Agreements (including amortization of discounts);
 
(c)           the interest portion of any deferred payment obligation;
 
 
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(d)           accrued interest;
 
(e)           commissions, discounts and other fees and charges incurred in respect of letters of credit or bankers acceptance financings;
 
(2)           the interest component of the Capital Lease Obligations paid or accrued during such period;
 
(3)           all interest capitalized during such period;
 
(4)           interest accrued during such period on Indebtedness of the type described in clause (6) or (7) of the definition of “Indebtedness”;
 
(5)           the product of
 
(a)           the amount of all dividends on any series of Preferred Stock of the Issuer and the Restricted Subsidiaries (other than dividends paid in Qualified Stock and other than dividends paid to the Issuer or to a Restricted Subsidiary) paid, accrued or scheduled to be paid or accrued during such period; and
 
(b)           a fraction, the numerator of which is one and the denominator of which is one minus then current effective consolidated Federal, state and local tax rate of the Issuer, expressed as a decimal;
 
 
and
 
(6)           fees related to a Qualified Securitization Transaction.
 
“ Consolidated Net Income ” means, for any period, the net income (or loss) of the Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP consistently applied; provided that there shall not be included in such Consolidated Net Income:
 
(1)           any extraordinary, unusual, or non-recurring gains, losses, charges or expenses;
 
(2)           any net income or loss of any Person if such Person is not a Restricted Subsidiary, except Consolidated Net Income shall be increased by the amount of cash actually distributed by such Person during such period to the Issuer or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to a Restricted Subsidiary, to the limitations contained in clause (3) below);
 
(3)           solely for the purpose of determining the amount available for Restricted Payments, the net income of any Restricted Subsidiary that is not a Guarantor to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted, directly or indirectly, without prior approval (that has not been obtained), pursuant to the terms of its charter or any agreement, instrument and governmental regulation applicable to such Restricted Subsidiary or its stockholders;
 
(4)           any gain or loss realized upon the sale or other disposition of (x) any assets (including pursuant to sale and leaseback transactions) which is not sold or otherwise disposed of in the ordinary course of business or (y) any Capital Stock of any Person;
 
 
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(5)           any net after-tax income or loss from discontinued operations; and
 
(6)           the cumulative effect of a change in accounting principles.
 
“ Consolidated Net Tangible Assets ” means, as of any date of determination, the Total Assets less the sum of (1) the goodwill and other intangible assets, net and (2) all current liabilities, in each case, reflected on the most recent consolidated balance sheet of the Issuer and its Restricted Subsidiaries as at the end of the most recently ended fiscal quarter for which financial statements have been or are required to have been delivered pursuant to this Indenture, as applicable, as of the date of determination, determined on a consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
 
“ Construction Business ” means the general contracting, construction management, engineering and design build services business of the Issuer and its Subsidiaries or any business substantially related or incidental thereto.
 
“ Contribution Amounts ” means the aggregate amount of capital contributions applied by the Issuer to permit the incurrence of Contribution Indebtedness pursuant to clause (20) of the definition of “Permitted Indebtedness”.
 
“ Contribution Indebtedness ” means Indebtedness of the Issuer or any Restricted Subsidiary in an aggregate principal amount not greater than the aggregate amount of cash contributions (other than the proceeds from the issuance of Disqualified Stock or any cash contribution by the Issuer or any Restricted Subsidiary) made to the capital of the Issuer or such Restricted Subsidiary after the Issue Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a) is incurred within 180 days after the making of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to an Officers’ Certificate on the date of incurrence thereof.
 
 “ Corporate Trust Office ” means an office of the Trustee at which at any particular time its corporate trust business shall be administered, which office, at the date of the execution of this Indenture is provided in Section 11.01.
 
“ Credit Facilities ” means (i) the Third Amended and Restated Credit Agreement by and among the Issuer (f/k/a Perini Corporation), the guarantors named therein, Bank of America, N.A., as administrative agent and the other lenders party thereto, as amended as of the Issue Date and (ii) any other documents evidencing Indebtedness, and in each case including any notes, guarantees, collateral and security documents (including mortgages, pledge agreements and other security arrangements), instruments and agreements executed in connection therewith, and in each case as amended, amended and restated, supplemented, modified or Refinanced from time to time, including, without limitation, any agreement or agreements extending the maturity of, or Refinancing (including increasing the amount of borrowings or other Indebtedness outstanding or available to be borrowed thereunder), all or any portion of the Indebtedness under such agreement, including, without limitation, any indenture or indentures, and any successor or replacement agreement or agreements, including, without limitation, any indenture or indentures with the same or any other agents, creditor, lender or group of creditors, lenders, trustee or noteholders.
 
“ Currency Agreement ” means, with respect to any Person, any foreign exchange contract, currency swap agreement or other similar agreement to which such Person is a party or a beneficiary.
 
“ Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default; provided that any Default that results solely from the taking of an action
 
 
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that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default.
 
“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, until a successor shall have been appointed and become such pursuant to Section 2.06, and, thereafter, “Depositary” shall mean or include such successor.
 
“ Designated Noncash Consideration ” means the Fair Market Value of non-cash consideration received by the Issuer or one of its Restricted Subsidiaries in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to an officer’s certificate, setting forth the basis of such valuation, executed by a senior financial officer of the Issuer, less the amount of cash or Temporary Cash Investments received in connection with a subsequent sale of such Designated Noncash Consideration.
 
“ Designated Preferred Stock ” means Preferred Stock of the Issuer (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an officers’ certificate executed by a senior vice president or the principal financial officer of the Issuer on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 4.05(a)(3)(B).
 
“ Disqualified Stock ” means, with respect to any Person, 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) or upon the happening of any event:
 
(1)           matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; or
 
(2)           is redeemable at the option of the holder thereof, in whole or in part,
 
in each case on or prior to the date that is 91 days after the earlier of (i) the Stated Maturity of the Notes and (ii) the date on which the Notes are no longer outstanding and for consideration that is not Qualified Stock; provided that any class of Capital Stock of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Qualified Stock, and that is not convertible, puttable or exchangeable for Disqualified Stock or Indebtedness, will not be deemed to be Disqualified Stock so long as such Person satisfies its obligations with respect thereto solely by the delivery of Qualified Stock; provided further that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the Issuer or any Restricted Subsidiary to redeem or purchase such Capital Stock upon the occurrence of a change in control occurring prior to the final maturity date of the Notes shall not constitute Disqualified Stock if the change in control provisions applicable to such Capital Stock are no more favorable to such holders than the provisions set forth in Section 4.11 and such Capital Stock specifically provides that the Issuer or such Restricted Subsidiary will not redeem or purchase any such Capital Stock pursuant to such provisions prior to the Issuer’s purchase of the Notes as required pursuant to the provisions set forth in Section 4.11.
 
“ Domestic Subsidiary ” means a Restricted Subsidiary of the Issuer that is not a Foreign Subsidiary.
 
 
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“ DTC ” means The Depository Trust Company (55 Water Street, New York, New York).
 
“ EBITDA ” for any period means the sum of Consolidated Net Income for such period plus, without duplication, the following to the extent deducted in calculating such Consolidated Net Income:
 
(1)           Consolidated Fixed Charges;
 
(2)           income tax expense determined on a consolidated basis in accordance with GAAP;
 
(3)           depreciation expense determined on a consolidated basis in accordance with GAAP;
 
(4)           amortization expense determined on a consolidated basis in accordance with GAAP;
 
(5)           amounts attributable to minority interest;
 
(6)           any non-cash charge, loss, or expense (including any impairment charge or asset write-off pursuant to GAAP), excluding any such non-cash charge, loss, or expense, that represents an accrual or reserve for potential cash items in any future period;
 
(7)           all costs and expenses arising from or related to the Notes and/or in connection with amending the Credit Facilities;
 
(8)           non-cash stock compensation, including any non-cash expenses arising from stock options, stock grants or other equity-incentive programs, the granting of stock appreciation rights and similar arrangements;
 
(9)           to the extent the related loss is not added back in calculating such Consolidated Net Income, proceeds of business interruption insurance policies to the extent of such related loss;
 
(10)           fees related to a Qualified Securitization Transaction;
 
(11)           any fees, costs and expenses of the Issuer and its Restricted Subsidiaries incurred as a result of acquisitions permitted hereunder, Investments, Asset Sales permitted hereunder and the issuance, repayment or amendment of equity interests or Indebtedness permitted hereunder (in each case, whether or not consummated);
 
provided that EBITDA shall be reduced by all non-cash items increasing such Consolidated Net Income (excluding (x) any non-cash item to the extent that it represents an accrual of cash receipts to be received in a subsequent period and (y) the amount attributable to minority interests)
 
“ Equity Offering ” means a public or private offering or placement of Capital Stock of the Issuer (other than Disqualified Stock).
 
“ Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“ Excluded Contribution ” means net cash proceeds, marketable securities or property received by the Issuer from:
 
 
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(i)           contributions to its common equity capital, and
 
(ii)           the sale (other than to a Subsidiary of the Issuer or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock) of the Issuer,
 
in each case designated as Excluded Contributions pursuant to an officers’ certificate executed by a senior vice president or the principal financial officer of the Issuer on the date such capital contributions are made or the date such equity interests are sold, as the case may be, which are excluded from the calculation set forth in Section 4.05(a)(3)(B).
 
“ Fair Market Value ” means, with respect to any asset, the price (after taking into account any liabilities, including contingent and off-balance sheet liabilities, relating to such assets) that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction.  Fair Market Value (other than of any asset with a public trading market) in excess of $20.0 million shall be determined by the Board of Directors acting reasonably and in good faith and shall be evidenced by a Board Resolution delivered to the Trustee.
 
“ Foreign Subsidiary ” means (i) a Restricted Subsidiary that is incorporated in a jurisdiction other than the United States or a State thereof or the District of Columbia, and (ii) any Restricted Subsidiary that has no material assets other than Capital Stock, securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof).
 
“ GAAP ” means generally accepted accounting principles in the United States which are in effect on the Issue Date. At any time after the Issue Date, the Issuers may elect to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS on the date of such election; provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Issuers’ election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Issuers shall give notice of any such election made in accordance with this definition to the Trustee.
 
“ Global Note Legend ” means the legend identified as such in Section 2.06(e) hereto.
 
“ Global Notes ” means the Notes in global form that are in the form of Exhibit A hereto
 
“ guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
 
(1)           to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
 
(2)           entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
 
 
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provided that the term “guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The term “ guarantee ” used as a verb has a corresponding meaning.  The term “ guarantor ” shall mean any Person guaranteeing any obligation.
 
“ Guarantee ” means a full and unconditional senior guarantee of the Notes pursuant to this Indenture.
 
“ Guarantor ” means any Restricted Subsidiary of the Issuer that issues a Guarantee of the Notes, in each case, until such Person is released from its Guarantee in accordance with this Indenture.
 
“ Hedging Obligations ” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement or Currency Agreement or any agreement to limit commodity risk, in each case excluding Hedging Obligations entered into for speculative purposes.
 
“ Holder ” means a Person in whose name a Note is registered.
 
“ incur ” means issue, create, assume, enter into a guarantee with respect to, incur or otherwise become liable for; provided that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be incurred by such Subsidiary at the time it becomes a Restricted Subsidiary.  Neither the accrual of interest nor the accretion of original issue discount shall be deemed to be an incurrence of Indebtedness.  The term “ incurrence ” when used as a noun shall have a correlative meaning.
 
“ Indebtedness ” means, with respect to any Person, without duplication, and whether or not contingent:
 
(1)           all indebtedness of such Person for borrowed money or for the deferred purchase price of assets or services or which is evidenced by a note, bond, debenture or similar instrument, to the extent it would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP (excluding any footnotes thereto);
 
(2)           all Capital Lease Obligations of such Person to the extent they would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP (excluding any footnotes thereto);
 
(3)           all obligations of such Person in respect of letters of credit or bankers’ acceptances issued or created for the account of such Person to the extent it would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP (excluding any footnotes thereto);
 
(4)           net obligations of such Person under Interest Rate Agreements or Currency Agreements;
 
(5)           all Disqualified Stock issued by such Person and all Preferred Stock issued by any Restricted Subsidiary of such Person, in each case, valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends thereon;
 
(6)           to the extent not otherwise included, any guarantee by such Person of any other Person’s indebtedness or other obligations described in clauses (1) through (5) above; and
 
 
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(7)           all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (x) the Fair Market Value of such asset at such date of determination and (y) the amount of such Indebtedness.
 
For the avoidance of doubt, “Indebtedness” shall not include:
 
(a)           trade payables or other accrued liabilities incurred in the ordinary course of business and payable in accordance with customary practices;
 
(b)           deferred tax obligations;
 
(c)           minority interest;
 
(d)           non-interest bearing installment obligations and accrued liabilities incurred in the ordinary course of business; and
 
(e)           obligations of the Issuer or any Restricted Subsidiary pursuant to contracts for, or options, puts or similar arrangements relating to, the purchase of raw materials or the sale of Inventory at a time in the future entered into in the ordinary course of business.
 
For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified 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 Stock, such Fair Market Value is to be determined in good faith by the board of directors of the issuer of such Disqualified Stock.  The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations as described above at such date; provided that the amount outstanding at any time of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP.  The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness or Disqualified Stock, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Indenture.
 
“ Independent Financial Advisor ” means a firm:
 
(1)           which does not, and whose directors, officers or affiliates do not, have a material financial interest in the Issuer or any of its Subsidiaries; and
 
(2)           which, in the judgment of the Issuer, is otherwise independent and qualified to perform the task for which it is to be engaged.
 
“ Initial Notes ” has the meaning set forth in the preamble hereto.
 
 
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“ Interest Rate Agreement ” means any interest rate swap agreement, interest rate cap agreement or other similar financial agreement or arrangement.
 
“ Inventory ” has the meaning provided in the Uniform Commercial Code of the State of New York, as amended.
 
“ Investment ” in any Person means any direct or indirect advance, loan or other extension of credit (including by way of guarantee or similar arrangement) or capital contribution to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person.  “Investment” excludes (a) any Restricted Payment of the type described in clause (2) of the definition “Restricted Payment” and (b) any purchase or acquisition of Indebtedness of the Issuer or any of its Subsidiaries.
 
For purposes of the definition of “Unrestricted Subsidiary,” the definition of “Restricted Payment” and Section 4.05:
 
(1)           “Investment” shall include the portion (proportionate to the Issuer’s direct and indirect equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary;
 
(2)           any asset Transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such Transfer; and
 
(3)           if the Issuer or any Restricted Subsidiary Transfers any Capital Stock of any direct or indirect Restricted Subsidiary, or any Restricted Subsidiary issues Capital Stock, such that, after giving effect to any such Transfer or issuance, such Person is no longer a Restricted Subsidiary, the Issuer shall be deemed to have made an Investment on the date of any such Transfer or issuance equal to the Fair Market Value of the Capital Stock of such Person held by the Issuer or such Restricted Subsidiary immediately following any such Transfer or issuance.
 
“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or, in either case, an equivalent rating by any other Rating Agency.
 
“ Issue Date ” means October 20, 2010.
 
“ Issuer Order ” means any written instruction by the Issuer and executed by an Officer of the Issuer.
 
“ Joint Venture ” means any Person in which the Issuer owns, directly or indirectly, less than a hundred percent (100%) of the equity interests therein.
 
“ Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions in The City of New York, the city in which the principal Corporate Trust Office of the Trustee is located or at a place of payment are authorized or required by law, regulation or executive order to remain closed.  If a payment date in a place of payment is a Legal Holiday, payment shall be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
 
“ Lien ” means any mortgage, deed of trust, lien, pledge, charge, debenture, security interest or encumbrance of any kind in respect of an asset with respect to any asset then held by the Issuer or a Restricted Subsidiary, whether or not filed, recorded or otherwise perfected under applicable law (including
 
 
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any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in any asset and any filing of, or agreement to give, any financing statement under the UCC or equivalent statutes) of any jurisdiction other than to evidence a lease.
 
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
 
“ Net Available Proceeds ” from an Asset Sale means the aggregate cash proceeds received by such Person and/or its affiliates in respect of such transaction, which amount is equal to the excess, if any, of:
 
(1)           the cash received by such Person and/or its affiliates (including any cash payments received by way of deferred payment pursuant to, or monetization of, a note or installment receivable or otherwise, but only as and when received) in connection with such transaction, over
 
(2)           the sum of (a) the amount of any Indebtedness that is secured by such asset and which is repaid by such person in connection with such transaction (other than any such Indebtedness assumed by the purchaser of such assets), plus (b) all fees, commissions, and other expenses incurred by such Person in connection with such transaction, plus (c) provision for taxes, including income taxes, attributable to the transaction or attributable to required prepayments or repayments of Indebtedness with the proceeds of such transaction, including any withholding taxes imposed on the repatriation of proceeds, plus (d) a reasonable reserve for the after-tax cost of any indemnification payments (fixed or contingent) attributable to seller’s indemnities to purchaser in respect of such transaction undertaken by the Issuer or any of its Restricted Subsidiaries in connection with such transaction, plus (e) if such Person is a Restricted Subsidiary, any dividends or distributions payable to holders of minority interests in such Restricted Subsidiary from the proceeds of such transaction, plus (f) any reasonable reserves established by, and reflected on the financial statements of, the Issuer and its Restricted Subsidiaries in accordance with GAAP (other than any taxes deducted pursuant to clause (c) above) (x) associated with the assets that are the subject of such event and (y) retained by the Issuer or any Restricted Subsidiary to fund contingent liabilities that are directly attributable to such event and that are reasonably estimated to be payable by the Issuer or any Restricted Subsidiary within 18 months following the date that such event occurred (other than in the case of contingent tax liabilities, which shall be reasonably estimated to be payable within the current or immediately succeeding tax year); provided that any amount by which such reserves are reduced for reasons other than payment of any such contingent liabilities shall be considered “Net Available Proceeds” on the date of such reduction.
 
“ Net Cash Proceeds ” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof.
 
“ Note Custodian ” means the Trustee when serving as custodian for the Depositary with respect to the Global Notes, or any successor entity thereto.
 
“ Obligations ” means, with respect to any Indebtedness, any principal, interest, penalties, fees, indemnification, reimbursements, costs, expenses, damages and other liabilities payable under the documentation governing such Indebtedness.
 
“ Offering Memorandum ” means the Offering Memorandum dated October 15, 2010 related to the issuance of the Initial Notes on the Issue Date.
 
 
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“ Officer ” means the Chairman of the Board, Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, the principal accounting officer, the Secretary or any Assistant Secretary, any Executive Vice President or any Vice President of the Issuer.
 
“ Officers’ Certificate ” means a certificate, in form and substance reasonably satisfactory to the Trustee, signed by two Officers of the Issuer, at least one of whom shall be the principal executive officer, the Treasurer, the principal accounting officer, or principal financial officer of the Issuer, and delivered to the Trustee.
 
“ Opinion of Counsel ” means a written opinion from legal counsel acceptable to the Trustee. Counsel may be an employee of or counsel to the Issuer.
 
“ Participant ” means, with respect to DTC, a Person who has an account with DTC.
 
 “ Permitted Business ” means (1) the same or a similar line of business as the Issuer and the Restricted Subsidiaries are engaged in on the Issue Date as described in the offering memorandum and (2) such business activities as are complementary, incidental, ancillary or related to, or are reasonable extensions of, the foregoing.
 
“ Permitted Holders ” means (1) Ronald N. Tutor; (2) any of his brothers, sisters, children of brothers or sisters, grandchildren, grand nieces, grand nephews and other members of his immediate family, and other descendants; (3) in the event of the incompetence or death of any of the Persons described in clauses (1) and (2), such Person’s estate, executor, administrator, committee or other personal representative; (4) any trusts created for the benefit of the Persons described in clause (1) or (2); or (5) any Person controlled by any of the Persons described in clause (1), (2), or (4) and (5) any group of Persons (as defined in the Exchange Act) in which the Persons described in clause (1), (2), or (4), individually or collectively, control such group. For purposes of this definition, “ control ,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by agreement or otherwise
 
 “ Permitted Insured ” means (a) any Person, including any subcontractor of the Issuer or one of its Subsidiaries, engaged to perform work on a project, (b) any vendor engaged to provide goods or services to a project, and (c) any owner of or interest holder in a project, in each case for a project in which the Issuer or one of its Subsidiaries is acting as the general contractor or a subcontractor.
 
“ Permitted Investment ” means:
 
(1)           any Investment in cash, Temporary Cash Investments or the Notes;
 
(2)           any Investment in the Issuer or any Restricted Subsidiary;
 
(3)           any Investment by the Issuer or any Restricted Subsidiary in a Person, if as a result of such Investment:
 
(a)           such Person becomes a Restricted Subsidiary; or
 
(b)           such Person is merged or consolidated with or into, or Transfers or conveys all or substantially all of its assets to, or is liquidated into, the Issuer or a Guarantor;
 
 
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(4)           receivables owing to the Issuer or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Issuer or any such Restricted Subsidiary deems reasonable under the circumstances;
 
(5)           loans or advances to employees of the Issuer or any Restricted Subsidiary that are made in the ordinary course of business of the Issuer or such Restricted Subsidiary, in an aggregate amount, taken together with all other loans or advances made pursuant to this clause (5) that are at the time outstanding, not to exceed $15.0 million;
 
(6)           Investments to the extent such Investment represents the non-cash portion of the consideration received in an Asset Sale as permitted pursuant to Section 4.08 or represents consideration received from the sale of assets not considered to be an Asset Sale for purposes of such covenant;
 
(7)           Investments of cash or Temporary Cash Investments in any Restricted Subsidiary that is not a Guarantor in the form of Indebtedness that is not subordinated by its terms to any other obligations;
 
(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;
 
(9)           Hedging Obligations incurred pursuant to clause (7) of Section 4.07(b);
 
(10)           Additional Investments in an aggregate amount, taken together with all other Investments made pursuant to this clause (10) that are at that time outstanding, not to exceed $50.0 million;
 
(11)           any Investment by the Issuer or a Wholly Owned Subsidiary of the Issuer in a Securitization Entity; provided that such Investment is in the form of a Purchase Money Note or an equity interest or interests in accounts receivable generated by the Issuer or any of its Subsidiaries;
 
(12)           any Indebtedness of the Issuer to any of its Subsidiaries incurred in connection with the purchase of accounts receivable and related assets by the Issuer from any such Subsidiary which assets are subsequently conveyed by the Issuer to a Securitization Entity in a Qualified Securitization Transaction;
 
(13)           Investments consisting of take-or-pay obligations contained in supply agreements relating to products, services or commodities of a type that the Issuer or any of its Subsidiaries uses or sells in the ordinary course of business;
 
(14)           security deposits required by utility companies and other Persons in a similar line of business to that of utility companies and governmental authorities that are utility companies, in each case, made in the ordinary course of business of the Issuer and its Subsidiaries;
 
(15)           any guarantees of Indebtedness permitted by clause (6) of Section 4.07(b);
 
(16)           Investments existing on the Issue Date;
 
 
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(17)           Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged into the Issuer or merged into or consolidated with a Restricted Subsidiary after the Issue Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
 
(18)           advances of payroll payments to employees in the ordinary course of business; and
 
(19)           any Investment in Joint Ventures consistent with construction industry practice.
 
The amount of any Permitted Investment made in assets other than cash shall be its Fair Market Value.
 
The amount of any Investments outstanding for purposes of clause (10) above and the amount of Investments made since the Issue Date for purposes of clause (9) of Section 4.05(b) shall be equal to the aggregate amount of Investments made pursuant to such clause reduced (but not below zero) by the following (to the extent not included in the calculation of Consolidated Net Income for purposes of determining the Basket and without duplication):
 
(a)           the aggregate net proceeds (including the Fair Market Value of assets other than cash) received by the Issuer or any Restricted Subsidiary upon the sale or other disposition of any Investment made pursuant to such clause;
 
(b)           the net reduction in Investments made pursuant to such clause resulting from dividends, repayments of loans or advances or other Transfers of assets to the Issuer or any Restricted Subsidiary;
 
(c)           to the extent that the amount available for Investments under such clause was reduced as the result of the designation of an Unrestricted Subsidiary, the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is redesignated, or liquidated or merged into, a Restricted Subsidiary; and
 
(d)           the net reduction in Investments made pursuant to such clause resulting from repayment of letters of credit or the expiration of letters of credit undrawn.
 
“ Permitted Liens ” means:
 
(1)           Liens on assets of a Person at the time such Person becomes a Subsidiary or when such assets are acquired (including by way of merger with such Person); provided that (a) such Lien was not incurred in anticipation of or in connection with the transaction or series of related transactions pursuant to which such Person became a Subsidiary or such assets were acquired and (b) such Lien does not extend to cover any assets of the Issuer or any other Restricted Subsidiary;
 
(2)           Liens existing on the Issue Date other than Liens securing Indebtedness incurred under clause (3) of Section 4.07(b);
 
(3)           Liens imposed by law that are incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, mechanics’,
 
 
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                                                                                                                                                                                landlords’, materialmen’s, employees’, laborers’, employers’, suppliers’, banks’, repairmen’s and other like Liens, in each case, for sums not yet due or that are being contested in good faith by appropriate proceedings and that are appropriately reserved for in accordance with GAAP if required by GAAP;
 
(4)           Liens for taxes, assessments and governmental charges not yet due or payable or subject to penalties for non-payment or that are being contested in good faith by appropriate proceedings and that are appropriately reserved for in accordance with GAAP if required by GAAP;
 
(5)           Liens on assets acquired or constructed after the Issue Date securing Purchase Money Indebtedness and Capital Lease Obligations; provided that such Liens shall in no event extend to or cover any assets other than such assets acquired or constructed after the Issue Date with the proceeds of such Purchase Money Indebtedness or Capital Lease Obligations;
 
(6)           zoning restrictions, easements, rights-of-way, restrictions on the use of real property, other similar encumbrances on real property incurred in the ordinary course of business and minor irregularities of title to real property that do not (a) secure Indebtedness or (b) individually or in the aggregate materially impair the value of the real property affected thereby or the occupation, use and enjoyment in the ordinary course of business of the Issuer and the Restricted Subsidiaries at such real property;
 
(7)           terminable short-term leases or permits for occupancy, which leases or permits (1) expressly grant to the Issuer or any Restricted Subsidiary the right to terminate them at any time on not more than six months’ notice and (b) do not individually or in the aggregate interfere with the operation of the business of the Issuer or any Restricted Subsidiary or individually or in the aggregate impair the use (for its intended purpose) or the value of the property subject thereto;
 
(8)           pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
 
(9)           Liens resulting from operation of law with respect to any judgments, awards or orders to the extent that such judgments, awards or orders do not cause or constitute an Event of Default;
 
(10)           bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and cash equivalents on deposit in one or more accounts maintained by the Issuer or any Restricted Subsidiary in accordance with the provisions of this Indenture, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements; provided that in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
 
(11)           Liens securing Refinancing Indebtedness relating to Permitted Liens of the type described in clauses (1), (2), (5) and (33) of this definition; provided that such Liens extend only to the assets securing the Indebtedness being Refinanced;
 
(12)           other Liens securing obligations in an aggregate amount at any time outstanding not to exceed $75.0 million;
 
(13)           Liens securing Indebtedness incurred under clause (3) of Section 4.07(b);
 
 
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(14)           Liens securing Hedging Obligations of the type described in clause (7) of Section 4.07(b);
 
(15)           Liens securing Indebtedness of Foreign Subsidiaries;
 
(16)           Liens in favor of the Issuer or any Guarantor;
 
(17)           Liens on assets or shares of stock of a Person at the time such Person becomes a Subsidiary; provided that such Lien was not incurred in anticipation of or in connection with the transaction or series of related transactions pursuant to which such Person became a Subsidiary;
 
 (18)           Liens in favor of banks that arise under Article 4 of the UCC on items in collection and documents relating thereto and proceeds thereof and Liens arising under Section 2-711 of the UCC;
 
(19)           Liens arising or that may be deemed to arise in favor of a Securitization Entity arising in connection with a Qualified Securitization Transaction;
 
(20)           pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent or deposits as security for the payment of insurance-related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto), in each case incurred in the ordinary course of business;
 
(21)           Liens in favor of the issuers of surety, performance, judgment, appeal and like bonds or letters of credit issued in the ordinary course of business;
 
(22)           Liens occurring solely by the filing of a UCC statement (or similar filings), which filing (A) has not been consented to by the Issuer or any Restricted Subsidiary or (B) arises solely as a precautionary measure in connection with operating leases or consignment of goods;
 
(23)           any obligations or duties affecting any property of the Issuer or any Restricted Subsidiary to any municipality or public authority with respect to any franchise, grant, license or permit that do not materially impair the use of such property for the purposes for which it is held;
 
(24)           Liens on any property in favor of domestic or foreign governmental bodies to secure partial, progress, advance or other payments pursuant to any contract or statute not yet due and payable;
 
(25)           Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements;
 
(26)           deposits, pledges or other Liens to secure obligations under purchase or sale agreements;
 
(27)           other Liens or, with respect to real property, title defects (including matters which an accurate survey might disclose) which (i) do not secure Indebtedness; and (ii) do not
 
 
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                                                                                                                                     materially detract from the value of such property or materially impair the use thereof by the Issuer or such Restricted Subsidiary in the operation of its business;
 
(28)           leases or subleases granted to others not interfering in any material respect with the business of the Issuer or any of its Restricted Subsidiaries;
 
(29)           Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods (including under Article 2 of the Uniform Commercial Code) and Liens that are contractual rights of set-off relating to purchase orders and other similar agreements entered into by the Issuer or any of its Restricted Subsidiaries;
 
 (30)           Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto incurred in the ordinary course of business;
 
 (31)           Liens consisting of an agreement to sell or otherwise dispose of any property in an Asset Sale permitted under Section 4.08, in each case solely to the extent such Asset Sale would have been permitted on the date of the creation of such Lien;
 
(32)           Liens securing Indebtedness permitted to be incurred under clause (18) of Section 4.07(b); and
 
(33)           Liens securing Indebtedness in an aggregate principal amount not to exceed $30.0 million with respect to the property known as “Duck Creek” located at APNs 161-31-702-027, 161-31-702-022, 161-31-702-024, Las Vegas, Nevada and the property located at APN 103-10-010-007, Clark County Nevada.
 
For purposes of determining compliance with this definition, Permitted Liens need not be incurred solely by reference to one category of Permitted Liens described above but are permitted to be incurred in part under any combination thereof.
 
“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
 
“ Preferred Stock ,” as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.
 
“ principal ” of a Note means the principal of the Note plus the premium, if any, payable on the Note which is due or overdue or is to become due at the relevant time.
 
 “ Purchase Money Indebtedness ” means Indebtedness:
 
(1)           consisting of the deferred purchase price of assets, including equipment and property, conditional sale obligations, obligations under any title retention agreement, other purchase money obligations, mortgages and obligations in respect of industrial revenue bonds or similar Indebtedness; and
 
 
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(2)            incurred to finance the acquisition by the Issuer or a Restricted Subsidiary of such asset, including additions and improvements or the installation, construction or improvement of such asset;
 
provided that any Lien arising in connection with any such Indebtedness shall be limited to the specified asset being financed or, in the case of real property or fixtures, including additions and improvements, the real property on which such asset is attached; provided further that such Indebtedness is incurred within 180 days after such acquisition of, or the completion of construction of, such asset by the Issuer or Restricted Subsidiary.
 
“ Purchase Money Note ” means a promissory note evidencing a line of credit, which may be irrevocable, from, or evidencing other Indebtedness owed to, the Issuer or any of its Subsidiaries in connection with a Qualified Securitization Transaction, which note shall be repaid from cash available to the maker of such note, other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest, principal and other amounts owing to such investors and amounts paid in connection with the purchase of newly generated receivables.
 
“ Qualified Securitization Transaction ” means any transaction or series of transactions that may be entered into by the Issuer, any Restricted Subsidiary or a Securitization Entity pursuant to which the Issuer or such Restricted Subsidiary or that Securitization Entity may, pursuant to customary terms, sell, convey or otherwise transfer to, or grant a security interest in for the benefit of, (1) a Securitization Entity or the Issuer or any Restricted Subsidiary which subsequently transfers to a Securitization Entity (in the case of a transfer by the Issuer or such Restricted Subsidiary) and (2) any other Person (in the case of transfer by a Securitization Entity), any accounts receivable (whether now existing or arising or acquired in the future) of the Issuer or any Restricted Subsidiary which arose in the ordinary course of business of the Issuer or such Restricted Subsidiary, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets (including contract rights) which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.
 
“ Qualified Stock ” means any Capital Stock of the Issuer other than Disqualified Stock.
 
“ Rating Agencies ” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as the case may be.
 
“ Redemption Price ” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
 
“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, increase, replace, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness, in part or in whole.  “ Refinanced ” and “ Refinancing ” shall have correlative meanings.
 
“ Refinancing Indebtedness ” means, with respect to any Indebtedness, Indebtedness incurred to Refinance such Indebtedness that does not:
 
(1)           result in an increase in the aggregate principal amount of Indebtedness being Refinanced as of the date of such proposed Refinancing (plus the amount of any premium required to
 
 
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                                                                                                                                     be paid under the terms of the instrument governing such Indebtedness and plus the amount of reasonable expenses incurred 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 the Indebtedness being Refinanced is subordinated in right of payment by its terms to the Notes or a Guarantee, then such Refinancing Indebtedness shall be subordinated in right of payment by its terms to the Notes or such Guarantee at least to the same extent and in the same manner as the Indebtedness being Refinanced and (y) the obligor(s) on the Refinancing Indebtedness shall not include any Person that is not the Issuer or a Guarantor or a Person that is an obligor on the Indebtedness being Refinanced.
 
“ Responsible Officer ” when used with respect to the Trustee shall mean any officer in the corporate trust department (or any successor group) of the Trustee with direct responsibility for the administration of this Indenture and shall also mean, with respect to a particular corporate trust matter, any other officer to whom the corporate trust matter is referred at the Trustee because of his or her knowledge of and familiarity with the particular subject.
 
“ Restricted Notes Legend ” means the legend identified as such in Section 2.06(e) hereto.
 
 “ Restricted Payment ” means, with respect to any Person:
 
(1)           any dividend or other distribution declared or paid on any Capital Stock of the Issuer (other than dividends or distributions payable solely in Qualified Stock);
 
(2)           any payment to purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Issuer;
 
(3)           any payment to purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Obligations prior to the Stated Maturity thereof (other than (i) any Purchase Money Indebtedness incurred after the Issue Date upon the sale, condemnation or casualty of the related asset and (ii) any Indebtedness owed to the Issuer or any of the Restricted Subsidiaries); or
 
(4)           the making of an Investment (other than a Permitted Investment), including any Investment in an Unrestricted Subsidiary (including by the designation of any Subsidiary of the Issuer as an Unrestricted Subsidiary).
 
“ Restricted Subsidiary ” means each Subsidiary of the Issuer that is not an Unrestricted Subsidiary.
 
“ S&P ” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.
 
 “ Securitization Entity ” means a Wholly Owned Subsidiary of the Issuer (or another Person in which the Issuer or any Subsidiary of the Issuer makes an Investment and to which the Issuer or any Subsidiary of the Issuer Transfers accounts receivable):
 
 
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(1)           which is designated by the Board of Directors (as provided below) as a Securitization Entity and engages in no activities other than in connection with the financing of accounts receivable;
 
(2)           no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (a) is guaranteed by the Issuer or any of its Subsidiaries (other than the Securitization Entity) (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (b) is recourse to or obligates the Issuer or any of its Subsidiaries (other than the Securitization Entity) in any way other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Issuer or any of its Subsidiaries (other than the Securitization Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings and other than any interest in the accounts receivable (whether in the form of an equity interest in such assets or subordinated indebtedness payable primarily from such financed assets) retained or acquired by the Issuer or any of its Subsidiaries;
 
(3)           with which neither the Issuer nor any of its Subsidiaries has any material contract, agreement, arrangement or understanding other than on terms no less favorable to the Issuer or such Subsidiary than those that might be obtained at the time from Persons that are not affiliates of the Issuer, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity; and
 
(4)           to which neither the Issuer nor any of its Subsidiaries has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.
 
Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution giving effect to such designation and an officers’ certificate certifying that such designation complied with the foregoing conditions.
 
“ Significant Subsidiary ” means (1) any Restricted Subsidiary that is a “significant subsidiary” of the Issuer on a consolidated basis within the meaning of Regulation S-X promulgated by the SEC or (2) any Restricted Subsidiary that, when aggregated with all other Restricted Subsidiaries that are not otherwise Significant Subsidiaries and as to which any event described in clause (g) or (h) of Section 6.01 has occurred and is continuing, would constitute a Significant Subsidiary under clause (1) of this definition.
 
“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Issuer or any of its Subsidiaries which are reasonably customary in an accounts receivable securitization transaction.
 
“ Stated Maturity ” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency unless such contingency has occurred).
 
“ Subordinated Obligation ” means any Indebtedness of the Issuer or a Guarantor (whether outstanding on the Issue Date or thereafter incurred) which is subordinated by its terms in right of payment to the Notes or the Guarantee of the Issuer or such Guarantor.
 
 
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“ Subsidiary ” means, in respect of any Person, any corporation, association, partnership or other business entity of which Voting Stock representing more than 50% of the total voting power of all outstanding Voting Stock of such Person is at the time owned, directly or indirectly, by:
 
(1)           such Person;
 
(2)           such Person and one or more Subsidiaries of such Person; or
 
(3)           one or more Subsidiaries of such Person.
 
“ Temporary Cash Investments ” means any of the following:
 
(1)           any investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof;
 
(2)           investments in time or demand deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A-2” or higher by Moody’s, “A” or higher by S&P or the equivalent rating by any other nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor;
 
(3)           repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) above entered into with a bank meeting the qualifications described in clause (2) above;
 
(4)           investments in commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an affiliate of the Issuer) organized and in existence under the laws of the United States of America, any State thereof or the District of Columbia or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is “P-2” or higher from Moody’s, “A-2” or higher from S&P or the equivalent rating by any other nationally recognized statistical rating organization (as defined above);
 
(5)           investments in securities with maturities of six months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by Moody’s or “A” by S&P; and
 
(6)           shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P, at least Aaa or the equivalent thereof by Moody’s or any other mutual fund at least 95% of whose assets consist of the type specified in clauses (1) through (5) above.
 
“ Total Assets ” means the total assets of the Issuer and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Issuer.
 
“ Transfer” means to sell, assign, transfer, lease (other than pursuant to an operating lease entered into in the ordinary course of business), convey or otherwise dispose of, including by consolidation, mer-
 
 
25
 
                                                                                                                                         ger or otherwise, in one transaction or a series of transactions.  “ Transferred ,” “ Transferor ” and “ Transferee ” have correlative meanings.
 
“ Treasury Rate ” means, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to November 1, 2014; provided , however , that if the period from the Redemption Date to November 1, 2014 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
 
“ Transfer Restricted Global Notes ” means a Global Note that is a Transfer Restricted Note.
 
“ Transfer Restricted Notes ” means Notes that bear or are required to bear the Restricted Notes Legend.
 
 “ UCC ” means the Uniform Commercial Code in effect in the applicable jurisdiction.
 
“ Unrestricted Subsidiary ” means:
 
(1)           any Subsidiary of the Issuer that at the time of determination shall have been designated an Unrestricted Subsidiary by the Issuer; and
 
(2)           any Subsidiary of an Unrestricted Subsidiary.
 
The Issuer may designate any Subsidiary of the Issuer (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any assets of, the Issuer or any other Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided that:
 
(1)           no Default has occurred and is continuing or would occur as a consequence thereof;
 
(2)           (x) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (y) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such designation; and
 
(3)           either (x) the Subsidiary to be so designated has total assets of $1,000 or less or (y) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.05 (treating the Fair Market Value of the Issuer’s proportionate interest in the net worth of such Subsidiary on such date calculated in accordance with GAAP as the amount of the Investment).
 
The Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:
 
(1)           no Default has occurred and is continuing; and
 
(2)           Indebtedness of such Unrestricted Subsidiary and all Liens on any asset of such Unrestricted Subsidiary outstanding immediately following such redesignation would, if incurred at such time, be permitted to be incurred under this Indenture.
 
 
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Any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, as the case may be, that involves total assets of $20.0 million or more shall be approved by the Board of Directors.
 
“ U.S. Government Obligations ” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer’s option.
 
“ Voting Stock ” of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
 
“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
 
(1)           then outstanding aggregate principal amount of such Indebtedness into
 
(2)           the sum of the total of the products obtained by multiplying (x) 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 (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.
 
“ Wholly Owned Subsidiary ” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Issuer and/or one or more Wholly Owned Subsidiaries.
 
SECTION 1.02.  
Other Definitions
 
.
 
Term
Defined in Section
   
Affiliate Transaction                                                                          
4.09(a)
Agent Members                                                                          
2.06(a)
Authentication Order                                                                          
2.02(d)
Basket                                                                          
4.05(a)
Change of Control Offer                                                                          
4.11
Covenant Defeasance                                                                          
8.03
Covenant Suspension                                                                          
4.14
Coverage Ratio Exception                                                                          
4.07(a)
Event of Default                                                                          
6.01
Excess Proceeds                                                                          
4.08(b)
Guaranteed Obligations                                                                          
10.01
Indenture                                                                          
Preamble
Issuer                                                                          
Preamble
Issuer Surviving Entity                                                                          
5.01(a)
Legal Defeasance                                                                          
8.02
Net Proceeds Deficiency                                                                          
4.08(c)
Net Proceeds Offer                                                                          
4.08(c)
Notes                                                                          
Preamble
Offer Amount                                                                          
3.09(b)
Offer Period                                                                          
3.09(b)
Offered Price                                                                          
4.08(c)
 
 
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      Term   Defined in Section
Offer to Purchase                                                                          
3.09(a)
Paying Agent                                                                          
2.03(a)
Payment Default                                                                          
6.01(e)
Permitted Indebtedness                                                                          
4.07(b)
Purchase Date                                                                          
3.09(b)
Redemption Date                                                                          
2.08(d)
QIB Global Note                                                                          
2.01(b)
QIBs                                                                          
2.01(b)
Registrar                                                                          
2.03(a)
Regulation S                                                                          
2.01(b)
Regulation S Global Note                                                                          
2.01(b)
Required Filing Dates                                                                          
4.03(a)
Reversion Date                                                                          
4.14
Rule 144A                                                                          
2.01(b)
Suspended Covenants                                                                          
4.14
Suspension Period                                                                          
4.14
Trustee                                                                          
Preamble, 8.05

SECTION 1.03.  
Incorporation by Reference of Trust Indenture Act
 
.
 
(a)   Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
 
(b)   The following Trust Indenture Act terms used in this Indenture have the following meanings:
 
“indenture securities” means the Notes and the Guarantees;
 
“indenture security holder” means a Holder;
 
“indenture to be qualified” means this Indenture;
 
“indenture trustee” or “institutional trustee” means the Trustee; and
 
“obligor” on the Notes means the Issuer and any successor obligor upon the Notes.
 
(c)   All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act and not otherwise defined herein have the meanings so assigned to them either in the Trust Indenture Act, by another statute or SEC rule, as applicable.
 
SECTION 1.04.  
Rules of Construction
 
.
 
(a)   Unless the context otherwise requires:
 
(i)   a term has the meaning assigned to it;
 
(ii)   an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;
 
 
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(iii)   “or” is not exclusive;
 
(iv)   words in the singular include the plural, and in the plural include the singular;
 
(v)   all references in this instrument to “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed;
 
(vi)   the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
 
(vii)   “including” means “including without limitation;”
 
(viii)   provisions apply to successive events and transactions; and
 
(ix)   references to sections of or rules under the Securities Act, the Exchange Act or the Trust Indenture Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time thereunder.
 
ARTICLE 2                      
 

 
THE NOTES
 
SECTION 2.01.  
Form and Dating
 
.
 
The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture.  The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its authentication.  The Notes initially shall be issued only in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
 
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
 
(a)   The Notes shall be issued initially in the form of one or more Global Notes substantially in the form attached as Exhibit A hereto and shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee as custodian for the Depositary, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.  Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee, in accordance with written instructions given by the Holder thereof as required by Section 2.06.  Except as set forth in Section 2.06, the Global Notes may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor of the Depositary or its nominee.
 
 
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(b)   The Initial Notes are being issued by the Issuer for offer only (i) to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act (“ Rule 144A ”)) (“ QIBs ”) and (ii)  in reliance on Regulation S under the Securities Act (“ Regulation S ”).  After such initial offers, Initial Notes that are Transfer Restricted Notes may be transferred to QIBs, in reliance on Rule 144A, outside the United States pursuant to Regulation S or to the Issuer, in accordance with Section 2.16.  Initial Notes that are offered in reliance on Rule 144A shall be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A hereto (the “ QIB Global Note ”) deposited with the Trustee, as Note Custodian, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.  Initial Notes that are offered in offshore transactions in reliance on Regulation S shall be issued in the form of one or more Global Notes substantially in the form set forth in Exhibit A hereto (the “ Regulation S Global Note ”) deposited with the Trustee, as Note Custodian, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.  The QIB Global Note and the Regulation S Global Note shall each be issued with separate CUSIP numbers.  The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Note Custodian.  Transfers of Notes between QIBs and to or by purchasers pursuant to Regulation S shall be represented by appropriate increases and decreases to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.16
 
(c)   Section 2.01(b) shall apply only to Global Notes deposited with or on behalf of the Depositary.  The Issuer shall execute and the Trustee shall, upon receipt of an Issuer Order, in accordance with Section 2.01(b) and Section 2.02, authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depositary or the nominee of the Depositary and (ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Trustee as custodian for the Depositary.  The Trustee shall have no responsibility or obligation to any Holder, any member of (or a Participant in) DTC or any other Person with respect to the accuracy of the records of DTC (or its nominee) or of any Participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to the Notes.  The Trustee may rely (and shall be fully protected in relying) upon information furnished by DTC with respect to its members, Participants and any Beneficial Owners in the Notes
 
(d)   Notes issued in certificated form, including Global Notes, shall be substantially in the form of Exhibit A hereto.
 
SECTION 2.02.  
Execution and Authentication
 
.
 
(a)   An Officer shall sign the Notes for the Issuer by manual or facsimile signature.
 
(b)   If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
 
(c)   A Note shall not be valid until authenticated by the manual signature of an authorized signatory of the Trustee.  The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
 
(d)   The Trustee shall, upon a written Issuer Order signed by one Officer (an “ Authentication Order ”), directing the Trustee to authenticate and deliver the Notes and certifying that all conditions precedent to the issuance of the Notes contained herein have been complied with, authenticate Notes for original issue up to the aggregate principal amount stated in paragraph 4 of the Notes.  The aggregate principal amount of Notes outstanding at any time may not exceed such amount except as provided in Section 2.17.
 
 
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(e)   The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate Notes.  Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with Holders or the Issuer or an Affiliate of the Issuer.
 
SECTION 2.03.  
Registrar; Paying Agent.
 
 
 
(a)   The Issuer shall maintain (i) an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and (ii) an office or agency where Notes may be presented for payment (“ Paying Agent ”).  The Registrar shall keep a register of the Notes (the “ Note Register ”) and of their transfer and exchange.  The Issuer may appoint one or more co-registrars and one or more additional paying agents; provided, however , that at all times there shall be only one Note Register.  The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The Issuer may change any Paying Agent or Registrar without notice to any Holder.  The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  The Issuer or any of its Restricted Subsidiaries may act as Paying Agent or Registrar.
 
(b)   The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture.  The agreement shall implement the provisions of this Indenture that relate to such Agent.  The Issuer shall notify the Trustee of the name and address of any such Agent.
 
(c)   The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent and initially appoints the Corporate Trust Office of the Trustee as the office or agency of the Issuer for such purposes and as the office or agency of the Issuer where notices  and demands to or upon the Issuer in respect of the Notes and this Indenture may be served and the Trustee as the agent of the Issuer to receive such notices and demands.  The Issuer initially appoints DTC to act as the Depositary with respect to the Global Notes.
 
SECTION 2.04.  
Paying Agent to Hold Money in Trust
 
.
 
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment.  While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money.  If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon the  occurrence of events specified in Section 6.01(h), the Trustee shall serve as Paying Agent for the Notes.
 
SECTION 2.05.  
Holder Lists
 
.
 
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders.  If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven (7)  Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders, including the  aggregate principal amount of the Notes held by each Holder thereof.
 
 
 
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SECTION 2.06.  
Book-Entry Provisions for Global Securities
 

 
(a)   Each Transfer Restricted Global Note shall (i) be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as required by Section 2.06(e).
 
Members of, or Participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Note, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
 
(b)   Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their respective nominees.  Interests of Beneficial Owners in a Global Note may be transferred in accordance with Section 2.16 and the rules and procedures of the Depositary.  In addition, Certificated Notes shall be transferred to all Beneficial Owners in exchange for their beneficial interests if (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary is not appointed by the Issuer within ninety (90) days of such notice or (ii) an Event of Default of which a Responsible Officer of the Trustee has actual notice has occurred and is continuing and the Registrar has received a request from the Depositary to issue such Certificated Notes.
 
(c)   In connection with the transfer of the entire Global Note to Beneficial Owners pursuant to clause (b) of this Section 2.06, such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall upon receipt of an Issuer Order authenticate and deliver, to each Beneficial Owner identified by the Depositary in exchange for its beneficial interest in such Global Note an equal aggregate principal amount of Certificated Notes of authorized denominations.
 
(d)   The Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold an interest through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
 
(e)   Legends .  The following legends shall appear on the face of all Global Notes and Certificated Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:
 
(i)   Restricted Notes Legend .  Unless and until the Issuer determines that the following legend and the related restrictions on transfer are not required in order to maintain compliance with the provisions of the Securities Act and there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee and a letter of representation of the Issuer reasonably satisfactory to the Trustee to that effect, each Global Note and each Certificated Note (and all Notes issued in exchange therefor or substitution therefor) shall bear the legend in substantially the following form:
 
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND, ACCORDINGLY,
 
 
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MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS ‘‘OFFSHORE TRANSACTION,’’ ‘‘UNITED STATES’’ AND ‘‘U.S. PERSON’’ HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”
.
 
(ii)   Global Note Legend .  Each Global Note, Transfer Restricted Global Note or Unrestricted Global Note, shall bear a legend in substantially the following form:
 
“THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
 
 
33
 
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
(f)   At such time as all beneficial interests in Global Notes have been exchanged for Certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Certificated Notes, redeemed, repurchased or cancelled, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note, by the Trustee or the Note Custodian, at the direction of the Trustee, to reflect such reduction.
 
(g)   General provisions relating to transfers and exchanges:
 
(i)   To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Certificated Notes at the Registrar’s request
 
(ii)   No service charge shall be made to a Holder for any registration of transfer, exchange, or redemption, but the Issuer may require payment of a sum sufficient to cover any stamp or transfer tax or similar governmental charge payable in connection therewith (other than any such stamp or transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.02, 2.10, 3.06, 4.08, 4.12, 4.14 and 9.04).
 
(iii)   All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes shall, upon execution by the Issuer and authentication by the Trustee in accordance with the provisions hereof, be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange.
 
(iv)   The Registrar shall not be required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of fifteen (15) days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.
 
(v)   Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and neither the Trustee, any Agent nor the Issuer shall be affected by notice to the contrary.
 
(vi)   The Trustee shall authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.02.  Except as provided in Section 2.06(b), neither the Trustee nor the Registrar shall authenticate or deliver any Certificated Note in exchange for a Global Note.
 
(vii)   Each Holder agrees to provide indemnity to the Issuer and the Trustee, in such form and amount as is acceptable to the Issuer or the Trustee in their respective sole discretion, against any liability that may result from the transfer, exchange or assignment of such Holder’s
 
 
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                                                                                                                        Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law.
 
(viii)   The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or Beneficial Owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
 
SECTION 2.07.  
Replacement Notes.
 
 
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Issuer Order, shall authenticate a replacement Note if the Trustee’s requirements are met.  If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.  The Issuer And the Trustee may charge a Holder for their expenses in replacing a Note.
 
Every replacement Note is an additional obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
 
SECTION 2.08.  
Outstanding Notes.
 
 
(a)   The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those set forth in this Section 2.08 as not outstanding.  Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
 
(b)   If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
 
(c)   If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
 
(d)   If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a “ Redemption Date ” or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
 
SECTION 2.09.  
Treasury Notes.
 
 
In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes shown on the register as being owned shall be so disregarded.    Notwithstanding the foregoing, Notes that are to be acquired by the Issuer or an Affiliate of the Issuer pursuant to an exchange offer, tender offer or other
 
 
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                                                                                                                                      agreement shall not be deemed to be owned by such entity until legal title to such Notes passes to such entity.
 
SECTION 2.10.  
Temporary Notes.
 
 
Until Certificated Notes are ready for delivery, the Issuer may prepare and the Trustee shall, upon receipt of an Issuer Order, authenticate temporary Notes.  Temporary Notes shall be substantially in the form of Certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes.  Without unreasonable delay, the Issuer shall prepare and the Trustee shall, upon receipt of an Issuer Order authenticate Certificated Notes in exchange for temporary Notes.
 
SECTION 2.11.  
Cancellation.
 
 
The Issuer at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder or which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee upon receipt of an Issuer Order.  All Notes surrendered for registration of transfer, exchange or payment, if surrendered to any Person other than the Trustee, shall be delivered to the Trustee.  The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation.  Subject to Section 2.07, the Issuer may not issue new Notes to replace Notes that they have redeemed or paid or that have been delivered to the Trustee for cancellation.  All cancelled Notes held by the Trustee shall be disposed of in accordance with its customary practice, and, upon written request, the Trustee shall deliver a certificate to the Issuer stating that such Notes have been cancelled.
 
SECTION 2.12.  
Defaulted Interest.
 
 
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, which date shall be at the earliest practicable date but in all events at least five (5) Business Days prior to the payment date, in each case at the rate provided in the Notes and in Section 4.01.  The Issuer shall fix or cause to be fixed each such special record date and payment date and shall promptly thereafter notify the Trustee in writing of any such date.  At least fifteen (15) days before the special record date, the Issuer (or the Trustee, in the name and at the expense of the Issuer) shall mail or cause to be mailed to Holders with a copy to the Trustee, if applicable, a notice that states the special record date, the related payment date and the amount of such interest to be paid.
 
SECTION 2.13.  
Record Date.
 
 
The Issuer shall fix a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture.
 
SECTION 2.14.  
Computation of Interest.
 
 
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months
 
SECTION 2.15.  
CUSIP Number.
 
 
The Issuer in issuing the Notes may use a “CUSIP” and/or ISIN or other similar number, and if it does so, the Issuer may use the CUSIP and/or ISIN or other similar number in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is
 
 
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                                                                                                                                             made as to the correctness or accuracy of the CUSIP and/or ISIN or other similar number printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes.  The Issuer shall promptly notify the Trustee of any change in the CUSIP and/or ISIN or other similar number.
 
SECTION 2.16.  
Special Transfer Provisions.
 
 
Unless and until the Restricted Notes Legend is no longer required pursuant to Section 2.06(e), the following provisions shall apply:
 
(a)   Transfers to QIBs .  The following provisions shall apply with respect to the registration of any proposed transfer of a Transfer Restricted Note (other than pursuant to Regulation S).
 
(i)   The Registrar shall register the transfer of a Transfer Restricted Note by a Holder to a QIB if such transfer is being made by a proposed transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit C .
 
(ii)   If the proposed transferee is an Agent Member and the Transfer Restricted Note to be transferred consists of an interest in the Regulation S Global Note, upon receipt by the Registrar of (x) the items required by paragraph (1) above and (y) instructions given in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the QIB Global Note in an amount equal to the principal amount of the beneficial interest in the Regulation S Global Note to be so transferred, and the Registrar shall reflect on its books and records the date and an appropriate decrease in the principal amount of such Regulation S Global Note.
 
(b)   Transfers Pursuant to Regulation S.   The following provisions shall apply with respect to registration of any proposed transfer of a Transfer Restricted Note pursuant to Regulation S:
 
(i)   The Registrar shall register any proposed transfer of a Transfer Restricted Note pursuant to Regulation S by a Holder upon receipt of (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit D from the proposed transferor.
 
(ii)   If the proposed transferee is an Agent Member holding a beneficial interest in a QIB Global Note and the Transfer Restricted Note to be transferred consists of an interest in a QIB Global Note, upon receipt by the Registrar of (x) the letter, if any, required by paragraph (i) above and (y) instructions in accordance with the Depositary’s and the Registrar’s procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in the QIB Global Note to be transferred, and the Registrar shall reflect on its books and records the date and an appropriate decrease in the principal amount of the QIB Global Note.
 
(c)   Restricted Notes Legend.   Upon the transfer, exchange or replacement of Unrestricted Notes, the Registrar shall deliver Unrestricted Notes that do not bear the Restricted Notes Legend.  Upon the transfer, exchange or replacement of Transfer Restricted Notes, the Registrar shall deliver only Transfer Restricted Notes that bear the Restricted Notes Legend unless the Restricted Notes Legend is no longer required by Section 2.06(e), or the Issuer determines and there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee and a letter of representation of the Issuer reasonably satis-
 
 
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                                                                                                                                  factory to the Trustee to the effect that neither such legend nor the related restrictions on transfer are required or appropriate in order to ensure that subsequent transfers of the Notes are effected in compliance with the Securities Act.
 
(d)   General .  By its acceptance of any Note bearing the Restricted Notes Legend, each Holder of such a Note acknowledges receipt of a Transfer Restricted Note with restrictions on transfer of such Note set forth in this Indenture and in the Restricted Notes Legend and agrees that it shall transfer such Note only as provided in this Indenture until such time as the Restricted Notes Legend is no longer required pursuant to Section 2.06(e) and such Holder exchanges such a Transfer Restricted Note for an Unrestricted Note. The Registrar shall not register a transfer of any Note unless such transfer complies with the restrictions on transfer of such Note set forth in this Indenture. In connection with any transfer of Notes, each Holder agrees by its acceptance of the Notes to furnish the Registrar or the Issuer such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act until such time as the Restricted Notes Legend is no longer required pursuant to Section 2.06(e) and such Holder exchanges such a Transfer Restricted Note for an Unrestricted Note; provided that the Registrar shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such certifications, legal opinions or other information.
 
The Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.16.
 
SECTION 2.17.  
Issuance of Additional Notes.
 
 
The Issuer shall be entitled to issue Additional Notes under this Indenture that shall have identical terms as the Initial Notes, provided that the following may be different: the date of issuance, issue price, amount of interest payable on the first interest payment date applicable thereto and any customary escrow provisions, and additional interest with respect thereto; provided that such issuance is not otherwise prohibited by the terms of this Indenture, including Section 4.07.  The Initial Notes and any Additional Notes shall be, without limitation, treated as a single class for all purposes under this Indenture.
 
With respect to any Additional Notes, the Issuer shall set forth in a resolution of its Board of Directors and in an Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information:
 
(i)   the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
 
(ii)   the issue price, the Issue Date, the CUSIP number of such Additional Notes, the first interest payment date and the amount of interest payable on such first interest payment date applicable thereto and the date from which interest shall accrue; and
 
(iii)   whether such Additional Notes shall be Transfer Restricted Notes.
 
 
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ARTICLE 3                      
 

 
REDEMPTION AND PREPAYMENT
 
SECTION 3.01.  
Notices to Trustee.
 
 
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07, it shall furnish to the Trustee, at least forty-five (45) days (or such shorter period as is acceptable to the Trustee) before a date fixed for redemption, an Officers’ Certificate setting forth (i) the Section of this Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of Notes to be redeemed and (iv) the Redemption Price.
 
SECTION 3.02.  
Selection of Notes to be Redeemed.
 
 
If less than all the Notes issued hereunder are to be redeemed at any time, the Trustee shall select the Notes to be redeemed on a pro rata basis, by lot or by such method as complies with applicable legal requirements and, as applicable, the procedures of the DTC; provided that no Notes of $2,000 or less shall be redeemed in part.  If any Note is to be redeemed in part only, the notice of redemption that relates to such Note shall state the portion of the principal amount thereof to be redeemed.  A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note.  Notes called for redemption become due on the date fixed for redemption.  On and after the Redemption Date, interest shall cease to accrue on Notes or portions of them called for redemption.  The Trustee shall make the selection from the Notes outstanding and not previously called for redemption and shall promptly notify the Issuer in writing of the Notes selected for redemption.  The Trustee may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of the Notes that have denominations larger than $2,000.
 
SECTION 3.03.  
Notice of Redemption.
 
 
Subject to Section 3.09, at least 30 days but not more than 60 days before a Redemption Date, the Issuer shall mail or cause to be mailed by first class mail (and, to the extent permitted by applicable procedures or regulations, electronically), a notice of redemption to each Holder whose Notes are to be redeemed at its registered address.
 
The notice shall identify the Notes to be redeemed and shall state:
 
(a)   the Redemption Date;
 
(b)   the Redemption Price;
 
(c)   if any Note is being redeemed in part, the portion of the principal amount of such Notes to be redeemed and that, after the Redemption Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;
 
(d)   the name, telephone number and address of the Paying Agent;
 
(e)   that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
 
 
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(f)   that, unless the Issuer defaults in making such redemption payment, interest, if any on Notes called for redemption ceases to accrue on and after the Redemption Date;
 
(g)   the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
 
(h)   that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
 
At the Issuer’s written request, the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however , that the Issuer shall have delivered to the Trustee at least 45 days prior to the Redemption Date (or such shorter period as is acceptable to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in the notices as provided in the preceding paragraph.  The notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not a Holder receives such notice.  In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note shall not affect the validity of the proceeding for the redemption of any other Note.
 
SECTION 3.04.  
Effect of Notice of Redemption.
 
 
Once notice of redemption is mailed in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the Redemption Date at the Redemption Price plus accrued and unpaid interest, if any, to such date.  A notice of redemption may not be conditional.
 
SECTION 3.05.  
Deposit of Redemption Price.
 
 
On or before 10:00 a.m. (New York City time) on each Redemption Date or the date on which Notes must be accepted for purchase pursuant to Section 4.08 or 4.11, the Issuer shall deposit with the Trustee or with the Paying Agent (or, if the Issuer or a Subsidiary of the Issuer is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of and accrued and unpaid interest, if any, on all Notes to be redeemed or purchased on that date.  The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of (including any Applicable Premium), and accrued interest, if any, on, all Notes to be redeemed or purchased.
 
SECTION 3.06.  
Notes Redeemed in Part.
 
 
Upon surrender of a Note that is redeemed in part, the Issuer shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
 
SECTION 3.07.  
Optional Redemption.
 
 
Except as set forth in subparagraphs (a) and (c) below, the Notes are not redeemable before November 1, 2014.
 
(a)   At any time prior to November 1, 2014 the Issuer may redeem all or a part of the Notes (which includes Additional Notes, if any), at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, the Redemption Date, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
 
 
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(b)   The Notes will be redeemable at the option of the Issuer, in whole or in part, at any time on or after November 1, 2014 at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest thereon, if any,  to the applicable Redemption Date (subject to the rights of Holders of Notes of record on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the twelve-month period beginning on November 1 of the years indicated below:
 
Year
Redemption Price
2014
103.813%
2015
101.906%
2016 and thereafter
100.000%

(c)   Notwithstanding the provisions of subparagraphs (a) and (b) of this Section 3.07, at any time on or prior to November 1, 2013 the Issuer may at its option on any one or more occasions, redeem Notes in an aggregate principal amount not to exceed 35% of the aggregate principal amount of Notes issued under this Indenture (which includes the Additional Notes, if any) at a redemption price of 107.625% of the principal amount thereof, plus accrued and unpaid interest, if any, to, the Redemption Date, with an amount equal to the Net Cash Proceeds of one or more Equity Offerings; provided , that:
 
(1)   at least 65% of the aggregate principal amount of Notes issued under this Indenture (which includes the Additional Notes, if any) remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Issuer and its Subsidiaries); and
 
(2)   the redemption must occur within 90 days of the date of the closing of  such Equity Offering.
 
(d)   Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
 
SECTION 3.08.  
Mandatory Redemption.
 
 
Except as set forth in Sections 4.08 and 4.11, the Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
 
SECTION 3.09.  
Offer to Purchase.
 
 
(a)   In the event that, pursuant to Section 4.08 or Section 4.11, the Issuer shall be required to commence an offer to all Holders to purchase Notes and, at the Issuer’s option, holders of other pari passu Indebtedness (each an “ Offer to Purchase ”), it shall follow the procedures specified below.
 
(b)   The Offer to Purchase shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “ Offer Period ”).  No later than five Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Issuer shall purchase the principal amount of Notes required to be purchased pursuant to Section 4.08 or Section 4.11 (the “ Offer Amount ”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Offer to Purchase.  Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
 
 
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If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Offer to Purchase.
 
Upon the commencement of the Offer to Purchase, the Issuer shall send, by first class mail, a notice to each of the Holders, which shall not be later than 10 days after the Issuer becomes obligated to make an Offer to Purchase with a copy to the Trustee.  The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase.  The Offer to Purchase shall be made to all Holders.  The notice, which shall govern the terms of the Offer to Purchase, shall state:
 
(1)   that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.08 or 4.11, as the case may be, and the length of time the Offer to Purchase shall remain open;
 
(2)   that either (a) in the case of a Change of Control Offer, a Change of Control has occurred and that such noteholder has the right to require the Issuer to purchase such holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Excess Proceeds and such noteholder has the right to require the Issuer to purchase such holder’s Notes at the Offered Price, in each case, plus accrued and unpaid interest, if any, to the Purchase Date (subject to the right of holders of record on the relevant record date to receive interest on an interest payment date that is on or prior to the date fixed for purchase);
 
(3)   the Purchase Date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed);
 
(4)   the Offer Amount (including information as to any other pari passu Indebtedness included in the Offer to Purchase), the purchase price and the Purchase Date;
 
(5)   that any Note not tendered or accepted for payment shall continue to accrete or accrue interest;
 
(6)   that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest after the Purchase Date;
 
(7)   that Holders electing to have a Note purchased pursuant to an Offer to Purchase may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
 
(8)   that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
 
(9)   that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
 
 
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(10)   that, in the case of an Offer to Purchase, if the aggregate principal amount of Notes tendered by Holders into an Offer to Purchase exceeds the Offer Amount, the Trustee shall select the Notes to be purchased (i) if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are then listed or (ii) if the Notes are not so listed, on a pro rata basis, by lot or by such method as may be required pursuant to the applicable procedures of DTC (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and
 
(11)   that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
 
On or before the Purchase Date, the Issuer shall, to the extent lawful, accept for payment, in accordance with clause (10) above, the Offer Amount of Notes or portions thereof tendered pursuant to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.09.  The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon written request from the Issuer shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered.  Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof.  The Issuer shall publicly announce the results of the Offer to Purchase on the Purchase Date.
 
Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Section 3.01 through 3.06.
 
ARTICLE 4                      
 

 
COVENANTS
 
SECTION 4.01.  
Payment of Notes.
 
 
The Issuer shall pay or cause to be paid the principal of, premium, if any, interest on, the Notes on the dates and in the manner provided in the Notes and in this Indenture.  Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all such principal, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on that date.  Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
 
SECTION 4.02.  
Maintenance of Office or Agency.
 
 
(a)   The Issuer shall maintain an office or agency (which unless otherwise provided will be the office of the Trustee) where Notes may be presented or surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served.  The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrend-
 
 
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ers, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
 
(b)   The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.  The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
(c)   The Issuer hereby designates the Corporate Trust Office of the Trustee, as one such office, drop facility or agency of the Issuer in accordance with Section 4.02(a).
 
SECTION 4.03.  
Reports.
 
 
(a)   Whether or not the Issuer is then subject to Section 13(a) or 15(d) of the Exchange Act, the Issuer will electronically file with the Commission, so long as the Notes are outstanding, the annual reports, quarterly reports and other periodic reports that the Issuer would be required to file with the Commission pursuant to Section 13(a) or 15(d) if the Issuer were so subject, and such documents will be filed with the Commission on or prior to the respective dates (the “ Required Filing Dates ”) by which the Issuer would be required so to file such documents if the Issuer were so subject, unless, in any case, if such filings are not then permitted by the Commission.
 
(b)   If such filings with the Commission are not then permitted by the Commission, or such filings are not generally available on the Internet free of charge, the Issuer will, within 15 days of each Required Filing Date, transmit by mail to noteholders, as their names and addresses appear in the Note register, without cost to such noteholders, and file with the Trustee copies of, the annual reports, quarterly reports and other periodic reports that the Issuer would be required to file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act if the Issuer were subject to such Section 13(a) or 15(d), and, promptly upon written request, supply copies of such documents to any prospective holder or beneficial owner at the Issuer’s cost.
 
(c)   So long as the rules and regulations of the Commission would allow (including pursuant to any applicable exemptive relief) the Issuer to file periodic reports or information (if they were required by the Exchange Act to file such reports or information) on a consolidated or combined basis, the Issuer will be deemed to have satisfied their requirements in the above paragraphs if the Issuer files the reports and other information of the types otherwise so required within the applicable time periods.
 
(d)   The Issuer shall at all times comply with Trust Indenture Act § 314(a).
 
(e)   Should the Issuer deliver to the Trustee any such information, reports or certificates or any annual reports, information, documents and other reports pursuant to Trust Indenture Act § 314(a), delivery of such information, reports or certificates or any annual reports, information, documents and other reports 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 Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
 
SECTION 4.04.  
Compliance Certificate.
 
 
(a)   The Issuer and each Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Issuer and its Sub-
 
 
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                                                                                                                                   sidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Issuer is taking or proposes to take with respect thereto.  For the purposes of this paragraph, such compliance shall be determined without regard to any grace period or requirement of notice provided under this Indenture.  The Issuer shall also comply with Trust Indenture Act Section 314(a)(4).
 
(b)   The Issuer shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith and in any event within 30 Business Days upon any Officer becoming aware of any Default or Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Issuer is taking or proposes to take with respect thereto.
 
SECTION 4.05.  
Restricted Payments.
 
 
(a)   The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make a Restricted Payment if:
 
(1)   a Default has occurred and is continuing or would result therefrom; or
 
(2)   the Issuer could not incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
 
(3)   the aggregate amount of such Restricted Payment, together with all other Restricted Payments (the amount of any Restricted Payments made in assets other than cash to be valued at its Fair Market Value) declared or made since the Issue Date (other than any Restricted Payment described in clauses(2) through (10) of Section 4.05(b)), would exceed the sum (the “ Basket ”) of
 
(A)           50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from July 1, 2010 to the end of the most recent fiscal quarter prior to the date of such Restricted Payment for which internal financial statements are available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); plus
 
(B)           the aggregate Net Cash Proceeds from capital contributions or the issuance and sale (other than to a Subsidiary of the Issuer) of, and the Fair Market Value of any property received in exchange for, Qualified Stock, or as a capital contribution,  received by the Issuer subsequent to the Issue Date (other than Contribution Amounts, Excluded Contributions, and amounts received in exchange for the issuance of Designated Preferred Stock) or from the issue or sale of debt securities of the Issuer that have been converted or exchanged into Qualified Stock, together with the aggregate cash and Temporary Cash Investments received by the Issuer or any of its Restricted Subsidiaries at the time of such conversion or exchange; provided that for purposes of determining the Fair
 
 
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                                                                                                                          Market Value of property received (other than of any asset with a public trading market) in excess of $25.0 million shall be determined by an Independent Financial Advisor, which determination shall be evidenced by an opinion addressed to the Issuer and delivered to the Trustee; plus
 
(C)           the amount by which Indebtedness or Disqualified Stock incurred or issued subsequent to the Issue Date is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Stock (less the amount of any cash, or the Fair Market Value of any other asset, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange); provided that such amount shall not exceed the aggregate Net Cash Proceeds received by the Issuer or any Restricted Subsidiary after the Issue Date from the issuance and sale (other than to a Subsidiary of the Issuer) of such Indebtedness or Disqualified Stock; plus
 
(D)           to the extent not included in the calculation of the Consolidated Net Income referred to in Section 4.05(a)(3)(A), an amount equal to, without duplication:
 
(I)           100% of the aggregate net proceeds (including the Fair Market Value of assets) received by the Issuer or any Restricted Subsidiary upon the sale or other disposition of any Investment (other than a Permitted Investment) made by the Issuer or any Restricted Subsidiary since the Issue Date; plus
 
(II)           the net reduction in Investments (other than Permitted Investments) in any Person resulting from dividends, repayments of loans or advances or other Transfers of assets subsequent to the Issue Date, in each case to the Issuer or any Restricted Subsidiary from such Person (including by way of such Person becoming a Restricted Subsidiary); plus
 
(III)           if the Basket was reduced as the result of the designation of a Restricted Subsidiary as an Unrestricted Subsidiary, the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is redesignated, or liquidated or merged into, a Restricted Subsidiary;
 
provided that the foregoing shall not exceed, in the aggregate, the amount of all Investments which previously reduced the Basket.
 
(b)   The provisions of Section 4.05(a) shall not prohibit the following:
 
(1)   dividends paid within 90 days after the date of declaration thereof if at such date of declaration such dividend would have been permitted under this Indenture;
 
(2)   any Restricted Payment (i) (a) made in exchange for, or out of the proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the Issuer) of, Qualified Stock (“Refunding Capital Stock”), and (b) if the Restricted Payment is the repurchase, redemption, retirement or other acquisition of equity interests (“Retired Capital Stock”), then if immediately prior to the Restricted Payment with respect to such Retired Capital Stock the declaration and payment of dividends on the Retired Capital Stock was permitted pursuant to clause (8) immediately below or sub clause (iii) of this clause (2) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement, (ii) with respect to any Subordinated
 
 
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                                                                                                                          Obligations, in exchange for or out of the proceeds of the substantially concurrent incurrence and sale (other than to a Subsidiary of the Issuer) of Refinancing Indebtedness thereof; provided that (x) no such exchange or issuance and sale shall increase the Basket and (y) no Default has occurred and is continuing or would occur as a consequence thereof, (iii), to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the Issue Date; provided that (x) the Issuer could have incurred at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception at the time of the issuance of such Designated Preferred Stock and (y) the aggregate amount of dividends paid pursuant to this sub-clause (iii) shall not exceed the aggregate amount of cash actually received by the Issuer from the sale of such Designated Preferred Stock; and (iv) made with Excluded Contributions;
 
(3)   payments by the Issuer or any Restricted Subsidiary in respect of Indebtedness of the Issuer or any Restricted Subsidiary owed to the Issuer or another Restricted Subsidiary;
 
(4)   repurchases of Capital Stock deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price thereof and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to an employee to pay for the taxes payable by such employee upon such grant or award, including upon the vesting thereof;
 
(5)   cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Issuer; provided , however , that any such cash payment shall not be for the purpose of evading the limitation of the covenant described under this subheading (as determined in good faith by the Board of Directors);
 
(6)   so long as no Default has occurred and is continuing, the purchase, redemption or other acquisition of shares of Capital Stock of the Issuer or any of its Subsidiaries from consultants, former consultants, employees, former employees, directors or former directors of the Issuer or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements or otherwise (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock, or such Capital Stock vests; provided , however , that the aggregate amount of such Restricted Payments pursuant to this clause (6) (excluding amounts representing cancellation of Indebtedness) shall not exceed $10.0 million in any calendar year (with unused amounts in any calendar year being carried over to the next succeeding calendar year);
 
(7)   repurchases of Capital Stock in one or more transactions in an aggregate amount not to exceed $100.0 million;
 
(8)   the declaration and payments of dividends on Disqualified Stock issued pursuant to Section 4.07; so long as at the time of payment of such dividend, no Default shall have occurred and be continuing (or result therefrom);
 
(9)   in addition to any Restricted Payments that may otherwise be permitted by this covenant, the Issuer and its Restricted Subsidiaries, in the aggregate, may make Restricted Payments not to exceed $75.0 million;
 
 
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(10)   the declaration or distribution of shares of an Unrestricted Subsidiary to the extent any Investment in such Unrestricted Subsidiary was made pursuant to the Basket or pursuant to clause (9) of this Section 4.05(b); or
 
(11)   the repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligations in accordance with the provisions similar to those in Sections 4.11 and 4.08  provided that all Notes tendered by Holders in connection with a Change of Control Offer or Net Proceeds Offer, as applicable, have been repurchased, redeemed, acquired or retired for value
 
SECTION 4.06.  
Dividend and Other Payment Restrictions Affecting Subsidiaries.
 
 
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Issuer to:
 
(a)   pay dividends or make any other distributions on its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
 
(b)   make any loans or advances to, or guarantee any Indebtedness of, the Issuer or any other Restricted Subsidiary, or
 
(c)   Transfer any of its assets to the Issuer or any other Restricted Subsidiary,
 
                except:
 
(1)   any encumbrance or restriction pursuant to an agreement as in effect at or entered into on the Issue Date (including this Indenture and the Credit Facilities), as such encumbrance or restriction is in effect on the Issue Date;
 
(2)   any Lien permitted under this Indenture that restricts the Transfer of assets which are subject to such Lien;
 
(3)   restrictions on the Transfer of assets imposed under any agreement to sell such assets permitted under this Indenture pending the closing of such sale;
 
(4)   any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the assets of any Person, other than the Person or the assets of the Person so acquired;
 
(5)   customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements that restrict the Transfer of ownership interests in or the payment of dividends or distributions from such partnership, limited liability company, joint venture or similar Person;
 
(6)   Purchase Money Indebtedness and Capital Lease Obligations incurred pursuant to clause (8) of Section 4.07(b) that impose restrictions of the nature described in clause (c) above on the assets acquired;
 
 
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(7)   any encumbrances or restrictions imposed by any amendments or Refinancings of the contracts, instruments or obligations referred to in clause (1), (4) or (6) above or clause (11) below; provided that such amendments or Refinancings are, in the good faith judgment of the Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or Refinancing;
 
(8)   covenants to maintain net worth, total assets or liquidity and similar financial responsibility covenants under contracts with customers or suppliers in the ordinary course of business;
 
(9)   any such encumbrance or restriction consisting of customary provisions in leases governing leasehold interests to the extent such provisions restrict the Transfer of the lease or the property leased thereunder;
 
(10)   customary provisions in leases, subleases, licenses, sublicenses and service contracts in the ordinary course of business of the Issuer and the Restricted Subsidiaries between the Issuer or any Restricted Subsidiary and its customers and other contracts restricting the assignment thereof;
 
(11)   any agreement as in effect at the time any Person becomes a Subsidiary of the Issuer; provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary;
 
(12)   any agreement with respect to Indebtedness of a Foreign Subsidiary permitted under this Indenture so long as such prohibitions or limitations are only with respect to the properties and revenues of such Subsidiary or any Subsidiary of such Foreign Subsidiary;
 
(13)   indentures, agreements, notes, instruments and other documents governing Indebtedness permitted to be incurred under this Indenture so long as the restrictions imposed pursuant to such Indebtedness are no more restrictive, taken as a whole, than those restrictions contained in the Credit Facilities on the Issue Date; and
 
(14)   any restriction imposed by applicable law, rule, regulation or order.
 
SECTION 4.07.  
Incurrence of Indebtedness.
 
 
(a)   The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, incur, directly or indirectly, any Indebtedness; provided that the Issuer or any Guarantor may incur Indebtedness if, immediately after giving effect to such incurrence, the Consolidated Coverage Ratio is at least 2.0 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, and the application of proceeds therefrom, had occurred at the beginning of such four-quarter period (this proviso, the “ Coverage Ratio Exception ”).
 
(b)   Section 4.07(a) will not prohibit incurrence of the following Indebtedness (collectively, “ Permitted Indebtedness ”):
 
(1)   the Notes issued on the Issue Date and any related Guarantees;
 
(2)   Indebtedness of the Issuer or any Restricted Subsidiary to the extent outstanding on the Issue Date (other than Indebtedness under clauses (1) and (3) of this Section 4.07(b));
 
 
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(3)   Indebtedness of the Issuer or any Restricted Subsidiary under Credit Facilities in an aggregate amount at any time outstanding pursuant to this clause (3) not to exceed the greater of:
 
(A)           $350.0 million; and
 
(B)           30% of the net book value of the accounts receivable of the Issuer and the Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP and calculated on a pro forma basis to give effect to any acquisitions or dispositions of assets made in connection with any transaction on the date of calculation;
 
(4)   Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the Coverage Ratio Exception, clause (1) of this Section 4.07(b), clause (2) of this Section 4.07(b) (other than any Indebtedness owed to the Issuer or any of its Subsidiaries), this clause (4), clause (13) of this Section 4.07(b) or clause (20) of this Section 4.07(b);
 
(5)   Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or a Restricted Subsidiary; provided that
 
(A)           any such Indebtedness owed by the Issuer shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Guarantor (other than to the Issuer or any other Guarantor) shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor; and
 
(B)           if such Indebtedness is held by a Person other than the Issuer or a Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to have incurred Indebtedness not permitted by this clause (5);
 
(6)   (x) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio Exception or is Permitted Indebtedness;
 
(7)   Hedging Obligations;
 
(8)   Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any assets (including capital expenditures of the Issuer or any Restricted Subsidiary), and Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this clause (8) not to exceed the greater of (x) $125.0 million and (y) 15.0% of Consolidated Net Tangible Assets;
 
(9)   Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed at any time outstanding pursuant to this clause (9) not to exceed $75.0 million;
 
(10)   Indebtedness of the Issuer or any of its Restricted Subsidiaries represented by worker’s compensation claims and other statutory or regulatory obligations, self-insurance obligations, tender, bid, performance, government contract, surety or appeal bonds, standby letters of credit and warranty and contractual service obligations of like nature, trade letters of credit or do-
 
 
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                                                                                                                                             cumentary letters of credit, in each case to the extent incurred in the ordinary course of business of the Issuer or such Restricted Subsidiary;
 
(11)   customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the acquisition or disposition of any assets of the Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition);
 
(12)   obligations in respect of performance bonds and completion, guarantee, surety and similar bonds in the ordinary course of business;
 
(13)   Acquired Indebtedness; provided that after giving effect to such acquisition or merger, either
               
                 (A)           the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
 
(B)            the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
 
(14)   Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
 
(15)   Indebtedness consisting of Guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of sales of goods in the ordinary course of business;
 
(16)   Indebtedness under surety bonds obtained in connection with the Construction Business;
 
(17)   Indebtedness owing by the Issuer to CIS consisting of all or any portion of the proceeds of any payments made by the Issuer or Permitted Insureds to CIS as premiums for the insurance policies issued by CIS to the Issuer or such Permitted Insureds, respectively;
 
(18)   additional Indebtedness in an aggregate principal amount not to exceed $75.0 million at any time outstanding pursuant to this clause (18);
 
(19)   Indebtedness incurred to finance insurance premiums not to exceed $25.0 million aggregate outstanding at any time;
 
(20)   Contribution Indebtedness;
 
(21)   Indebtedness from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within 10 business days of its incurrence; and
 
(22)   the incurrence of Indebtedness by Unrestricted Subsidiaries.
 
(c)   For purposes of determining compliance with this Section 4.07, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described
 
 
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                                                                                                                                                   in clauses (1) through (22) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described and may later reclassify such item into any one or more of the categories of Indebtedness described above and such Indebtedness will be deemed to be incurred under the category into which it was last reclassified (provided that at the time of reclassification it meets the criteria in such category or categories; provided further that Indebtedness under clause (i) of the definition of “Credit Facilities” outstanding on the Issue Date will be deemed to have been incurred in reliance on clause (3) above).  The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this covenant will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies.  In determining the amount of Indebtedness incurred or outstanding, the principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as such other Person could have incurred such obligation hereunder.
 
(d)   Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock.
 
(e)   For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 4.07, any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this section) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness.
 
(f)   Notwithstanding the provisions of clauses (a) through (e) of this Section 4.07, the Issuer will not, and will not permit any other Guarantor to, incur any Indebtedness that purports to be by its terms (or by the terms of any agreement or instrument governing such Indebtedness) subordinated in right of payment to any other Indebtedness of the Issuer or of such other Guarantor, as the case may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the Notes or the Guarantee of such Guarantor, as applicable, to at least the same extent as such Indebtedness is subordinated in right of payment to such other Indebtedness of the Issuer or such Guarantor, as the case may be.
 
SECTION 4.08.  
Limitation on Asset Sales
 
.
 
(a)   The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate any Asset Sale unless:
 
(i)   the Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets included in such Asset Sale; and
 
(ii)   at least 75% of the total consideration received in such Asset Sale consists of cash, Temporary Cash Investments or assets referred to in clause (c) below, in each case, valued at the Fair Market Value thereof, or a combination of the foregoing.
 
For purposes of clause (ii) above, the following shall be deemed to be cash:
 
 
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(A)
the amount (without duplication) of any liability (other than Subordinated Obligations) that would be recorded on a balance sheet prepared in accordance with GAAP of the Issuer or such Restricted Subsidiary that is expressly (I) assumed by a Person other than the Issuer or a Restricted Subsidiary, or (II) is expunged by the holder of such liability, and with respect to which, in each case, the Issuer or such Restricted Subsidiary, as the case may be, is unconditionally released from further liability with respect thereto;
 
 
(B)
the amount of any obligations or securities received from such Transferee that are within 180 days repaid, converted into or sold or otherwise disposed of for cash or Temporary Cash Investments (to the extent of the cash or Temporary Cash Investments actually so received); and
 
 
(C)
any Designated Noncash Consideration received by the Issuer or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, not to exceed the greater of (x) $75.0 million or (y) 2.5% of Total Assets at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
 
If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary in connection with any Asset Sale is repaid, converted into or sold or otherwise disposed of for cash or Temporary Cash Investments (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion, sale or other disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this Section 4.08.
 
(b)   If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or a Restricted Subsidiary shall, no later than 365 days following the consummation thereof, apply an amount equal to all or any of the Net Available Proceeds therefrom as follows:
 
(i)   to repay or otherwise retire amounts owing under the Credit Facilities in accordance with the Credit Facilities;
 
(ii)   to repay or otherwise retire amounts owing under other Indebtedness (other than Subordinated Obligations) that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto; and/or
 
(iii)   to make (1) an Investment in or expenditure for assets (including Capital Stock of any Person) that replace the assets that were the subject of the Asset Sale or in assets (including Capital Stock of any Person) that will be used in the Permitted Business and (2) capital expenditures that will be used in the Permitted Business (or, in each case of (1) and (2), enter into a binding commitment for any such investment or expenditure); provided that such binding commitment shall be treated as a permitted application of the Net Available Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such investment or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period.  If the Investment or expenditure contemplated by such binding commitment is not consummated on or before the 180th day, such commitment shall be deemed not to have been a permitted application of Net Available Proceeds.
 
 
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The amount of Net Available Proceeds not applied or invested as provided in this clause (b) will constitute “ Excess Proceeds .”
 
(c)   When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Issuer will be required to make an offer to purchase from all noteholders an aggregate principal amount of Notes and, if the Issuer is required to do so under the terms of any other Indebtedness ranking pari passu with such Notes, such other Indebtedness on a pro rata basis with the Notes, equal to the amount of such Excess Proceeds (a “ Net Proceeds Offer ”) in accordance with the procedures set forth in Section 3.09.
 
The offer price for the Notes will be payable in cash and will be equal to 100% of the principal amount of the Notes tendered pursuant to a Net Proceeds Offer plus accrued and unpaid interest thereon, if any, to the date such Net Proceeds Offer is consummated (the “ Offered Price ”).  If the aggregate Offered Price of Notes validly tendered and not withdrawn by noteholders thereof exceeds the amount of Excess Proceeds, Notes to be purchased will be selected on a pro rata basis.  Upon completion of such Net Proceeds Offer in accordance with the foregoing provisions, the amount of Excess Proceeds shall be reduced to zero.
 
To the extent that the aggregate Offered Price of Notes tendered pursuant to a Net Proceeds Offer (and if applicable, the aggregate amount of pari passu Indebtedness being repaid, on a pro rata basis with the Notes) is less than the Excess Proceeds (such shortfall constituting a “ Net Proceeds Deficiency ”), the Issuer may use the Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
 
(d)   In the event of the Transfer of substantially all (but not all) of the assets of the Issuer and the Restricted Subsidiaries as an entirety to a Person in a transaction covered by and effected in accordance with Section 5.01, the Transferee shall be deemed to have sold for cash at Fair Market Value the assets of the Issuer and the 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 (with such Fair Market Value being deemed to be Net Available Proceeds for such purpose).
 
(e)   The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with any purchase of Notes pursuant to this Indenture.  To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of this compliance.
 
SECTION 4.09.  
Affiliate Transactions.
 
 
(a)   The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, in one transaction or series of related transactions, Transfer any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any affiliate of the Issuer (an “ Affiliate Transaction ”), unless the terms thereof, taken as a whole, are no less favorable to the Issuer or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person that is not such an affiliate.
 
(b)   The Board of Directors must approve each Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $20.0 million.  This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions.
 
 
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(c)   If the Issuer or any Restricted Subsidiary enters into an Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $50.0 million, then prior to the consummation of that Affiliate Transaction, the Issuer must obtain a favorable opinion from an Independent Financial Advisor that it has determined such Affiliate Transaction to be fair, from a financial point of view, to the Issuer, and deliver that opinion to the Trustee.
 
(d)   The provisions of clauses (a), (b) and (c) of this Section 4.09 shall not apply to the following:
 
(1)   transactions exclusively between, among or solely for the benefit of (i) the Issuer and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries; provided , in each case, that no affiliate of the Issuer (other than another Restricted Subsidiary) owns more than 10% of the Capital Stock in any such Restricted Subsidiary;
 
(2)   customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, and agreements to register securities of directors, officers, employees or other affiliates, in each case approved by the Board of Directors;
 
(3)   Restricted Payments which are made in accordance with Section 4.05 and Investments constituting Permitted Investments;
 
(4)   any issuance by the Issuer or any Restricted Subsidiary of Qualified Stock or any capital contribution therein and the entry into and performance of any registration rights and shareholder rights agreements;
 
(5)   transactions between the Issuer or any Subsidiary and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture;
 
(6)   transactions with a Person that is an affiliate solely because the Issuer or any Restricted Subsidiary owns Capital Stock in such Person or controls such Person;
 
(7)   purchases and sales of raw materials or Inventory in the ordinary course of business on market terms;
 
(8)   the incurrence of any Indebtedness to the extent that (i) at least 80% amount of such Indebtedness is issued to Persons that are not affiliates of the Issuer and (ii) the terms and conditions on which such affiliates purchase such Indebtedness are no less favorable, taken as a whole, to the Issuer than the terms on which Persons that are not affiliates of the Issuer purchase such Indebtedness;
 
(9)   any transactions or agreements with Affiliates in existence on the Issue Date as described in or incorporated by reference in the offering memorandum and performance of the obligations of the Issuer and its Restricted Subsidiaries as required or permitted by the terms of such transactions and agreements, including, without limitation, any amendments thereto entered into after the date of the Issue Date; provided, however, that the terms of any such amendment are not less favorable, in any material respect, to the Issuer than the terms of the relevant agreement in effect prior to any such amendment, as determined in good faith by the Board of Directors of the Issuer; or
 
 
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(10)   transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 4.09(a).
 
SECTION 4.10.  
Liens.
 
 
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Lien of any kind securing Indebtedness on any asset of the Issuer or any Restricted Subsidiary (including Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, or any income or profits therefrom or assign or convey any right to receive income therefrom, except Permitted Liens, unless the Notes and the Guarantees are secured on an equal and ratable basis with the obligations so secured until such time as such obligations are no longer secured by a Lien; provided that if the obligations so secured are subordinated in right of payment by their terms to the Notes or a Guarantee, the Lien securing such obligations will also have subordinated Lien priority by its terms to the Lien securing the Notes and the Guarantees at least to a comparable extent.
 
SECTION 4.11.  
Offer to Repurchase Upon Change of Control.
 
 
(a)   If a Change of Control occurs, each noteholder will have the right to require the Issuer to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such holder’s Notes (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 (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date fixed for redemption), in accordance with the provisions of the next paragraph.
 
(b)   Within 30 days following any Change of Control, the Issuer shall mail a notice to each noteholder, with a copy to the Trustee, in accordance with the procedures set forth in Section 3.09, that a noteholder must follow in order to have its Notes purchased
 
(c)   The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes pursuant to this Indenture.  To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under any covenant of this Indenture by virtue of this compliance.
 
SECTION 4.12.  
Corporate Existence.
 
 
Except as otherwise permitted by Article 5, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
 
SECTION 4.13.  
Additional Guarantors.
 
 
The Issuer shall cause any Subsidiary, whether currently existing or subsequently acquired or created, that Guarantees the Issuer’s obligations or the obligations of any Domestic Subsidiary (other than an Unrestricted Subsidiary) under any Credit Facility or any other Indebtedness to execute and deliver to the Trustee a Guarantee pursuant to which such Restricted Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on a senior unsecured basis.  Notwithstanding the foregoing, in the event any Guarantor is released and discharged in full from all of its obligations under
 
 
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                                                                                                                                     guarantees of any Credit Facility, then the Guarantee of such Guarantor shall be automatically and unconditionally released or discharged; provided that such Restricted Subsidiary has not incurred any Indebtedness in reliance on its status as a Guarantor under Section 4.07 unless such Guarantor’s obligations under such Indebtedness so incurred are satisfied in full or simultaneously discharged or are otherwise permitted under one of the exceptions available to Restricted Subsidiaries that are not Guarantors under the definition of “Permitted Indebtedness” at the time of such release.
 
SECTION 4.14.  
Suspension of Covenants.
 
 
During any period of time that (i) the Notes have Investment Grade Ratings from both Rating Agencies, and (ii) no Default has occurred and is continuing under this Indenture (the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Covenant Suspension ”), the Issuer and its Restricted Subsidiaries shall not be subject to the following provisions of this Indenture (the “ Suspended Covenants ”):
 
(1)   Section 4.05;
 
(2)   Section 4.06;
 
(3)   Section 4.07;
 
(4)   Section 4.08;
 
(5)   Section 4.09;
 
(6)   Section 4.15; and
 
(7)   clause (c)(1) of Section 5.01.
 
In the event that the Issuer and the Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period of time as a result of the foregoing, and on any subsequent date (the “ Reversion Date ”) (a) one or both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating or (b) the Issuer or any of its affiliates enters into an agreement to effect a transaction that would result in a Change of Control and one or more of the Rating Agencies indicate that if consummated, such transaction (alone or together with any related recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade Rating, then the Issuer and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events.  The period beginning on the first day of a Covenant Suspension and ending on a Reversion Date is called a “ Suspension Period .”  The ability of the Issuer and the Restricted Subsidiaries to make Restricted Payments after the time of such withdrawal, downgrade, Default or Event of Default will be calculated as if the covenant governing Restricted Payments had been in effect during the entire period of time from the Issue Date.
 
SECTION 4.15.  
Conduct of Business
 
 
.
 
The Issuer will not, and will not permit any Restricted Subsidiary to, engage in any business other than the Permitted Business.
 
 
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ARTICLE 5                      
 

 
SUCCESSORS
 
SECTION 5.01.  
Merger, Consolidation, or Sale of Assets.
 
 
(a)   The Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or Transfer (or cause or permit any Restricted Subsidiary of the Issuer to Transfer all or substantially all of the Issuer’s assets (determined on a consolidated basis for the Issuer and its Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
 
(1)           either:
 
(A)           the Issuer is the surviving or continuing Person; or
 
(B)           the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Transferee of such assets (the “ Issuer Surviving
Entity ”):
 
 
(x)
shall be a corporation, partnership or limited liability company organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; provided that in the case where the surviving Person is not a corporation, a co-obligor of the Notes is a corporation; and
 
 
(y)
shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes and the performance of every covenant under the Notes and this Indenture on the part of the Issuer to be performed or observed; and
 
 
 
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(2)
each of the conditions specified in paragraph (c) is satisfied.
 
For purposes of the foregoing, the Transfer in a single transaction or series of related transactions of all or substantially all of the assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the assets of the Issuer (determined on a consolidated basis for the Issuer and its Subsidiaries), shall be deemed to be the Transfer of all or substantially all of the assets of the Issuer.
 
(b)   No Guarantor will, and the Issuer will not cause or permit any such Guarantor to, consolidate with or merge with or into any Person unless
 
(1)           either
 
(A)           such Guarantor shall be the surviving or continuing Person; or
 
(B)           the Person (if other than a Guarantor) formed by such consolidation or into which such Guarantor is merged shall expressly assume, by supplemental indenture executed and delivered to the Trustee, all of the obligations of such Guarantor under its Guarantee and the performance of every covenant under such Guarantor’s Guarantee and this Indenture on the part of such Guarantor to be performed or observed; and
 
(2)           each of the conditions specified in paragraph (c) below (other than clause (1) thereof) is satisfied.
 
The requirements of Sections 5.01(a) and (b) shall not apply to (x) a consolidation or merger of any Guarantor with and into the Issuer or any other Guarantor, so long as the Issuer or a Guarantor survives such consolidation or merger, or (y) a Transfer of  any Guarantor that complies with Section 4.08.
 
(c)   The following additional conditions shall apply to each transaction described in Sections 5.01(a) and (b), except that clause (1) below shall not apply to a transaction described in Section 5.01(b):
 
(1)           immediately after giving effect to such transaction and the assumption contemplated above (including giving effect to any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Issuer (or the Issuer Surviving Entity, if applicable)
 
(x)           could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
 
(y)           the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
 
(2)           immediately before and immediately after giving effect to such transaction and the assumption contemplated above (including giving effect to any Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default has occurred and is continuing; and
 
(3)           the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture, that all conditions precedent in this Indenture relating to such transaction have been satisfied and that supplemental indenture is enforceable.
 
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 Issuer in accordance with Section 5.01, in which the Issuer is not the continuing corporation, the successor Person formed by such consolidation or into which the Issuer 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 Issuer under this Indenture and the Notes with the same effect as if such surviving entity had been named as such and that, in the event of a conveyance or transfer (but not a lease), the conveyor or transferor (but not a lessor) shall be released from the provisions of this Indenture.
 
ARTICLE 6                      
 

 
DEFAULTS AND REMEDIES
 
SECTION 6.01.  
Events of  Default.
 
 
Any of the following shall constitute an Event of Default:
 
(a)   default for 30 days in the payment when due of interest on any Note;
 
 
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(b)   default in the payment when due of principal on any Note, whether upon maturity, acceleration, optional redemption, required repurchase or otherwise;
 
(c)   failure to perform or comply with the covenant described under Section 4.11 or the provisions of Section 3.09 applicable to a Change of Control Offer;
 
(d)   failure to perform or comply with any covenant, agreement or warranty in this Indenture (other than any specified in clause (a), (b) or (c) above) which failure continues for 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the holders of at least 25% in aggregate principal amount of then outstanding Notes;
 
(e)   default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is created after the Issue Date, which
 
(A)           is caused by a failure to pay such Indebtedness at Stated Maturity (after giving effect to any grace period related thereto) (a “ Payment Default ”); or
 
(B)           results in the acceleration of such Indebtedness prior to its Stated Maturity
 
and in each case, the principal amount of any such Indebtedness as to which a Payment Default or acceleration shall have occurred, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $25.0 million or more;
 
(f)   one or more final and non-appealable judgments, orders or decrees for the payment of money of $25.0 million or more, individually or in the aggregate, shall be entered against the Issuer or any Restricted Subsidiary or any of their respective properties and which final and non-appealable judgments, orders or decrees are not covered by third party indemnities or insurance as to which coverage has not been disclaimed and are not paid, discharged, bonded or stayed within 60 days after their entry;
 
(g)   a court having jurisdiction in the premises enters (x) a decree or order for relief in respect of the Issuer or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (y) a decree or order adjudging the Issuer or any of its Significant Subsidiaries a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any of its Significant Subsidiaries under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or any of its Significant Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
 
(h)   the Issuer or any of its Significant Subsidiaries:
 
 
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(i)   commences a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or any other case or proceeding to be adjudicated a bankrupt or insolvent; or
 
(ii)   consents to the entry of a decree or order for relief in respect of the Issuer or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or any of its Significant Subsidiaries; or
 
(iii)   files a petition or answer or consent seeking reorganization or relief under any applicable federal or state law; or
 
(iv)   consents to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Issuer or any of its Significant Subsidiaries or of any substantial part of its property; or
 
(v)   makes an assignment for the benefit of creditors; or
 
(vi)   admits in writing its inability to pay its debts generally as they become due;
 
(vii)   or takes corporate action in furtherance of any such action; or
 
(i)   the Guarantee of any Guarantor that is a Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such Guarantee and this Indenture) or is declared null and void and unenforceable or is found invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of a Guarantor from its Guarantee in accordance with the terms of this Indenture and the Guarantee).
 
SECTION 6.02.  
Acceleration.
 
 
If an Event of Default occurs and is continuing (other than an Event of Default described in clause (g) or (h) above with respect to the Issuer), the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may declare the principal of and accrued but unpaid interest on all the Notes to be due and payable.  Upon such a declaration, such principal and interest shall be due and payable immediately.  If an Event of Default described in clause (g) or (h) above occurs with respect to the Issuer, the principal of and interest on all the Notes will immediately become due and payable without any declaration or other act on the part of the Trustee or any Holders of the Notes.  Under certain circumstances, the holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.
 
At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences (i) if the rescission would not conflict with any judgment or decree, (ii) if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration, (iii) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, (iv) if the Issuer has paid the Trustee its rea-
 
 
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                                                                                                                                         sonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and (v) in the event of the cure or waiver of an Event of Default of the type described in clauses (g) or (h) of Section 6.01, the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.  No such rescission shall affect any subsequent Default or impair any right consequent thereto.
 
SECTION 6.03.  
Other Remedies.
 
 
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, interest on the Notes or to enforce the performance of any provision of the Notes, this Indenture.  The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.
 
SECTION 6.04.  
Waiver of Past Defaults.
 
 
The Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes (other than as a result of an acceleration), which shall require the written consent of all of the Holders of the Notes then outstanding.
 
SECTION 6.05.  
Control by Majority.
 
 
Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust power conferred on it.  However, (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture,  that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability, (ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction and (iii) prior to taking any such action, the Trustee shall be entitled to security and indemnity satisfactory to it in its sole discretion against all losses, liabilities that might be incurred by it and expenses caused by taking or not taking such action.
 
SECTION 6.06.  
Limitation on Suits.
 
 
Except to enforce the right to receive payment of principal or interest when due, no noteholder may pursue any remedy with respect to this Indenture or the Notes unless:
 
(a)   such Holder has previously given the Trustee notice that an Event of Default is continuing;
 
(b)   holders of at least 25% in principal amount of the outstanding Notes have requested the Trustee to pursue the remedy;
 
(c)   such Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense;
 
 
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(d)   the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
 
(e)   the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
 
SECTION 6.07.  
Rights of Holders of Notes to Receive Payment.
 
 
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal, premium, if any, and interest, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
SECTION 6.08.  
Collection Suit by Trustee.
 
 
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
SECTION 6.09.  
Trustee May File Proofs of Claim.
 
 
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other securities or property payable or deliverable upon the conversion or exchange of the Notes or on any such claims and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
 
SECTION 6.10.  
Priorities.
 
 
If the Trustee collects any money or other securities or property pursuant to this Article, it shall pay out the money in the following order:
 
 
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First:  to the Trustee (including any predecessor Trustee), its agents and attorneys for amounts due under Section 7.06, including payment of all reasonable compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
 
Second:  to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
 
Third:  to the Issuer or to such party as a court of competent jurisdiction shall direct.
 
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
 
SECTION 6.11.  
Undertaking for Costs.
 
 
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.06, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
 
ARTICLE 7                      
 

 
TRUSTEE
 
SECTION 7.01.  
Duties of Trustee
 
 
.
 
(a)   If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
 
(b)   Except during the continuance of an Event of Default:
 
(i)   the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
 
(ii)   in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, the Trustee shall be under a duty to examine the certificates and opinions specifically required to be furnished to it to determine whether or not they conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts or conclusions stated therein).
 
 
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(c)   The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(i)   this paragraph does not limit the effect of paragraphs (b) or (e) of this Section 7.01
 
(ii)   the Trustee shall not be liable for any error of judgment made in good faith by an officer of the Trustee, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(iii)   the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 or otherwise in accordance with the direction of the Holders of a majority in principal amount of outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture
 
(d)   Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to Sections 7.01 and 7.02.
 
(e)   No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.  The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense which might be incurred by it in compliance with such request or direction.
 
(f)   The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
 
SECTION 7.02.  
Rights of Trustee
 
 
.
 
(a)   The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting on any document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in any such document.
 
(b)   Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel of the Trustee’s own choosing and the Trustee shall be fully protected from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance on the advice or opinion of such counsel or on any Opinion of Counsel.
 
(c)   The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.
 
(d)   The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.  Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.  Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or estab-
 
 
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                                                                                                                                        lished prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate
 
(e)   Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer or a Guarantor shall be sufficient if signed by an Officer of the Issuer or such Guarantor.
 
(f)   The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security and indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction..
 
(g)   The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or documents, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine during normal business hours the books, records and premises of the Issuer or any Guarantor, personally or by agent or attorney at the sole cost of the Issuer, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
 
(h)   The rights, privileges, protections and benefits given to the Trustee, including its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Persons employed to act hereunder
 
(i)   The Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
 
(j)   The permissive right of the Trustee to take or refrain from taking any actions enumerated in this Indenture shall not be construed as a duty.
 
(k)   The Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Responsible Officer has received from the Issuer or from a Holder written notice of  the circumstances constituting the Default or Event of Default and stating that said circumstances constitute a Default or Event of Default.  Such written notice shall reference the Notes and this Indenture.
 
SECTION 7.03.  
Individual Rights of Trustee.
 
 
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Sections 7.10 and 7.11
 
SECTION 7.04.  
Trustee’s Disclaimer.
 
 
The Trustee shall not be responsible for or make any representation as to the validity or adequacy of this Indenture or the Notes, and shall not be accountable for the Issuer’s use of the proceeds from the
 
 
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                                                                                                                                          Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, neither shall be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes, any statement or recital in any document in connection with the sale of the Notes or pursuant to this Indenture other than the Trustee’s certificate of authentication on the Notes.
 
SECTION 7.05.  
Notice of Defaults.
 
 
If a Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders a notice of the Default within 90 days after knowledge by the Trustee.  Except in the case of a Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interests of the Holders.
 
SECTION 7.06.  
Compensation and Indemnity.
 
 
The Issuer shall pay to the Trustee from time to time compensation for its acceptance of this Indenture and services hereunder in accordance with a separate fee agreement.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
 
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee (which for purposes of this Section 7.06 shall include its officers, directors, stockholders, employees and agents) against any and all claims, damage, losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuer (including this Section 7.06) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent any such loss, claim, damage, liability or expense may be attributable to its negligence or willful misconduct.  The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder.  The Issuer shall defend the claim and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of one such counsel.  The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
 
The obligations of the Issuer and the Guarantors under this Section 7.06 shall survive the satisfaction and discharge or termination for any reason of this Indenture or the resignation or removal of the Trustee.
 
To secure the Issuer’s and the Guarantors’ obligations in this Section 7.06, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal or interest, if any, on particular Notes.  Such Lien shall survive the satisfaction and discharge or termination for any reason of this Indenture and the resignation or removal of the Trustee.
 
In addition, and without prejudice to the rights provided to the Trustee under any of the provisions of this Indenture, when the Trustee incurs expenses or renders services after an Event of Default specified in clause (h) of Section 6.01 occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
 
 
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“ Trustee ” for the purposes of this Section 7.06 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided, however , that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
 
SECTION 7.07.  
Replacement of Trustee.
 
 
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.07.
 
The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer.  The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing.  The Issuer may remove the Trustee if:
 
(a)   the Trustee fails to comply with the requirements of Section 7.09;
 
(b)   the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(c)   a Custodian or public officer takes charge of the Trustee or its property; or
 
(d)   the Trustee becomes incapable of acting.
 
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
 
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
 
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.09, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and the duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to the Holders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided that all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.06.  Notwithstanding replacement of the Trustee pursuant to this Section 7.07, the Issuer’s obligations under and the Lien provided for in Section 7.06 shall continue for the benefit of the retiring Trustee.
 
 
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SECTION 7.08.  
Successor Trustee by Merger, Etc.
 
 
If the Trustee or any Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another Person, the successor Person without any further act shall be the successor Trustee or any Agent, as applicable.
 
SECTION 7.09.  
Eligibility; Disqualification.
 
 
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust power and that is subject to supervision or examination by federal or state authorities.  The Trustee together with its Affiliates shall at all times have a combined capital surplus of at least $50.0 million as set forth in its most recent annual report of condition.
 
SECTION 7.10.  
Trustee’s Application for Instructions from the Issuer.
 
 
Any application by the Trustee for written instructions from the Issuer may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective.  The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than twenty Business Days after the date any officer of the Issuer actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
 
SECTION 7.11.  
Limitation of Liability.
 
 
In no event shall the Trustee, in its capacity as such or as Paying Agent or Registrar or in any other capacity hereunder, be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.  The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action.  The provisions of this Section 7.11 shall survive satisfaction and discharge or the termination for any reason of this Indenture and the resignation or removal of the Trustee.
 
ARTICLE 8                      
 

 
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
 
SECTION 8.01.  
Option to Effect Legal Defeasance or Covenant Defeasance.
 
 
The Issuer may, at the option of its Board of Directors evidenced by a Board Resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
 
 
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SECTION 8.02.  
Legal Defeasance and Discharge.
 
 
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from its obligations with respect to all outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “ Legal Defeasance ”).  For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire debt represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of its other obligations under such Notes and this Indenture (and the Trustee, on written demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive, payments in respect of the principal amount of, premium, if any, and interest, if any on such Notes when such payments are due from the trust referred to in Section 8.04(l), (b) the Issuer’s obligations with respect to such Notes under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10 and 4.02, (c) the rights, powers, trusts, benefits and immunities of the Trustee, including under Section 7.06, 8.05 and 8.07 and the Issuer’s obligations in connection therewith; (d) the Issuer’s rights pursuant to Section 3.07; and (e) the provisions of this Article 8.  Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
 
SECTION 8.03.  
Covenant Defeasance.
 
 
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from its obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, and 4.15 with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer or any of its Subsidiaries may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.  In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01 (c), (d), (e), (f), (g) and (i).
 
SECTION 8.04.  
Conditions to Legal or Covenant Defeasance.
 
 
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes:
 
In order to exercise either Legal Defeasance or Covenant Defeasance:
 
(a)   the Issuer must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes:  (A)
 
 
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money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (C) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Issuer has made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name and at the expense of the Issuer) the Redemption Date thereof, as the case may be, in accordance with the terms of this Indenture and such Notes;
 
(b)   in the case of legal defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit, legal defeasance and discharge to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, legal defeasance and discharge were not to occur;
 
(c)   in the case of covenant defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and covenant defeasance to be effected with respect to such Notes and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and covenant defeasance were not to occur;
 
(d)   no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);
 
(e)   such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than this Indenture) to which the Issuer is a party or by which the Issuer is bound; and;
 
(f)   the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such legal defeasance or covenant defeasance have been complied with and such legal or covenant defeasance is authorized and permitted by the terms hereof.
 
Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above with respect to a Legal Defeasance need not to be delivered if all Notes not therefore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable at Stated Maturity within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer
 
 
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SECTION 8.05.  
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
 
 
Subject to Section 8.06, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “ Trustee ”) pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust, shall not be invested, and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
 
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
 
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the written request of the Issuer and be relieved of all liability with respect to any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
 
SECTION 8.06.  
Repayment to Issuer.
 
 
Subject to any applicable abandoned property laws, money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on, if any, on any Note and remaining unclaimed for one year after such principal and premium, if any, or interest has become due and payable shall be paid to the Issuer on its written request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Issuer.
 
SECTION 8.07.  
Reinstatement.
 
 
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided , however , that, if the Issuer makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the
 
 
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                                                                                                                                                  rights of the Holders of such Notes to receive such payment from the cash and securities held by the Trustee or Paying Agent.
 
SECTION 8.08.  
Discharge.
 
 
This Indenture will, subject to certain surviving provisions, cease to be of further effect when:
 
(1)           the Issuer delivers to the Trustee all outstanding Notes (other than Notes replaced because of mutilation, loss, destruction or wrongful taking) for cancellation; or
 
(2)           all outstanding Notes have become due and payable, whether at maturity or as a result of the mailing of a notice of redemption as described above, and the Issuer irrevocably deposits with the Trustee funds sufficient to pay at maturity or upon redemption all outstanding Notes, including interest thereon,
 
and if in either case the Issuer pays all other sums payable under this Indenture by the Issuer.  The Trustee will acknowledge satisfaction and discharge of this Indenture on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer.
 
.
 
ARTICLE 9                      
 

 
AMENDMENT, SUPPLEMENT AND WAIVER
 
SECTION 9.01.  
Without Consent of Holder.
 
 
Notwithstanding Section 9.02 of this Indenture, without the consent of any Holders, the Issuer, the Guarantors and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to this Indenture and the Guarantees for any of the following purposes:
 
(a)   to cure any ambiguity, defect, mistake or inconsistency;
 
(b)   to provide for the assumption by a successor Person of the obligations of the Issuer or any Guarantor under this Indenture in accordance with the provisions of Section 5.01;
 
(c)   to provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code; or in a manner such that the uncertificated Notes are set forth in Section 163(f)(2)(B) of the Code);
 
(d)   to add a Guarantor;
 
(e)   to release a Guarantor from its Guarantee when permitted by this Indenture;
 
(f)   to add to the covenants of the Issuer for the benefit of the noteholders or to surrender any right or power conferred upon the Issuer;
 
(g)   to comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act;
 
 
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(h)   to make any other change that does not materially adversely affect the rights of any Holder; or
 
(i)   to conform this Indenture or the Notes to the Description of Notes in the Offering Memorandum.
 
SECTION 9.02.  
Supplemental Indentures with Consent of Holders.
 
 
With the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes, the Issuer, the Guarantors and the Trustee may enter into an indenture or indentures supplemental to this Indenture (together with the other consents required thereby) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or the Notes or of modifying in any manner the rights of the Holders of the Notes under this Indenture, including the definitions herein; provided , however , that no such supplemental indenture, modification or amendment shall, without the consent of the Holder of each outstanding Note affected thereby.
 
(a)   reduce the principal amount of or change the fixed maturity of any Note;
 
(b)   alter the provisions with respect to the redemption or purchase provisions of any Note or this Indenture in a manner adverse to the holders of the Notes (other than the provisions of this Indenture relating to any offer to purchase required under Section 4.11);
 
(c)   waive a redemption or purchase payment due with respect to any Note;
 
(d)   reduce the rate of or change the time for payment of interest on any Note;
 
(e)   waive a Default in the payment of principal or interest on the Notes (except that holders of at least a majority aggregate principal amount of then outstanding Notes may (x) rescind an acceleration of the Notes that resulted from a non-payment default and (y) waive the payment default that resulted from such acceleration);
 
(f)   make the principal of or interest on any Note payable in money other than United States Dollars;
 
(g)   make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of holders of Notes to receive payments of principal of or interest on the Notes;
 
(h)   make the Notes or any Guarantee subordinated by their or its terms in right of payment to any other Indebtedness;
 
(i)   release any Guarantor that is a Significant Subsidiary from its Guarantee except in compliance with this Indenture; or
 
(j)   make any change in the amendment and waiver provisions of this Indenture
 
SECTION 9.03.  
Compliance with Trust Indenture Act.
 
 
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.
 
 
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SECTION 9.04.  
Revocation and Effect of Consents.
 
 
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on the Note.  However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion thereof if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective.  When an amendment, supplement or waiver becomes effective in accordance with its terms, it thereafter binds every Holder.
 
The Issuer may, but shall not be obligated to, fix a record date for determining which Holders consent to such amendment, supplement or waiver.  If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished for the Trustee prior to such solicitation pursuant to Section 2.05 or (ii) such other date as the Issuer shall designate.
 
SECTION 9.05.  
Trustee to Sign Amendments.
 
 
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  The Issuer and the Guarantors may not sign an amendment or supplemental indenture until their respective Boards of Directors approve it.  In signing or refusing to sign any amendment or supplemental indenture the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amendment or supplemental indenture is authorized or permitted by this Indenture, that all conditions precedent thereto have been met or waived and that such amendment or supplemental indenture is not inconsistent herewith.
 
ARTICLE 10                                
 

 
GUARANTEES
 
SECTION 10.01.  
Guarantees.
 
 
Each Guarantor hereby unconditionally guarantees, jointly and severally, to each Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Issuer under this Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under this Indenture and the Notes (all the foregoing being hereinafter collectively called the “ Guaranteed Obligations ”).  Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation.
 
Each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment.  Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.  The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or
 
 
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                                                                                                                                                              any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the ownership of such Guarantor.
 
Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
 
Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
 
Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full of all Guaranteed Obligations.  Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6 for the purposes of such Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purposes of this Section.
 
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
 
SECTION 10.02.  
Execution and Delivery of Guarantee.
 
 
To evidence its Guarantee set forth in Section 10.01, each Guarantor agrees that a notation of such Guarantee substantially in the form attached hereto as Exhibit B shall be endorsed on each Note authenticated and delivered by the Trustee.  Such notation of Guarantee shall be signed on behalf of such Guarantor by an officer of such Guarantor (or, if an officer is not available, by a board member, director or member, as applicable) on behalf of such Guarantor by manual or facsimile signature.  In case the Officer, board member or director or member of such Guarantor who shall have signed such notation of Guarantee shall cease to be such Officer, board member, director or member before the Note on which such Guarantee is endorsed shall have been authenticated and delivered by the Trustee, such Note nevertheless may be authenticated and delivered as though the Person who signed such notation of Guarantee had not ceased to be such officer, board member, director or member.
 
Each Guarantor agrees that its Guarantee set forth in Section 10.01 shall remain in full force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such Guarantee.  The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of the Guarantors.
 
The failure to endorse a Guarantee shall not affect or impair the validity thereof.
 
 
76
 
SECTION 10.03.  
Limitation on Liability.
 
 
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor (a) not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee, and (b) not result in a distribution to shareholders not permitted under the applicable state law.  Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.  Each Guarantor that makes a payment or distribution under a Guarantee will be entitled to a contribution from each other Guarantor in an amount pro rata, based on the net assets of each Guarantor.
 
SECTION 10.04.  
Successors and Assigns.
 
 
This Article 10 shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
 
SECTION 10.05.  
No Waiver.
 
 
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article 10 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.  The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 10 at law, in equity, by statute or otherwise.
 
SECTION 10.06.  
Release of Guarantor.
 
 
The Guarantee of any Restricted Subsidiary will be automatically and unconditionally released and discharged upon any of the following:
 
(a)   any sale, exchange or transfer by the Issuer or any Restricted Subsidiary to any Person or Persons, as a result of which the Restricted Subsidiary is no longer a Subsidiary of the Issuer, of a majority of the Capital Stock of, or all or substantially all the assets of, such Restricted Subsidiary, which sale, exchange or transfer is made in accordance with the provisions of this Indenture;
 
(b)   the designation of such Restricted Subsidiary as an Unrestricted Subsidiary in accordance with the provisions of this Indenture; or
 
(c)   the release or discharge of the guarantee by such Guarantor under any Credit Facility; provided that such Restricted Subsidiary has not incurred any Indebtedness in reliance on its status as a Guarantor under Section 4.07 unless such Guarantor’s obligations under such Indebtedness so incurred are satisfied in full or simultaneously discharged or are otherwise permitted under one of the exceptions available to Restricted Subsidiaries that are not Guarantors under the definition of “Permitted Indebtedness” at the time of such release;
 
 
77
 
provided, in each such case, that the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transactions have been complied with and that such release is authorized and permitted under this Indenture.
 
SECTION 10.07.  
Contribution.
 
 
Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all Guaranteed Obligations to contribution from each Guarantor, as applicable, in an amount equal to such Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
 

 
ARTICLE 11                                
 

 
MISCELLANEOUS
 
SECTION 11.01.  
Notices.
 
 
Any notice or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next-day delivery, to the other’s address:
 
If to the Issuer or any Guarantor:

Tutor Perini Corporation
15901 Olden Street
Sylmar, CA 91342
Attention:  General Counsel
Telecopier No.:  (818) 367-9574
 
With a copy to:
 
Kirkland &Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention:  Christian O. Nagler, Esq.
Telecopier No.:  (212) 446-4900
 
If to the Trustee:
 
Wilmington Trust FSB
Corporate Capital Markets
246 Goose Lane, Suite 105
Guilford, Connecticut 06437
Telecopier No.:  (203) 453-1183
Attention:  Tutor Perini Administrator

With a copy to:

 
78
 
Wilmington Trust Company
Corporate Capital Markets
1100 North Market Street
Wilmington, Delaware 19801
Attention:   Tutor Perini Administrator

The Issuer, the Guarantors and the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
 
All notices and communications (other than those sent to Holders and the Trustee) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier promising next Business Day delivery.  All notices and communications to the Trustee shall only be deemed to have been duly given upon receipt by a Responsible Officer of the Trustee.
 
Any notice or communication to a Holder shall be mailed by first class mail, or by overnight air courier promising next Business Day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee), pursuant to the customary procedures of such Depositary.
 
If a notice or communication is mailed or delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt.
 
If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
 
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods; provided, however, that, the  Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced on or before delivery of any such instructions or directions whenever a person is to be added or deleted from the listing.  If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.  The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
 
 
79
 
SECTION 11.02.  
Certificate and Opinion as to Conditions Precedent.
 
 
Upon any request or application by the Issuer to the Trustee to take any action under this Indenture (other than the initial issuance of the Notes), the Issuer shall furnish to the Trustee:
 
(a)   an Officers’ Certificate (which shall include the statements set forth in Section 11.03) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
 
(b)   an Opinion of Counsel (which shall include the statements set forth in Section 11.03) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
 
SECTION 11.03.  
Statements Required in Certificate or Opinion.
 
 
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
 
(a)   a statement that the Person making such certificate or opinion has read such covenant or condition;
 
(b)   a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(c)   a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
 
(d)   a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
 
SECTION 11.04.  
Rules by Trustee and Agents.
 
 
The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
 
SECTION 11.05.  
No Personal Liability of Directors, Officers, Employees and Stockholders
 
.
 
No director, officer, employee, stockholder, general or limited partner, member or incorporator, past, present or future, of the Issuer or any of its Subsidiaries, as such or in such capacity, shall have any personal liability for any obligations of the Issuer under the Notes, any Guarantee or this Indenture by reason of his, her or its status as such director, officer, employee, stockholder, general or limited partner, member or incorporator.
 
SECTION 11.06.  
Governing Law.
 
 
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, IF ANY.  The parties to this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes, the Guarantees or this Indenture, and all such parties hereby irre-
 
 
80
 
                                                                                                                                                  vocably agree that all claims in respect of such action or proceeding may be heard and determined in such New York State or federal court and hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
 
SECTION 11.07.  
No Adverse Interpretation of Other Agreements.
 
 
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
 
SECTION 11.08.  
Successors.
 
 
All agreements of the Issuer and the Guarantors in this Indenture and the Notes and the Guarantees, as applicable, shall bind their respective successors and assigns.  All agreements of the Trustee in this shall bind its successors.
 
SECTION 11.09.  
Severability.
 
 
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
SECTION 11.10.  
Counterpart Originals.
 
 
The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.
 
SECTION 11.11.  
Table of Contents, Headings, Etc.
 
 
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
 
SECTION 11.12.  
Force Majeure.
 
 
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
 
SECTION 11.13.  
Note Purchases by Issuer and Affiliates.
 
 
The Issuer and its Affiliates shall be permitted to purchase Notes, whether through private purchase, open market purchase, tender offer, or otherwise.  Such purchase or acquisition shall not operate as
 
 
81
 
or be deemed for any purpose to be a redemption of the Indebtedness represented by such Notes.  Any Notes purchased or acquired by the Issuer may be delivered to the Trustee and, upon such delivery the Indebtedness represented thereby shall be deemed to be satisfied.  Section 2.09 shall be applicable to any Notes acquired by the Issuer and its Affiliates.
 

 
[Signatures on following page]

 
82
 

SIGNATURES
 
Dated as the date first written above
 
 
ISSUER:
 
TUTOR PERINI CORPORATION
 
 
 
By:
 /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
President
 
 
GUARANTORS:
 
 
PERINI BUILDING COMPANY, INC.
 

 
 
By:
 /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
Executive Vice President
 
 
PERINI ENVIRONMENTAL SERVICES, INC.
 
 
INTERNATIONAL CONSTRUCTION MANAGEMENT SERVICES, INC.
 
 
PERINI MANAGEMENT SERVICES, INC.
 
 
BOW EQUIPMENT LEASING COMPANY, INC.
 
 
R.E. DAILEY & CO.
 
 
PERINI LAND AND DEVELOPMENT COMPANY, INC.
 
 
PARAMOUNT DEVELOPMENT ASSOCIATES, INC.
 
 
PERCON CONSTRUCTORS, INC.
 
 
PERLAND CONSTRUCTION, INC.
 
 

 
 
 
By:
 /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
President
 

Signature Page to Indenture
 
 
 


 
TUTOR-SALIBA LLC
 
TUTOR-SALIBA CORPORATION
 

 
 
By:
 /s/John D. Barrett  
 
 
 
Name:
John D. Barrett
 
 
 
Title:
Senior Vice President
 
 

 
 
POWERCO ELECTRIC CORP.
 
TUTOR HOLDINGS, LLC
 
TUTOR PACIFIC CONSTRUCTION, LLC
 
TUTOR MICRONESIA CONSTRUCTION, LLC
 
G.W. MURPHY CONSTRUCTION COMPANY, INC.
 
E.E. BLACK, LIMITED
 
BLACK CONSTRUCTION INVESTMENTS, INC.
 

 
 
By:
 /s/John D. Barrett  
 
 
 
Name:
John D. Barrett
 
 
 
Title:
Vice President
 

Signature Page to Indenture
 
 
 


 
JAMES A. CUMMINGS, INC.
 

 
 
By:
 /s/William Derrer  
 
 
 
Name:
William Derrer
 
 
 
Title:
President and Chief Executive Officer
 

Signature Page to Indenture
 
 
 


 
CHERRY HILL CONSTRUCTION, INC.
 

 
 
By:
 /s/James Laing  
 
 
 
Name:
James Laing
 
 
 
Title:
President
 

Signature Page to Indenture
 
 
 


 
RUDOLPH AND SLETTEN, INC.
 

 
 
By:
 /s/Martin B. Sisemore  
 
 
 
Name:
Martin B. Sisemore
 
 
 
Title:
President and Chief Executive Officer
 

Signature Page to Indenture
 
 
 


 
DESERT PLUMBING & HEATING CO., INC.
 

 
 
By:
 /s/Derrick I. Hodson  
 
 
 
Name:
Derrick I. Hodson
 
 
 
Title:
President
 

Signature Page to Indenture
 
 
 


 
TPC AGGREGATES, LLC
 

 
 
By:
 /s/William B. Sparks  
 
 
 
Name:
William B. Sparks
 
 
 
Title:
Vice President, Chief Financial Officer
And Assistant Secretary
 

Signature Page to Indenture
 
 
 


 
DANIEL J. KEATING CONSTRUCTION COMPANY, LLC
 

 
 
By:
 /s/Daniel J. Keating, III  
 
 
 
Name:
Daniel J. Keating, III
 
 
 
Title:
Chief Executive Officer
 
 


Signature Page to Indenture
 
 
 


 
TRUSTEE:
 
Wilmington Trust FSB, AS TRUSTEE
 
 
By:
 
 
 
Name:  [                                     ]
 
 
 
Title:    [                                     ]
 

Signature Page to Indenture
 
 
 

EXHIBIT A
 
FORM OF 7⅝ % SENIOR NOTE
 

 
(Face of 7⅝% Senior Note)
 
7⅝ Senior Notes due 2018
 
[Global Note Legend]
 
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
[Restricted Note Legend]
 
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
 
 
A-1
 
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS ‘‘OFFSHORE TRANSACTION,’’ ‘‘UNITED STATES’’ AND ‘‘U.S. PERSON’’ HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”


 
 
 
A-2
 

TUTOR PERINI CORPORATION
 
7⅝% SENIOR NOTE DUE 2018
 
No.  [       ]                                                                                     INITIAL NOTES CUSIP:
144A:  901109 AA6
Reg S:  U87300 AA4
INITIAL NOTES ISIN:
144A:  US901109AA64
Reg S: USU87300AA47
 
Tutor Perini Corporation promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] on November 1, 2018.
 
Interest Payment Dates:  May 1 and November 1, beginning May 1, 2011
 
Record Dates:  April 15 and October 15
 
Reference is made to further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
 
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
 


 
 
 
A-3
 

 
TUTOR PERINI CORPORATION
 
 
By:         /s/William B. Sparks
 
 
Name:  William B. Sparks
 
 
Title:  Executive Vice President and Treasurer
 


 
 
 
A-4
 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 7⅝% Senior Notes
referred to in the within-mentioned Indenture:
Dated:  October 20, 2010
 
WILMINGTON TRUST FSB, not in its individual capacity,
but solely as Trustee
 
By:           
 
Authorized Signatory
 

 
A-5
 

(Reverse of 7⅝% Senior Note)
 
7⅝% Senior Notes due 2018
 
TUTOR PERINI CORPORATION
 
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
(1)            Interest .
 
(a)           Tutor Perini Corporation, a Massachusetts corporation (“ TPC ”), promises to pay interest on the principal amount of this Note at the rate of 7⅝ % per annum .  TPC will pay interest in United States dollars semiannually in arrears on May 1 and November 1, commencing on May 1, 2011, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”).  Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including October 20, 2010.  TPC shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.  Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.  The interest rate on the Notes will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application.
 
(2)            Method of Payment .  TPC will pay interest on the Notes (except defaulted interest) on the applicable Interest Payment Date to the Persons who are registered Holders of Notes at the close of business on the April 15  and October 15 preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  The Notes shall be payable as to principal, premium and interest at the office or agency of TPC maintained for such purpose, or, at the option of TPC, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds shall be required with respect to principal of, premium, if any, and interest on, all Global Notes and all other Notes the Holders of which shall have provided written wire transfer instructions to TPC and the Paying Agent.  Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
Any payments of principal of and interest on this Note prior to Stated Maturity shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.  The amount due and payable at the maturity of this Note shall be payable only upon presentation and surrender of this Note at an office of the Trustee or the Trustee’s agent appointed for such purposes.
 
(3)            Paying Agent and Registrar .  Initially, Wilmington Trust FSB, the Trustee under the Indenture, shall act as Paying Agent and Registrar.  TPC may change any Paying Agent or Registrar without notice to any Holder.  TPC or any of its Restricted Subsidiaries may act in any such capacity.
 
(4)            Indenture .  TPC issued the Notes under an Indenture, dated as of October, 20 (the “ Indenture ”), among TPC, the Guarantors and the Trustee.   To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.  The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms.  The Notes issued on the
 
 
A-6
 
                                                                                                                                       Issue Date are senior Obligations of TPC limited to $300,000,000 in aggregate principal amount, plus amounts, if any, sufficient to pay premium and interest on outstanding Notes as set forth in Paragraph 2 hereof.  The Indenture permits the issuance of Additional Notes subject to compliance with certain conditions.
 
The payment of principal and interest on the Notes is unconditionally guaranteed on a senior basis by the Guarantors.
 
(5)            Optional Redemption .
 
(a)           At any time prior to November 1, 2014 the Issuer may redeem all or a part of the Notes, at a Redemption Price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to the date of redemption (the “ Redemption Date ”), subject to the rights of the holders of record on the relevant record date to receive interest due on the relevant interest payment date.
 
(b)           The Notes will be redeemable at the option of the Issuer, in whole or in part, at any time on or after November 1, 2014 at the redemption prices (expressed as a percentage of principal amount to be redeemed) set forth below, plus accrued and unpaid interest thereon, if any, to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the twelve month period beginning on November 1 of the years indicated below:
 
Year
Redemption Price
2014
103.813%
2015
101.906%
2016 and thereafter
100.000%

(c)           Notwithstanding the provisions of clauses (a) and (b) above, at any time on or prior to November 1, 2013 the Issuer may, at its option on any one or more occasions, redeem Notes in an aggregate principal amount not to exceed 35% of the aggregate principal amount of Notes issued under the Indenture at a Redemption Price of 107.625% of the principal amount, plus accrued and unpaid interest to the redemption date, with an amount equal to the Net Cash Proceeds of one or more Equity Offerings; provided that:
 
(i)           at least 65% of the aggregate principal amount of Notes issued under the Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Issuer and its Subsidiaries); and
 
(ii)           the redemption occurs within 90 days of the date of the closing of such Equity Offering.
 
(6)            Mandatory Redemption .  Except as set forth under Sections 4.08 and 4.11 of the Indenture, the Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
 
 
A-7
 
(7)            Repurchase at Option of Holder .
 
(a)           Upon the occurrence of certain events, the Issuer may be required to commence an Offer to Purchase pursuant to an Asset Sale Offer or a Change of Control Offer.
 
(b)           Holders of the Notes that are the subject of an Offer to Purchase will receive notice of an Offer to Purchase pursuant to an Asset Sale Offer or a Change of Control Offer from TPC prior to any related Purchase Date and may elect to have such Notes purchased by completing the form titled “Option of Holder to Elect Purchase” appearing below.
 
(8)            Notice of Redemption .  Notice of redemption shall be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address.  Notes in denominations larger than $2,000 may be redeemed in part but only in a minimum amount of $2,000 principal amount (and integral multiples of $1,000 in excess thereof), unless all of the Notes held by a Holder are to be redeemed.  On and after the redemption date, interest will cease to accrue on the Notes or portions hereof called for redemption.
 
(9)            Denominations, Transfer, Exchange .  The Notes are in registered form without coupons in initial denominations of $2,000 and any integral multiple of $1,000 in excess thereof.    The transfer of the Notes may be registered and the Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and TPC may require a Holder to pay any taxes and fees required by law or permitted by the Indenture.  TPC need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.  Also, it need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
 
(10)            Persons Deemed Owners .  The registered Holder of a Note may be treated as its owner for all purposes.
 
(11)            Amendment, Supplement and Waiver .  Subject to the following paragraphs, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes, including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including consents obtained in connection with a tender offer or exchange offer for the Notes.
 
Without the consent of any Holders, TPC, the Guarantors and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to the Indenture for any of the following purposes:
 
(i)   to cure any ambiguity, defect, mistake or inconsistency;
 
(ii)   to provide for the assumption by a successor Person of the obligations of the Issuer or any Guarantor under the Indenture in accordance with the provisions of Section 5.01 of the Indenture;
 
(iii)   to provide for uncertificated Notes in addition to or in place of certificated Notes ( provided that the uncertificated Notes are issued in registered form for purposes of Section
 
 
A-8
 
                                                                                                                           163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code);
 
(iv)   to add a Guarantor;
 
(v)   to release a Guarantor from its Guarantee when permitted by the Indenture;
 
(vi)   to add to the covenants of the Issuer for the benefit of the noteholders or to surrender any right or power conferred upon the Issuer;
 
(vii)   to comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act;
 
(viii)   to make any other change that does not materially adversely affect the rights of any Holder; or
 
(ix)   to conform the Indenture or the Notes to the Description of Notes in the Offering Memorandum.
 
With the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes, TPC, the Guarantors and the Trustee may enter into an indenture or indentures supplemental to the Indenture (together with the other consents required thereby) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or the Notes or of modifying in any manner the rights of the Holders under the Indenture, including the definitions therein; provided , however , that no such supplemental indenture, modification or amendment shall, without the consent of the Holder of each outstanding Note affected thereby:
 
(i)   reduce the principal amount of or change the fixed maturity of any Note;
 
(ii)   alter the provisions with respect to the redemption or purchase provisions of any Note or the Indenture in a manner adverse to the holders of the Notes (other than the provisions of the Indenture relating to any offer to purchase required under Section 4.11);
 
(iii)   waive a redemption or purchase payment due with respect to any Note;
 
(iv)   reduce the rate of or change the time for payment of interest on any Note;
 
(v)   waive a Default in the payment of principal or interest on the Notes (except that holders of at least a majority in aggregate principal amount of then outstanding Notes may (x) rescind an acceleration of the Notes that resulted from a non-payment default and (y) waive the payment default that resulted from such acceleration);
 
(vi)   make the principal of or interest on any Note payable in money other than United States Dollars;
 
(vii)   make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of holders of Notes to receive payments of principal of or interest on the Notes;
 
(viii)   make the Notes or any Guarantee subordinated by their or its terms in right of payment to any other Indebtedness;
 
 
A-9
 
(ix)   release any Guarantor that is a Significant Subsidiary from its Guarantee except in compliance with the Indenture; or
 
(x)   make any change in the amendment and waiver provisions of the Indenture.
 
 (12)            Defaults and Remedies .  Events of Default include:
 
(i)   default for 30 days in the payment when due of interest on any Note;
 
(ii)   default in the payment when due of principal on any Note, whether upon maturity, acceleration, optional redemption, required repurchase or otherwise;
 
(iii)   failure to perform or comply with the provisions of Section 4.11 or the provisions of Section 3.09 with respect to a Change of Control Offer;
 
(iv)   failure to perform or comply with any covenant, agreement or warranty in the Indenture (other than any specified in clause (i), (ii) or (iii) above) which failure continues for 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the holders of at least 25% in aggregate principal amount of then outstanding Notes;
 
(v)   default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is created after the Issue Date, which
 
(1)   is caused by a failure to pay such Indebtedness at Stated Maturity (after giving effect to any grace period related thereto) (a “ Payment Default ”); or
 
(2)   results in the acceleration of such Indebtedness prior to its Stated Maturity;
 
 
and in each case, the principal amount of any such Indebtedness as to which a Payment Default or acceleration shall have occurred, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $25.0 million or more;
 
(vi)   one or more final and non-appealable judgments, orders or decrees for the payment of money of $25.0 million or more, individually or in the aggregate, shall be entered against the Issuer or any Restricted Subsidiary or any of their respective properties and which final and non-appealable judgments, orders or decrees are not covered by third party indemnities or insurance as to which coverage has not been disclaimed and are not paid, discharged, bonded or stayed within 60 days after their entry;
 
(vii)   a court having jurisdiction in the premises enters (x) a decree or order for relief in respect of the Issuer or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (y) a decree or order adjudging the Issuer or any of its Significant Subsidiaries a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any of its Significant Subsidiaries under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
 
 
A-10
 
                                                                                                                              sequestrator or other similar official of the Issuer or any of its Significant Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
 
(viii)   the Issuer or any of its Significant Subsidiaries:
 
(1)   commences a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or any other case or proceeding to be adjudicated a bankrupt or insolvent; or
 
(2)   consents to the entry of a decree or order for relief in respect of the Issuer or any of its Significant Subsidiaries in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or any of its Significant Subsidiaries; or
 
(3)   files a petition or answer or consent seeking reorganization or relief under any applicable federal or state law; or
 
(4)   consents to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Issuer or any of its Significant Subsidiaries or of any substantial part of its property; or
 
(5)   makes an assignment for the benefit of creditors; or
 
(6)   admits in writing its inability to pay its debts generally as they become due;  or
 
(7)   takes corporate action in furtherance of any such action; or
 
(ix)   the Guarantee of any Guarantor that is a Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such Guarantee and this Indenture) or is declared null and void and unenforceable or is found invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of a Guarantor from its Guarantee in accordance with the terms of the Indenture and the Guarantee).
 
If an Event of Default occurs and is continuing (other than an Event of Default described in clause (vii) or (viii) above with respect to the Issuer), the Trustee or the holders of at least 25% in principal amount of the outstanding Notes may declare the principal of and accrued but unpaid interest on all the Notes to be due and payable.  Upon such a declaration, such principal and interest shall be due and payable immediately.  If an Event of Default described in clause (vii) or (viii) above occurs with respect to the Issuer, the principal of and interest on all the Notes will immediately become due and payable without any declaration or other act on the part of the Trustee or any holders of the Notes.  Under certain circumstances, the holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.
 
At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences (i) if the rescission would not conflict with any judgment or decree, (ii) if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration, (iii) to the extent the payment of such interest is law-
 
 
A-11
 
                                                                                                                                         ful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, (iv) if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and (v) in the event of the cure or waiver of an Event of Default of the type described in clauses (g) or (h) of Section 6.01 of the Indenture, the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.  No such rescission shall affect any subsequent Default or impair any right consequent thereto.
 
(13)            Trustee Dealings with TPC .  The Trustee, in its individual or any other capacity, may make loans to, accept deposits from and perform services for TPC, the Guarantors or their respective affiliates, and may otherwise deal with TPC, the Guarantors or their respective affiliates, as if it were not the Trustee.
 
(14)            No Recourse Against Others .  No director, officer, employee, stockholder, general or limited partner, member or incorporator, past, present or future, of the Issuer, TPC, the Guarantors or any of their respective Subsidiaries, as such or in such capacity, shall have any personal liability for any obligations of the Issuer under the Notes, any Guarantee or the Indenture by reason of his, her or its status as such director, officer, employee, stockholder, general or limited partner, member or incorporator.
 
(15)            Authentication .  This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
 
(16)            Abbreviations .  Customary abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
 
(17)            CUSIP, ISIN Numbers .  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP, ISIN or other similar numbers in notices of redemption as a convenience to the Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
TPC shall furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:
 
Tutor Perini Corporation
15901 Olden Street
Sylmar, CA 91342
Facsimile:  (818) 367-9574
Attention:  Chief Financial Officer

 
A-12
 

ASSIGNMENT FORM
 
To assign this Note, fill in the form below:  (I) or (we) assign and transfer this Note to
 

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



(Print or type assignee’s name, address and zip code)
 
and irrevocably appoint                                                                                                                                       
to transfer this Note on the books of TPC.  The agent may substitute another to act for him.
 
Date:  __________
 
Your Signature:                                                                       
(Sign exactly as your name appears on the face of this Note)
 
Signature guarantee:                                                                                                                            
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
 

 
A-13
 

OPTION OF HOLDER TO ELECT PURCHASE
 
If you want to elect to have this Note purchased by TPC pursuant to Sections 4.08 (Asset Sale) or 4.11 (Change of Control) of the Indenture, check the box below:
 
[   ] Section 4.08                                  [   ] Section 4.11
 
If you want to elect to have only part of the Note purchased by TPC pursuant to Section 4.08, 4.11 of the Indenture, state the amount you elect to have purchased:  $
 
Date:  __________                                                      Your Signature:                                                                                     
(Sign exactly as your name appears on the Note)
 
Tax Identification No.:
 
Signature guarantee:                                                                                                                                
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
 

 
A-14
 

CERTIFICATE TO BE DELIVERED UPON
 
EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES
 
Tutor Perini Corporation
15901 Olden Street
Sylmar, California 91342
 
Facsimile: (818) 367-9574
 
Attention:  Chief Financial Officer
 
Wilmington Trust FSB
246 Goose Lane, Suite 105
Guilford, CT  06437
Facsimile:  (203) 453-1183
Attention:  Tutor Perini Administrator
 
Re:
Tutor Perini Corporation
 
 
7⅝% Senior Note due 2018
 
CUSIP #
 
 
Reference is hereby made to that certain Indenture dated October 20, 2010 (the “ Indenture ”) among TPC Rentals Holdings, Inc. (“ TPC ”), the Guarantors party thereto and Wilmington Trust FSB, as trustee (the “ Trustee ”).  Capitalized terms used but not defined herein shall have the meanings set forth in the Indenture.
 
This certificate relates to $_________ principal amount of Notes held in (check applicable space) ____ book-entry or _____ definitive form by the undersigned.
 
The undersigned __________________ (transferor) (check one box below):
 
           hereby requests the Registrar to deliver in exchange for its beneficial interest in the Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above), in accordance with Section 2.06 of the Indenture; or
 
hereby requests the Trustee to exchange or register the transfer of a Note or Notes to _____________ (transferee).
 
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the periods referred to in Rule 144(b) under the Securities Act of 1933, as amended, the undersigned confirms that such Notes are being transferred in accordance with its terms:
 
CHECK ONE BOX BELOW:
 
(1)                       to TPC or any of its subsidiaries;
 
(2)                       inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or
 
 
A-15
 
(3)                       outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder.
 
Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof.
 
 
_______________________________________________
 
Signature
Signature guarantee:                                                                                                                          
(Signature must be guaranteed by a participant in a recognized signature
 
guarantee medallion program)
 
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
 
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (“ Rule 144A ”), and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
 
 
[Name of Transferee]
 
Dated:  ____________                                                                
 
NOTICE:  To be executed by an executive officer

 
A-16
 

SCHEDULE OF EXCHANGES OF 7⅝% SENIOR NOTES
 
The following exchanges of a part of this Global Note for other 7⅝% Senior Notes have been made:
 
Date of Exchange
Amount of Decrease in Principal Amount of this Global Note
Amount of Increase in Principal Amount of this Global Note
Principal Amount of this Global Note Following Such Decrease (or Increase)
Signature of Authorized Officer of Trustee or 7⅝% Senior Note Custodian
         
         


 
A-17
 

EXHIBIT B
 
FORM OF NOTATIONAL GUARANTEE
 
Each Guarantor listed below (hereinafter referred to as the “ Guarantor ,” which term includes any successors or assigns under that certain Indenture, dated as of October 20, 2010, by and among Tutor Perini Corporation (the “ Issuer ”), the Guarantors party thereto and the Trustee (as amended and supplemented from time to time, the “ Indenture ”) and any additional Guarantors) has guaranteed the Notes and the obligations of the Issuer under the Indenture, which include (i) the due and punctual payment of the principal of, premium, if any, and interest on the Notes of the Issuer, whether at stated maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal and premium, if any, and (to the extent permitted by law) interest on any interest, if any, on the Notes, and the due and punctual performance of all other obligations of the Issuer to the Holders or the Trustee all in accordance with the terms set forth in Article 10 of the Indenture, (ii) in case of any extension of time of payment or renewal of any Notes or any such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise, and (iii) the payment of any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Guarantee or the Indenture.
 
The obligations of each Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to such Indenture for the precise terms of this Guarantee.
 
No stockholder, employee, officer, director, general or limited partner, member or incorporator, as such, past, present or future of each Guarantor shall have any liability under this Guarantee by reason of his or its status as such stockholder, employee, officer, director, general or limited partner, member or incorporator.
 
This is a continuing Guarantee and shall remain in full force and effect and shall be binding upon each Guarantor and its successors and assigns until full and final payment of all of the Issuer’s obligations under the Notes and Indenture or until released in accordance with the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders, and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof.  This is a Guarantee of payment and not of collectability.
 
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers.  The Obligations of each Guarantor under its Guarantee shall be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance under applicable law.
 

Form of Guarantee
 
 
 

THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
 
Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated.
 

 
-2-
 

Dated as of October 20, 2010
 
 
PERINI BUILDING COMPANY, INC.
 

 
 
By:
 /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
Executive Vice President
 
 
PERINI ENVIRONMENTAL SERVICES, INC.
 
 
INTERNATIONAL CONSTRUCTION MANAGEMENT SERVICES, INC.
 
 
PERINI MANAGEMENT SERVICES, INC.
 
 
BOW EQUIPMENT LEASING COMPANY, INC.
 
 
R.E. DAILEY & CO.
 
 
PERINI LAND AND DEVELOPMENT COMPANY, INC.
 
 
PARAMOUNT DEVELOPMENT ASSOCIATES, INC.
 
 
PERCON CONSTRUCTORS, INC.
 
 
PERLAND CONSTRUCTION, INC.
 
 

 
 
 
By:
 /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
President
 

Signature Page to Guarantee
 
 
 


 
TUTOR-SALIBA LLC
 
TUTOR-SALIBA CORPORATION
 

 
 
By:
 /s/John D. Barrett  
 
 
 
Name:
John D. Barrett
 
 
 
Title:
Senior Vice President
 
 

 
 
POWERCO ELECTRIC CORP.
 
TUTOR HOLDINGS, LLC
 
TUTOR PACIFIC CONSTRUCTION, LLC
 
TUTOR MICRONESIA CONSTRUCTION, LLC
 
G.W. MURPHY CONSTRUCTION COMPANY, INC.
 
E.E. BLACK, LIMITED
 
BLACK CONSTRUCTION INVESTMENTS, INC.
 

 
 
By:
 /s/John D. Barrett  
 
 
 
Name:
John D. Barrett
 
 
 
Title:
Vice President
 

Signature Page to Guarantee
 
 
 


 
JAMES A. CUMMINGS, INC.
 

 
 
By:
 /s/William Derrer  
 
 
 
Name:
William Derrer
 
 
 
Title:
President and Chief Executive Officer
 

Signature Page to Guarantee
 
 
 


 
CHERRY HILL CONSTRUCTION, INC.
 

 
 
By:
 /s/James Laing  
 
 
 
Name:
James Laing
 
 
 
Title:
President
 

Signature Page to Guarantee
 
 
 


 
RUDOLPH AND SLETTEN, INC.
 

 
 
By:
 /s/Martin B. Sisemore  
 
 
 
Name:
Martin B. Sisemore
 
 
 
Title:
President and Chief Executive Officer
 

Signature Page to Guarantee
 
 
 


 
DESERT PLUMBING & HEATING CO., INC.
 

 
 
By:
 /s/Derrick I. Hodson  
 
 
 
Name:
Derrick I. Hodson
 
 
 
Title:
President
 

Signature Page to Guarantee
 
 
 


 
TPC AGGREGATES, LLC
 

 
 
By:
 /s/James A. Frost  
 
 
 
Name:
James A. Frost
 
 
 
Title:
Executive Vice President
 

Signature Page to Guarantee
 
 
 


 
DANIEL J. KEATING CONSTRUCTION COMPANY, LLC
 

 
 
By:
 /s/Daniel J. Keating, III  
 
 
 
Name:
Daniel J. Keating, III
 
 
 
Title:
Chief Executive Officer
 
 

 

 

Signature Page to Guarantee

 
 
 

EXHIBIT C
 
[FORM OF CERTIFICATE TO BE DELIVERED
 
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
 
Tutor Perini Corporation
15901 Olden Street
Sylmar, CA 91342
 
Facsimile: (818) 367-9574
 
Attention:  Chief Financial Officer
 
Wilmington Trust FSB
246 Goose Lane, Suite 105
Guilford, CT  06437
Facsimile:  (203) 453-1183
Attention:  Tutor Perini Administrator
 
 
Re:
Tutor Perini Corporation (“ TPC ”)
 
 
7⅝% Senior Notes due 2018 (the “ Notes ”)
 
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal amount at maturity of the Notes, we hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A (“ Rule 144A ”) under the United States Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, we hereby further certify that the Notes are being transferred to a person that we reasonably believe is purchasing the Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Notes are being transferred in compliance with any applicable blue sky securities laws of any state of the United States.
 
You and TPC are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
 
 
Very truly yours,
 

 
                                 [Name of Transferor]
 
By:        
 
                               Authorized Signature

Signature guarantee:                                                                                                                                          
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion
program)

 
C-1
 

EXHIBIT D
 
[FORM OF CERTIFICATE TO BE DELIVERED
 
IN CONNECTION WITH TRANSFERS
 
PURSUANT TO REGULATION S]
 
Tutor Perini Corporation
15901 Olden Street
Sylmar, CA 91342
 
Facsimile: (818) 367-9574
 
Attention:  Chief Financial Officer
 
Wilmington Trust FSB
246 Goose Lane, Suite 105
Guilford, CT  06437
Facsimile:  (203) 453-1183
Attention:  Tutor Perini Administrator

 
Re:
Tutor Perini Corporation (“ TPC ”)
 
 
7⅝% Senior Notes due 2018 (the “ Notes ”)
 
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the U.S. Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, we represent that:
 
(1)           the offer of the Notes was not made to a person in the United States;
 
(2)           either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
 
(3)           no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
 
(4)           the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
 
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b) or Rule 904(b) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b) or Rule 904(b), as the case may be.
 

 
D-1
 

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

 
                                 [Name of Transferor]
 
By:        
 
                               Authorized Signature

Signature guarantee:
 
 
(Signature must be guaranteed by a participant in a recognized signature guarantee
 
medallion program)


 

 
D-2
 

Exhibit 4.2

 

REGISTRATION RIGHTS AGREEMENT
 
Dated as of October 20, 2010
 
Among
 
TUTOR PERINI CORPORATION
 
THE GUARANTORS NAMED HEREIN
 
and
 
DEUTSCHE BANK SECURITIES INC.
 
BMO CAPITAL MARKETS CORP.
 
COMERICA SECURITIES, INC.
 
SANTANDER INVESTMENT SECURITES INC.
 
MITSUBISHI UFJ SECURITIES (USA), INC.
 
 
and
 
U.S. BANCORP INVESTMENTS, INC.
 

 

 
7⅝ % Senior Notes due 2018
 

 


 
 
 

TABLE OF CONTENTS

     
Page
       
1.
 
Definitions
1
2.
 
Exchange Offer
4
3.
 
Shelf Registration
8
4.
 
Additional Interest
9
5.
 
Registration Procedures
10
6.
 
Registration Expenses
18
7.
 
Indemnification and Contribution.
18
8.
 
Rule 144A
22
9.
 
Underwritten Registrations
23
10.
 
Miscellaneous
23


 
-ii-
 

REGISTRATION RIGHTS AGREEMENT
 
This Registration Rights Agreement (this “ Agreement ”) is dated as of October 20, 2010, among TUTOR PERINI CORPORATION, a Massachusetts Corporation (the “ Company ”), the guarantors listed on the signature pages hereto, (the “ Guarantors ”) and DEUTSCHE BANK SECURITIES INC., as representative (the “Representative”) of the several initial purchasers (the “ Initial Purchasers ”) named in Schedule I to the Purchase Agreement (as defined below).  The Company and the Guarantors are collectively referred to as the “ Issuers ,”
 
This Agreement is entered into in connection with the Purchase Agreement, dated as of October 15, 2010, between the Issuers and the Representative on behalf of the Initial Purchasers (the “ Purchase Agreement ”), which provides for, among other things, the sale by the Issuers to the Initial Purchasers of $300,000,000 aggregate principal amount of the Company’s 7⅝% Senior Notes Due 2018 (the “ Notes ”).  The Notes are issued under an indenture, dated as of October 20, 2010 (as amended or supplemented from time to time, the “ Indenture ”), among the Issuers and Wilmington Trust FSB, as trustee (the “ Trustee ”).  Pursuant to the Purchase Agreement and the Indenture, the Guarantors are required to unconditionally guarantee (collectively, the “ Guarantees ”) on a senior basis the Company’s obligations under the Notes and the Indenture.  The Notes and the Guarantees are collectively referred to as the “ Securities .”  In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed to provide the registration rights set forth in this Agreement for the benefit of the Initial Purchasers and, except as otherwise set forth herein, any subsequent holder or holders of the Notes.  The execution and delivery of this Agreement is a condition to the Initial Purchasers’ obligation to purchase the Notes under the Purchase Agreement.
 
The parties hereby agree as follows:
 
1.   Definitions
 
As used in this Agreement, the following terms shall have the following meanings:
 
Additional Interest :  See Section 4(a) hereof.
 
Advice :  See the last paragraph of Section 5 hereof.
 
Agreement :  See the introductory paragraphs hereto.
 
Applicable Period :  See Section 2(b) hereof.
 
Business Day :  Shall have the meaning ascribed to such term in Rule 14d-1 under the Exchange Act.
 
Company :  See the introductory paragraphs hereto.
 
Effectiveness Date :  With respect to (i) the Exchange Offer Registration Statement, the 365th day after the Issue Date and (ii) any Shelf Registration Statement, the 90th day after the Filing Date
 

 
 
 

with respect thereto; provided , however , that if the Effectiveness Date would otherwise fall on a day that is not a Business Day, then the Effectiveness Date shall be the next succeeding Business Day.
 
Effectiveness Period :  See Section 3(a) hereof.
 
Event Date :  See Section 4(b) hereof.
 
Exchange Act :  The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
 
Exchange Notes :  See Section 2(a) hereof.
 
Exchange Offer :  See Section 2(a) hereof.
 
Exchange Offer Registration Statement :  See Section 2(a) hereof.
 
Exchange Securities :  See Section 2(a) hereof.
 
Filing Date :  The 30th day after the delivery of a Shelf Notice as required pursuant to Section 2(c) hereof; provided , however , that if the Filing Date would otherwise fall on a day that is not a Business Day, then the Filing Date shall be the next succeeding Business Day.
 
FINRA :  See Section 5(r) hereof.
 
Guarantees :  See the introductory paragraphs hereto.
 
Guarantors :  See the introductory paragraphs hereto.
 
Holder :  Any holder of a Registrable Security or Registrable Securities.
 
Indenture :  See the introductory paragraphs hereto.
 
Information :  See Section 5(n) hereof.
 
Initial Purchasers :  See the introductory paragraphs hereto.
 
Initial Shelf Registration :  See Section 3(a) hereof.
 
Inspectors :  See Section 5(n) hereof.
 
Issue Date :  October 20, 2010, the date of original issuance of the Notes.
 
Issuer :  See the introductory paragraphs hereto.
 
New Guarantees :  See Section 2(a) hereof.
 
Notes :  See the introductory paragraphs hereto.
 

 
-2-
 

Participant :  See Section 7(a) hereof.
 
Participating Broker-Dealer :  See Section 2(b) hereof.
 
Person :  An individual, trustee, corporation, partnership, limited liability company, joint stock company, trust, unincorporated association, union, business association, firm or other legal entity.
 
Private Exchange :  See Section 2(b) hereof.
 
Private Exchange Notes :  See Section 2(b) hereof.
 
Prospectus :  The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rules 430A or 430C under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
 
Purchase Agreement :  See the introductory paragraphs hereof.
 
Records :  See Section 5(n) hereof.
 
Registrable Securities :  Each Security upon its original issuance and at all times subsequent thereto, each Exchange Security as to which Section 2(c)(iv) hereof is applicable upon original issuance and at all times subsequent thereto and each Private Exchange Note upon original issuance thereof and at all times subsequent thereto, and, in each case, the related Guarantees, until, in each case, the earliest to occur of (i) a Registration Statement (other than, with respect to any Exchange Securities as to which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration Statement) covering such Security, Exchange Security or Private Exchange Note (and the related Guarantees) has been declared effective by the SEC and such Security, Exchange Security or such Private Exchange Note (and the related Guarantees), as the case may be, has been disposed of in accordance with such effective Registration Statement, (ii) such Security has been exchanged pursuant to the Exchange Offer for an Exchange Security or Exchange Securities that may be resold without restriction under state and federal securities laws, (iii) such Security, Exchange Security or Private Exchange Note (and the related Guarantees), as the case may be, ceases to be outstanding for purposes of the Indenture or (iv) the date upon which such Note, Exchange Note (and the related Guarantees) or Private Exchange Note has been resold in compliance with Rule 144 provided such Note, Exchange Note or Private Exchange Note does not bear any restrictive legend relating to the Securities Act and does not bear a restricted CUSIP number.
 
Registration Statement :  Any registration statement of the Company that covers, any of the Securities, the Exchange Securities or the Private Exchange Notes (and the related Guarantees) filed with the SEC under the Securities Act, including, in each case, the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
 
Rule 144 :  Rule 144 under the Securities Act.
 

 
-3-
 

Rule 144A :  Rule 144A under the Securities Act.
 
Rule 405 :  Rule 405 under the Securities Act.
 
Rule 415 :  Rule 415 under the Securities Act.
 
Rule 424 :  Rule 424 under the Securities Act.
 
SEC :  The U.S. Securities and Exchange Commission.
 
Securities :  See the introductory paragraphs hereto.
 
Securities Act :  The Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
 
Shelf Notice :  See Section 2(c) hereof.
 
Shelf Registration :  See Section 3(b) hereof.
 
Shelf Registration Statement :  Any Registration Statement relating to a Shelf Registration.
 
Shelf Suspension Period :  See Section 3(a) hereof.
 
Subsequent Shelf Registration :  See Section 3(b) hereof.
 
TIA :  The Trust Indenture Act of 1939, as amended.
 
Trustee :  The trustee under the Indenture and the trustee under any indenture (if different) governing the Exchange Securities and Private Exchange Notes (and the related Guarantees).
 
Underwritten registration or underwritten offering :  A registration in which securities of the Issuers are sold to an underwriter for reoffering to the public.
 
Except as otherwise specifically provided, all references in this Agreement to acts, laws, statutes, rules, regulations, releases, forms, no-action letters and other regulatory requirements (collectively, “ Regulatory Requirements ”) shall be deemed to refer also to any amendments thereto and all subsequent Regulatory Requirements adopted as a replacement thereto having substantially the same effect therewith; provided that Rule 144 shall not be deemed to amend or replace Rule 144A.
 
2.   Exchange Offer
 
(a)   Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Company shall use its commercially reasonable efforts to file with the SEC a Registration Statement (the “ Exchange Offer Registration Statement ”) on an appropriate registration form with respect to a registered offer (the “ Exchange Offer ”) to exchange any and all of the Registrable Securities for a like aggregate principal amount  of debt securities of the Company (the “ Exchange
 

 
-4-
 

Notes ”), guaranteed, to the extent applicable, on an unsecured senior basis by the Guarantors (the “ New Guarantees ” and, together with the Exchange Notes, the “ Exchange Securities ”), that are identical in all material respects to the Notes, as applicable, except that (i) the Exchange Notes shall contain no restrictive legend thereon, (ii) interest thereon shall accrue from the last date on which interest was paid on such Notes or, if no such interest has been paid, from the Issue Date and (iii) which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA.  The Exchange Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws.  The Company shall use its commercially reasonable efforts to (x) prepare and file with the SEC the Exchange Offer Registration Statement with respect to the Exchange Offer; (y) keep the Exchange Offer open for at least 30 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 5th Business Day following the expiration of the Exchange Offer.
 
Each Holder (including, without limitation, each Participating Broker-Dealer) that participates in the Exchange Offer, as a condition to participation in the Exchange Offer, will be required to represent to the Company in writing (which may be contained in the applicable letter of transmittal) that:  (i) any Exchange Securities acquired in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder has an arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Securities included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) if such Holder is not a broker-dealer, neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Securities from such Holder is engaging in or intends to engage in a distribution of the Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder).
 
Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis , solely with respect to Registrable Securities that are Private Exchange Notes (and the related Guarantees), Exchange Securities as to which Section 2(c)(iv) is applicable and Exchange Securities held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Securities (other than Private Exchange Notes (and the related Guarantees) and Exchange Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
 

 
-5-
 

                         No securities other than the Exchange Securities and the Notes (and the related guarantees) shall be included in the Exchange Offer Registration Statement.
 
(b)   The Company shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a “ Participating Broker-Dealer ”), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC.  Such “Plan of Distribution” section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities in compliance with the Securities Act.
 
The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Securities; provided , however , that such period shall not be required to exceed 90 days, such longer period if extended pursuant to the last paragraph of Section 5 hereof (the “ Applicable Period ”).
 
If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Company, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “ Private Exchange ”) for such Notes held by any such Holder, a like principal amount  of notes (the “ Private Exchange Notes ”) of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes.  The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau.
 
In connection with the Exchange Offer, the Company shall:
 
(1)   mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
 
(2)   use their respective commercially reasonable efforts to keep the Exchange Offer open for not less than 30 Business Days from the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law);
 
(3)   utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York or in Wilmington, Delaware;
 

 
-6-
 


 
(4)   permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and
 
(5)   otherwise comply in all material respects with all laws, rules and regulations applicable to the Exchange Offer.
 
As soon as practicable after the close of the Exchange Offer and any Private Exchange, the Company shall:
 
(1)   accept for exchange all Registrable Securities validly tendered and not validly withdrawn pursuant to the Exchange Offer and any Private Exchange;
 
(2)   deliver to the Trustee for cancellation all Registrable Securities so accepted for exchange; and
 
(3)   cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount  to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
 
The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company; and (iii) all governmental approvals shall have been obtained, which approvals the Company deem necessary for the consummation of the Exchange Offer or Private Exchange.
 
The Exchange Securities and the Private Exchange Notes (and related guarantees) shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Securities shall not be subject to the transfer restrictions set forth in the Indenture.  The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.
 
(c)   If, (i) because of any change in law or in cur­rently prevailing interpretations of the staff of the SEC, the Company is not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 5th Business Days of the expiration of the Exchange Offer, (iii) any holder of Private Exchange Notes so requests in writing to the Company at any time within 30 days after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Of-
 
-7-
 

fer, such Holder does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 30 days after such Holder first becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of this sentence, then the Company shall promptly deliver to the Trustee (to deliver to the Holders) written notice thereof (the “ Shelf Notice ”) and shall file a Shelf Regis­tration pursuant to Section 3 hereof.
 
3.   Shelf Registration
 
If at any time a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then:
 
(a)   Shelf Registration .  The Company shall promptly file with the SEC a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Registrable Securities (the “ Initial Shelf Registration ”).  The Company shall use its commercially reasonable efforts to file with the SEC the Initial Shelf Registration on or prior to the Filing Date.  The Initial Shelf Registration shall be on Form S-1 or another appropriate form permitting registration of such Registrable Securities for resale by Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings).  The Company shall not permit any securities other than the Registrable Securities and the Guarantees and the Notes and the related guarantees to be included in the Initial Shelf Registration or any Subsequent Shelf Registration (as defined below).
 
The Company shall use its respective commercially reasonable efforts to cause the Shelf Registration to be declared effective under the Securities Act on or prior to the Effectiveness Date and to keep the Initial Shelf Registration continuously effective under the Securities Act until the earliest of (i) the date that is two years from the Issue Date, (ii) such shorter period ending when all Registrable Securities covered by the Initial Shelf Registration have been sold in the manner set forth and as contemplated in the Initial Shelf Registration or, if applicable, a Subsequent Shelf Registration or (iii) the date upon which all Registrable Securities have been sold in compliance with Rule 144A (the “ Effectiveness Period ”); provided , however , that the Effectiveness Period in respect of the Initial Shelf Registration shall be extended to the extent required to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the Securities Act and as otherwise provided herein.
 
Notwithstanding anything to the contrary in this Agreement, at any time, the Company may delay the filing of any Initial Shelf Registration Statement or delay or suspend the effectiveness thereof, for a reasonable period of time, but not in excess of 60 consecutive days or more than three (3) times during any calendar year (each, a “ Shelf Suspension Period ”), if the Board of Directors of the Company determines reasonably and in good faith that the filing of any such Initial Shelf Registration Statement or the continuing effectiveness thereof would require the disclosure of non-public material information that, in the reasonable judgment of the Board of Directors of the Company, would be detrimental to the Company if so disclosed or would otherwise materially adversely affect a financing, acquisition, disposition, merger or other material transaction or such action is required by applicable law.

 
-8-
 
(b)   Withdrawal of Stop Orders; Subsequent Shelf Registrations .  If the Initial Shelf Registration or any Subsequent Shelf Registration ceases to be effective for any reason at any time during the Effectiveness Period (other than because of the sale of all of the Securities registered thereunder), the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall file an additional Shelf Registration Statement pursuant to Rule 415 covering all of the Registrable Securities covered by and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a “ Subsequent Shelf Registration ”).  If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to cause the Subsequent Shelf Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such subsequent Shelf Registration continuously effective for a period equal to the number of days in the Effectiveness Period less the aggregate number of days during which the Ini­tial Shelf Registration or any Subsequent Shelf Registration was previously continuously effective.  As used herein the term “ Shelf Registration ” means the Initial Shelf Registration and any Subsequent Shelf Registration.
 
(c)   Supplements and Amendments .  The Company shall promptly supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration, if required by the Securities Act, or if reasonably requested by the Holders of a majority in aggregate principal amount  of the Registrable Securities (or their counsel) covered by such Registration Statement with respect to the information included therein with respect to one or more of such Holders, or, if reasonably requested by any underwriter of such Registrable Securities, with respect to the information included therein with respect to such underwriter.
 
4.   Additional Interest
 
(a)   The Company and the Initial Purchasers agree that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with precision.  Accordingly, the Company agrees to pay, jointly and severally, as liquidated damages, additional interest on the Notes (“ Additional Interest ”) if (A) the Exchange Offer Registration Statement has not been declared effective on or prior to the 365th day after the Issue Date, (B) the Company has not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to 30 Business Days after the Effectiveness Date for the Exchange Offer Registration Statement, (C)  the Company is required to file a Shelf Registration Statement and such Shelf Registration Statement is not declared effective on or prior to the 90th day after the date such Shelf Registration Statement filing was requested or required or (D) if applicable, a Shelf Registration has been declared effective and such Shelf Registration ceases to be effective at any time during the Effectiveness Period (other than because of the sale of all of the Securities registered thereunder), then Additional Interest shall accrue on the principal amount of the Notes at a rate of 0.25% per annum (which rate will be increased by an additional 0.25% per annum for each subsequent 90 day period that such Additional Interest continues to accrue, provided that the rate at which such Additional Interest accrues may in no event exceed 1.00% per annum) (such Additional Interest to be calculated by the Company) commencing on the (w) 366th day after the Issue Date, in the case of (A) above, (x) 31st Business Day after the Effectiveness Date for the Exchange Offer Registration Statement, in the case of (B) above, (y) the 366th day after the date such Shelf Registration Statement filing was requested
 

 
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or required in the case of (C) above or (z) the day such Shelf Registration ceases to be effective in the case of (D) above; provided , however , that upon the effectiveness of the applicable Exchange Offer Registration Statement (in the case of (A) of this Section 4), upon the exchange of the Exchange Securities for all Securities tendered (in the case of clause (B) of this Section 4), upon the effectiveness of the applicable Shelf Registration Statement (in the case of (C) of this Section 4), or upon the effectiveness of the applicable Shelf Registration Statement which had ceased to remain effective (in the case of (D) of this Section 4), Additional Interest on the Notes in respect of which such events relate as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.  Notwithstanding any other provisions of this Section 4, the Company shall not be obligated to pay Additional Interest provided in Sections 4(a)(C) during a Shelf Suspension Period permitted by Section 3(a) hereof; provided , that no Additional Interest shall accrue on the Notes following the second anniversary of the Issue Date.
 
(b)   The Company shall notify the Trustee within one business day after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “ Event Date ”).  Any amounts of Additional Interest due pursuant to (a) of this Section 4 will be payable in cash semiannually on each May 1 and November 1 (to the holders of record on the April 15 and October 15 immediately preceding such dates), commencing with the first such date occurring after any such Additional Interest commences to accrue.  The amount of Additional Interest will be determined by the Company by multiplying the applicable Additional Interest rate by the principal amount of the Registrable Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 365day year comprised of twelve 30 day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 365.
 
5.   Registration Procedures
 
In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Company shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder the Company shall:
 
(a)   Prepare and file with the SEC (prior to the applicable Filing Date in the case of a Shelf Registration), a Registration Statement or Registration Statements as prescribed by Section 2 or 3 hereof, and use its commercially reasonable efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided , however , that if (1) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period relating thereto from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Exchange Offer, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Company shall furnish to and afford counsel for the Holders of the Registrable Securities covered by such Registration Statement (with respect to a Registration Statement filed pursuant to Section 3 hereof) or counsel for such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, and counsel to the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by ref-
 

 
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erence therein and all exhibits thereto) proposed to be filed (in each case at least three business days prior to such filing).  The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority in aggregate principal amount  of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object.
 
(b)   Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period, the Applicable Period or until consummation of the Exchange Offer, as the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424; and comply with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by an Participating Broker-Dealer covered by any such Prospectus in all material respects.  The Company shall be deemed not to have used its commercially reasonable efforts to keep a Registration Statement effective if it voluntarily takes any action that is reasonably expected to result in selling Holders of the Registrable Securities covered thereby or Participating Broker-Dealers seeking to sell Exchange Securities not being able to sell such Registrable Securities or such Exchange Securities during that period unless such action is required by applicable law or permitted by this Agreement.
 
(c)   If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period relating thereto from whom the Company has received written notice that it will be a Participating Broker-Dealer in the Exchange Offer, notify the selling Holders of Registrable Securities (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their counsel and the managing underwriters, if any, promptly (but in any event within three Business Days), and confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, at the sole expense of the Company, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities or resales of Exchange Securities by Participating Broker-Dealers the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(m) hereof cease to be true and correct, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a
 

 
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Registration Statement or any of the Registrable Securities or the Exchange Securities to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in or amendments or supplements to such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Company’s determination that a post-effective amendment to a Registration Statement would be appropriate.
 
(d)   Use its commercially reasonable efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities or the Exchange Securities to be sold by any Participating Broker-Dealer, for sale in any jurisdiction.
 
(e)   If a Shelf Registration is filed pursuant to Section 3 and if requested during the Effectiveness Period by the managing underwriter or underwriters (if any) or the Holders of a majority in aggregate principal amount  of the Registrable Securities being sold in connection with an underwritten offering, (i) as promptly as practicable incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters (if any), such Holders or counsel for either of them reasonably request to be included therein, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement.
 
(f)   If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, furnish to each selling Holder of Registrable Securities (with respect to a Registration Statement filed pursuant to Section 3 hereof) and to each such Participating Broker-Dealer who so requests (with respect to any such Registration Statement) and to their respective counsel and each managing underwriter, if any, at the sole expense of the Company, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits.
 
(g)   If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is
 

 
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 required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, deliver to each selling Holder of Registrable Securities (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their respective counsel, and the underwriters, if any, at the sole expense of the Company, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 5, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities or each such Participating Broker-Dealer, as the case may be, and the underwriters or agents, if any, and dealers, if any, in connection with the offering and sale of the Registrable Securities covered by, or the sale by Participating Broker-Dealers of the Exchange Securities pursuant to, such Prospectus and any amendment or supplement thereto.
 
(h)   Prior to any public offering of Registrable Securities or any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, use its commercially reasonable efforts to register or qualify, and to cooperate with the selling Holders of Registrable Securities or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, Participating Broker-Dealer, or the managing underwriter or underwriters reasonably request in writing; provided , however , that where Exchange Securities held by Participating Broker-Dealers or Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 5(h), keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Exchange Securities held by Participating Broker-Dealers or the Registrable Securities covered by the applicable Registration Statement; provided , however , that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
 
(i)   If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate with the selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and  delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such Registrable Securities to be in such denominations (subject to applicable requirements contained in the Indenture) and registered in such names as the managing underwriter or underwriters, if any, or Holders may request.
 
 
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(j)   Use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other U.S. governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all respects with the filing of such Registration Statement and the granting of such approvals.
 
(k)   If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, upon the occurrence of any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole expense of the Company, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder (with respect to a Registration Statement filed pursuant to Section 3 hereof) or to the purchasers of the Exchange Securities to whom such Prospectus will be delivered by a Participating Broker-Dealer (with respect to any such Registration Statement), any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 
(l)   Prior to the effective date of the first Registration Statement relating to the Registrable Securities, (i) provide the Trustee with certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number for the Registrable Securities.
 
(m)   In connection with any underwritten offering of Registrable Securities pursuant to a Shelf Registration, enter into an underwriting agreement as is customary in underwritten offerings of debt securities similar to the Securities (including, without limitation, a customary condition to the obligations of the underwriters that the underwriters shall have received “cold comfort” letters and updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of the Company, or of any business acquired by the Company, for which financial statements and financial data are, or are required to be, included or incorporated by reference in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings of debt securities similar to the Securities), and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities and, in such connection, (i) make such representations and warranties to, and covenants with, the underwriters with respect to the business of the Company (including any acquired business, properties or entity, if applicable), and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorpo-
 

 
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rated by reference therein, in each case, as are customarily made by Issuer to underwriters in underwritten offerings of debt securities similar to the Securities, and confirm the same in writing if and when requested; (ii) obtain the written opinions of counsel to the Company, and written updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the underwriters covering the matters customarily covered in opinions reasonably requested in underwritten offerings; and (iii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the sellers and underwriters, if any, than those set forth in Section 7 hereof (or such other provisions and procedures reasonably acceptable to Holders of a majority in aggregate principal amount  of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents, if any).  The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
 
(n)   If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, make available for inspection by any Initial Purchaser, any selling Holder of such Registrable Securities being sold (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer, as the case may be, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney, accountant or other agent retained by any such selling Holder or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, or underwriter (any such Initial Purchasers, Holders, Participating Broker-Dealers, underwriters, attorneys, accountants or agents, collectively, the “ Inspectors ”), upon written request, at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and instruments of the Company and subsidiaries of the Company (collectively, the “ Records ”), as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company and any of its subsidiaries to supply all information (“ Information ”) reasonably requested by any such Inspector in connection with such due diligence responsibilities.  Each Inspector shall agree in writing that it will keep the Records and Information confidential, to use the Information only for due diligence purposes, to abstain from using the Information as the basis for any market transactions in Securities of the Company and that it will not disclose any of the Records or Information that the Company determines, in good faith, to be confidential and notifies the Inspectors in writing are confidential unless (i) the disclosure of such Records or Information is necessary to avoid or correct a misstatement or omission in such Registration Statement or Prospectus, (ii) the release of such Records or Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such Records or Information is necessary or advisable, in the opinion of counsel for any Inspector, in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Inspector and arising out of, based upon, relating to, or involving this Agreement or the Purchase Agreement, or any transactions contemplated hereby or thereby or arising hereunder or thereunder, or (iv) the information in such Records or Information has been made generally available to the public other than by an Inspector or an “affiliate” (as defined in Rule 405) thereof; provided , however , that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Inspec-
 

 
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tor pursuant to clauses (i) or (ii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (o)) and that such Inspector shall take such actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any Inspector.
 
(o)   Provide an indenture trustee for the Registrable Securities or the Exchange Securities, as the case may be, and cause the Indenture or the trust indenture provided for in Section 2(a) hereof, as the case may be, to be qualified under the TIA not later than the effective date of the first Registration Statement relating to the Registrable Securities; and in connection therewith, cooperate with the trustee under any such indenture and the Holders of the Registrable Securities, to effect such changes (if any) to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its commercially reasonable efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner.
 
(p)   Comply in all material respects with all applicable rules and regulations of the SEC and make generally available to its securityholders with regard to any applicable Registration Statement, a consolidated earning statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any fiscal quarter (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company, after the effective date of a Registration Statement, which statements shall cover said 12-month periods; provided that this requirement shall be deemed satisfied by the Company complying with Section 4.03 of the Indenture.
 
(q)   Upon consummation of the Exchange Offer or a Private Exchange, obtain an opinion of counsel to the Company, in a form customary for underwritten transactions, addressed to the Trustee for the benefit of all Holders of Registrable Securities participating in the Exchange Offer or the Private Exchange, as the case may be, that the Exchange Securities or Private Exchange Notes (and the related Guarantees), as the case may be, the related guarantee and the related indenture constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, subject to customary exceptions and qualifications.  If the Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Registrable Securities by Holders to the Company (or to such other Person as directed by the Company), in exchange for the Exchange Securities or the Private Exchange Notes (and the related Guarantees), as the case may be, the Company shall mark, or cause to be marked, on such Registrable Securities that such Registrable Securities are being cancelled in exchange for the Exchange Securities or the Private Exchange Notes (and the related Guarantees), as the case may be; in no event shall such Registrable Securities be marked as paid or otherwise satisfied.
 
 
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(r)   Use reasonable efforts to cooperate with each seller of Registrable Securities covered by any Registration Statement and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (the “ FINRA ”).
 
(s)   Use its respective commercially reasonable efforts to take all other steps reasonably necessary to effect the registration of the Exchange Securities and/or Registrable Securities covered by a Registration Statement contemplated hereby.
 
The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such seller and the distribution of such Registrable Securities as the Company may, from time to time, reasonably request.  The Company may exclude from such registration the Registrable Securities of any seller so long as such seller fails to furnish such information within a reasonable time after receiving such request.  Each seller as to which any Shelf Registration is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such seller not materially misleading.
 
If any such Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such Holder, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required.
 
Each Holder of Registrable Securities and each Participating Broker-Dealer agrees by its acquisition of such Registrable Securities or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, that, upon actual receipt of any notice from the Company of the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus or Exchange Securities to be sold by such Holder or Participating Broker-Dealer, as the case may be, until such Holder’s or Participating Broker-Dealer’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until it is advised in writing (the “ Advice ”) by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto.  In the event that the Company shall give any such notice, each of the Applicable Period and the Effectiveness Period shall be extended by the number of days during such periods from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, shall have received (x) the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
 
 
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6.   Registration Expenses
 
All fees and expenses incident to the performance of or compliance with this Agreement by the Company of its obligations under Sections 2, 3, 4, 5 and 8 shall be borne by the Company, whether or not the Exchange Offer Registration Statement or any Shelf Registration Statement is filed or becomes effective or the Exchange Offer is consummated, including, without limitation, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with FINRA in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with Blue Sky qualifications of the Registrable Securities or Exchange Securities and determination of the eligibility of the Registrable Securities or Exchange Securities for investment under the laws of such jurisdictions in the United States (x) where the holders of Registrable Securities are located, in the case of the Exchange Securities, or (y) as provided in Section 5(h) hereof, in the case of Registrable Securities or Exchange Securities to be sold by a Participating Broker-Dealer during the Applicable Period)), (ii) printing expenses, including, without limitation, printing prospectuses if the printing of prospectuses is requested by the managing underwriter or underwriters, if any, by the Holders of a majority in aggregate principal amount  of the Registrable Securities included in  any Registration Statement or in respect of Registrable Securities or Exchange Securities to be sold by any Participating Broker-Dealer during the Applicable Period, as the case may be, (iii) fees and expenses of the Trustee, any exchange agent and their counsel, (iv) fees and disbursements of counsel for the Company and, in the case of a Shelf Registration, reasonable fees and disbursements of one special counsel for all of the sellers of Registrable Securities selected by the Holder of a majority in aggregate principal amount  of Registrable Securities covered by such Shelf Registration (which counsel shall be reasonably satisfactory to the Company) exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements of all independent certified public accountants referred to in Section 5(m) hereof (including, without limitation, the expenses of any “cold comfort” letters required by or incident to such performance), (vi) rating agency fees, if any, and any fees associated with making the Registrable Securities or Exchange Securities eligible for trading through The Depository Trust Company, (vii) Securities Act liability insurance, if the Company desires such insurance, (viii) fees and expenses of all other Persons retained by the Company, (ix) internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees of the Company performing legal or accounting duties), (x) the expense of any annual audit, (xi) any fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange, and the obtaining of a rating of the securities, in each case, if applicable and (xii) the expenses relating to printing, word processing and distributing all Registration Statements, underwriting agreements, indentures and any other documents necessary in order to comply with this Agreement.
 
7.   Indemnification and Contribution .
 
(a)   The Company and the Guarantors jointly and severally agree, to indemnify and hold harmless each Holder of Registrable Securities, and each Participating Broker-Dealer selling Exchange Securities during the Applicable Period, and each Person, if any, who controls such Person or its affiliates within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a “ Participant ”) against any losses, claims, damages or liabilities, joint or several, to which any Participant may become subject under the Securities Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon:
 
 
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(i)   any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement (or any amendment thereto), or Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary prospectus; or
 
(ii)   the omission or alleged omission to state, in any Registration Statement (or any amendment thereto), or Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary prospectus or any other document or any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading,
 
except, in each case, insofar as such losses, claims, damages or liabilities are arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or any Holder furnished to the Company in writing through the Initial Purchasers or any selling Holder expressly for use therein;
 
and agree (subject to the limitations set forth in the proviso to this sentence) to reimburse, as incurred, the Participant for any reasonable legal or other expenses incurred by the Participant in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided , however , neither the Company nor the Guarantors will be liable in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement (or any amendment thereto), or Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information relating to any Participant furnished to the Company by such Participant specifically for use therein. The indemnity provided for in this Section 7 will be in addition to any liability that the Company may otherwise have to the indemnified parties.  The Company and the Guarantors shall not be liable under this Section 7 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the Company and the Guarantors, which consent shall not be unreasonably withheld.
 
(b)   Each Participant, severally and not jointly, agrees to indemnify and hold harmless the Company, the Guarantors, their respective directors (or equivalent), their respective officers who sign any Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company, the Guarantors or any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, Prospectus, any amendment or supplement thereto, or any preliminary prospectus, or (ii) the omission or the alleged omission to state therein a material fact necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omis-
 

 
-19-
 

sion was made in reliance upon and in conformity with written information concerning such Participant, furnished to the Company by or on behalf of such Participant, specifically for use therein; and subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any reasonable legal or other expenses incurred by the Company, the Guarantors or any such director, officer or controlling person in connection with investigating or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action in respect thereof.  The indemnity provided for in this Section 7 will be in addition to any liability that the Participants may otherwise have to the indemnified parties.  The Participants shall not be liable under this Section 7 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the Participants, which consent shall not be unreasonably withheld.  The Company and the Guarantors shall not, without the prior written consent of such Participant, effect any settlement or compromise of any pending or threatened proceeding in respect of which such Participant is or could have been a party, or indemnity could have been sought hereunder by such Participant, unless such settlement (A) includes an unconditional written release of such Participant, in form and substance reasonably satisfactory to such Participant, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of such Participant.
 
 
(c)   Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above.  The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be reasonably satisfactory to the indemnified party.  Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest (based on the advice of counsel to the indemnified person); (ii) such action includes both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded (based on the advice of counsel to the indemnified person) that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.  It is understood and agreed that the
 

 
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 indemnifying person shall not, in connection with any proceeding or separate but related or substantially similar proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) representing the indemnified parties under paragraph (a) or paragraph (b) of this Section 7, as the case may be, who are parties to such action or actions.  Any such separate firm for any Participants shall be designated in writing by Participants who sold a majority in interest of the Registrable Securities and Exchange Securities sold by all such Participants in the case of paragraph (a) of this Section 7 or the Company in the case of paragraph (b) of this Section 7.  In the event that any Participants are indemnified persons collectively entitled, in connection with a proceeding or separate but related or substantially similar proceedings in a single jurisdiction, to the payment of fees and expenses of a single separate firm under this Section 7(c), and any such Participants cannot agree to a mutually acceptable separate firm to act as counsel thereto, then such separate firm for all such Indemnified Persons shall be designated in writing by Participants who sold a majority in interest of the Registrable Securities and Exchange Securities sold by all such Participants.  An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include any statement as to, or any admission of, fault, culpability or failure to act by or on behalf of any indemnified party.  All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred.
 
(d)   After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the third sentence of paragraph (c) of this Section 7 or (ii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party.  After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Section 7, in which case the indemnified party may effect such a settlement without such consent.
 
(e)   In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 7 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) (other than by virtue of the failure of an indemnified party to notify the indemnifying party of its right to indemnification pursuant to paragraph (a) or (b) of this Section 7, where such failure materially prejudices the indemnifying party (through the forfeiture of substantial rights or defenses)), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties on the one
 

 
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hand and the indemnified party on the other from the offering of the Securities or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof).  The relative benefits received by the Company and the Guarantors on the one hand and such Participant on the other shall be deemed to be in the same proportion that the total net proceeds from the offering (before deducting expenses) of the Securities received by the Company bear to the total discounts and commissions received by such Participant in connection with the sale of the Securities (or if such Participant did not receive discounts or commissions, the value or receiving the Securities).  The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or the Participants on the other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances.  The parties agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the first sentence of this paragraph (e).  Notwithstanding any other provision of this paragraph (e), no Participant shall be obligated to make contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation or net proceeds on the sale of Securities received by such Participant in connection with the sale of the Securities, less the aggregate amount of any damages that such Participant has otherwise been required to pay by reason of the untrue or alleged untrue statements or the omissions or alleged omissions to state a material fact, and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this paragraph (d), each person, if any, who controls a Participant within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Participants, and each director of the Company and the Guarantors, each officer of the Company and the Guarantors and each person, if any, who controls the Company and the Guarantors within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Company.
 
8.   Rule 144A
 
The Company covenants and agrees that it will use commercially reasonable efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in a timely manner in accordance with the requirements of the Securities Act and the Exchange Act and, if at any time the Company is not required to file such reports, the Company will, upon the request of any Holder or beneficial owner of Registrable Securities, make available such information necessary to permit sales pursuant to Rule 144A. The Company further covenants and agrees, for so long as any Registrable Securities remain outstanding that they will take such further action as any Holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144A unless the Company is then subject to Section 13 or 15(d) of the Exchange Act and reports filed thereunder satisfy the information requirements of Rule 144A then in effect.
 
 
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9.   Underwritten Registrations
 
The Company shall not be required to assist in an underwritten offering unless requested by the Holders of a majority in aggregate principal amount  of the Registrable Securities. If any of the Registrable Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Holders of a majority in aggregate principal amount of such Registrable Securities included in such offering and shall be reasonably acceptable to the Company.
 
No Holder of Registrable Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.
 
10.   Miscellaneous
 
(a)   No Inconsistent Agreements .  The Company has not as of the date hereof, and the Company shall not, after the date of this Agreement, enter into any agreement with respect to any of its securities that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.  The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company other issued and outstanding securities under any such agreements.  The Company will not enter into any agreement (other than the Registration Rights Agreement dated as of the date hereof in respect of the Notes) with respect to any of its securities which will grant to any Person piggy-back registration rights with respect to any Registration Statement.
 
(b)   Adjustments Affecting Registrable Securities .  The Company shall not, directly or indirectly, take any action with respect to the Registrable Securities as a class that would adversely affect the ability of the Holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement.
 
(c)   Amendments and Waivers .  The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, otherwise than with the prior written consent of (I) the Company, and (II) (A) the Holders of not less than a majority in aggregate principal amount  of the then outstanding Registrable Securities and (B) in circumstances that would adversely affect the Participating Broker-Dealers, the Participating Broker-Dealers holding not less than a majority in aggregate principal amount  of the Exchange Notes held by all Participating Broker-Dealers; provided , however , that Section 7 and this Section 10(c) may not be amended, modified or supplemented without the prior written consent of each Holder and each Participating Broker-Dealer (including any person who was a Holder or Participating Broker-Dealer of Registrable Securities or Exchange Securities, as the case may be, disposed of pursuant to any Registration Statement) affected by any such amendment, modification or supplement.  Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the
 

 
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rights of other Holders of Registrable Securities may be given by Holders of at least a majority in aggregate principal amount of the Registrable Securities being sold pursuant to such Registration Statement.
 
(d)    Notices .  All notices and other communications (including, without limitation, any notices or other communications to the Trustee) provided for or permitted hereunder shall be made in writing by hand delivery, registered first-class mail, next-day air courier or facsimile:
 
(i)    if to a Holder of the Registrable Securities, or any Participating Broker-Dealer, at the most current address of such Holder, or Participating Broker-Dealer, as the case may be, set forth on the records of the registrar under the Indenture, with a copy in like manner to the Initial Purchasers as follows:
 
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York  10005
Facsimile No.:  (646) 324-7554
Attention:  Corporate Finance Department
 
with a copy to:

Cahill Gordon & Reindel llp
80 Pine Street
New York, New York  10005
Facsimile No.:  (212) 269-5420
Attention:  John A. Tripodoro, Esq.
 Stuart Downing, Esq.
 
           (ii)       if to the Initial Purchasers, at the address specified in Section 10(d)(i);
 
           (iii)    if to the Company, at the address as follows:
 
Tutor Perini Corporation
15901 Olden Street
Sylmar, CA  91342
Facsimile No.:  818 367 9574
 
Attention:  Chief Financial Officer
 
 
with a copy to:
 
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY  10022
Facsimile No.: 212 446 4900
Attention:  Christian O. Nagler
 

 
-24-
 
 
 
All such notices and communications shall be deemed to have been duly given:  when delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; one Business Day after being timely delivered to a next-day air courier; and upon written confirmation, if sent by facsimile.
 
Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address and in the manner specified in such Indenture.
 
(e)   Successors and Assigns .  This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto, the Holders and the Participating Broker-Dealers; provided , however , that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture.
 
(f)   Counterparts .  This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
 
(g)   Headings .  The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
 
(h)   Governing Law .  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.  EACH OF THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
 
(i)   Severability .  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
 
(j)   Notes Held by the Company or its Affiliates .  Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
 
 
-25-
 
(k)   Third-Party Beneficiaries .  Holders of Registrable Securities and Participating Broker-Dealers are intended third-party beneficiaries of this Agreement, and this Agreement may be enforced by such Persons.
 
(l)   Entire Agreement .  This Agreement, together with the Purchase Agreement and the Indenture, is intended by the parties as a final and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein and any and all prior oral or written agreements, representations, or warranties, contracts, understandings, correspondence, conversations and memoranda between the Holders on the one hand and the Company on the other, or between or among any agents, representatives, parents, subsidiaries, affiliates, predecessors in interest or successors in interest with respect to the subject matter hereof and thereof are merged herein and replaced hereby.
 

[Signatures on following page]

 
-26-
 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
 
 
TUTOR PERINI CORPORATION
 
 
By:  /s/William B. Sparks
 
 
Name:  William B. Sparks
 
 
Title:    Executive Vice President and Treasurer
 
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 
Signature Page to Registration Rights Agreement
 
 
The Guarantors
 
PERINI BUILDING COMPANY, INC.
 

 
By:     /s/Robert Band      
 
 
Name:           Robert Band
 
 
Title:           Executive Vice President
 
 
PERINI ENVIRONMENTAL SERVICES, INC.
 
 
INTERNATIONAL CONSTRUCTION MANAGEMENT SERVICES, INC.
 
 
PERINI MANAGEMENT SERVICES, INC.
 
 
BOW EQUIPMENT LEASING COMPANY, INC.
 
 
R.E. DAILEY & CO.
 
 
PERINI LAND AND DEVELOPMENT COMPANY, INC.
 
 
PARAMOUNT DEVELOPMENT ASSOCIATES, INC.
 
 
PERCON CONSTRUCTORS, INC.
 
 
PERLAND CONSTRUCTION, INC.
 
 
 
 
By:     /s/Robert Band      
 
 
Name:           Robert Band
 
 
Title:           President
 

 
Signature Page to Registration Rights Agreement
 


 
TUTOR-SALIBA LLC
 
TUTOR-SALIBA CORPORATION
 

 
By:       /s/John D. Barrett    
 
 
Name:           John D. Barrett
 
 
Title:           Senior Vice President
 
 

 
 
POWERCO ELECTRIC CORP.
 
TUTOR HOLDINGS, LLC
 
TUTOR PACIFIC CONSTRUCTION, LLC
 
TUTOR MICRONESIA CONSTRUCTION, LLC
 
G.W. MURPHY CONSTRUCTION COMPANY, INC.
 
E.E. BLACK, LIMITED
 
BLACK CONSTRUCTION INVESTMENTS, INC.
 

 
By:    /s/John D. Barrett       
 
 
Name:           John D. Barrett
 
 
Title:           Vice President
 

 
  Signature Page to Registration Rights Agreement
 


 
JAMES A. CUMMINGS, INC.
 

 
By:        /s/William Derrer   
 
 
Name:           William Derrer
 
 
Title:           President and Chief Executive Officer
 

 
Signature Page to Registration Rights Agreement
 


 
CHERRY HILL CONSTRUCTION, INC.
 

 
By:      /s/James Laing     
 
 
Name:           James Laing
 
 
Title:           President
 

 
Signature Page to Registration Rights Agreement
 


 
RUDOLPH AND SLETTEN, INC.
 

 
By:     /s/Martin B. Sisemore      
 
 
Name:           Martin B. Sisemore
 
 
Title:           President and Chief Executive Officer
 

 
Signature Page to Registration Rights Agreement
 


 
DESERT PLUMBING & HEATING CO., INC.
 

 
By:         /s/Derrick I. Hodson  
 
 
Name:           Derrick I. Hodson
 
 
Title:           President
 

 
Signature Page to Registration Rights Agreement
 


 
TPC AGGREGATES, LLC
 

 
By:      /s/James A. Frost     
 
 
Name:           James A. Frost
 
 
Title:           Executive Vice President
 

 
Signature Page to Registration Rights Agreement
 


 
DANIEL J. KEATING CONSTRUCTION COMPANY, LLC
 

 
By:           /s/Daniel J. Keating, III
 
 
Name:           Daniel J. Keating, III
 
 
Title:           Chief Executive Officer
 
 



 
Signature Page to Registration Rights Agreement
 

The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
 
DEUTSCHE BANK SECURITIES INC.
 
BMO CAPITAL MARKETS CORP.
COMERICA SECURITIES, INC.
SANTANDER INVESTMENT SECURITES INC.
MITSUBISHI UFJ SECURITIES (USA), INC.
U.S. BANCORP INVESTMENTS, INC.
 

 
By:  Deutsche Bank Securities Inc.
 
By:          
 
Name:
 
Title:
 
By:          
 
Name:
 
Title:
 
For itself and the other
 
several Initial Purchasers.


 
Signature Page to Registration Rights Agreement
 


 
 
EXHIBIT 10.1
 
 
EXECUTION VERSION

 
TUTOR PERINI CORPORATION
 

 
 
$300,000,000
 

 
 
7⅝% SENIOR NOTES DUE 2018
 

 
 
PURCHASE AGREEMENT
 
October 15, 2010
 
DEUTSCHE BANK SECURITIES INC.
 
as Representative of the several
 
Initial Purchasers named in Schedule 1 hereto.
 
c/o Deutsche Bank Securities Inc.
 
60 Wall Street
 
New York, New York  10005
 
 
Ladies and Gentlemen:
 
Tutor Perini Corporation, a Massachusetts corporation (the “ Company ”), and the Company’s subsidiaries listed on Schedule 2 hereto (the “ Guarantors ”), hereby confirm their agreement with the several initial purchasers named in Schedule 1 hereto (the “ Initial Purchasers ”) for whom you are acting as representative (the “ Representative ”), as set forth below.
 
Section 1.   The Securities .  Subject to the terms and conditions herein contained, the Company proposes to issue and sell to the Initial Purchasers $300,000,000 aggregate principal amount of its 7⅝% Senior Notes due 2018 (the “ Notes ”).  The Notes are to be issued under an indenture (the “ Indenture ”) to be dated as of October 15, 2010 by and among the Company, the Guarantors and Wilmington Trust FSB, as Trustee (the “ Trustee ”).
 
The payment of principal, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed (the “ Guarantees ” and, together with the Notes, the “ Securities ”) on a senior unsecured basis, jointly and severally, by the Guarantors.
 
The Securities will be offered and sold to the Initial Purchasers without being registered under the Securities Act of 1933, as amended (the “ Act ”), in reliance on exemptions therefrom.
 
In connection with the sale of the Securities, the Company and the Guarantors have prepared a preliminary offering memorandum dated October 6, 2010 (the “ Preliminary Memorandum ”) setting forth or including a description of the terms of the securities and the terms of the offering of the Securities.  As used herein, “ Pricing Disclosure Package ” shall mean the Preliminary Memorandum, as supplemented or amended by the written communications listed on Annex A hereto in the most recent form that has been prepared and delivered by the Company and the Guarantors to the Initial Purchasers in connection with their solicita-
 
 
1
 
                                                                                                                                tion of offers to purchase Securities at or prior to the time when sales of the Securities were first made (the “ Time of Execution ”).   Promptly after the Time of Execution and in any event no later than the second Business Day following the Time of Execution, the Company and the Guarantors will prepare and deliver to each Initial Purchaser a final offering memorandum dated the date hereof (the “ Final Memorandum ”), which will consist of the Preliminary Memorandum with such changes therein as are required to reflect the information contained in the amendments or supplements listed on Annex A hereto.  The Company and the Guarantors hereby confirm that they have authorized the use of the Pricing Disclosure Package, the Final Memorandum and the Recorded Road Show (defined below) in connection with the offer and sale of the Securities by the Initial Purchasers.
 
The Initial Purchasers and their direct and indirect transferees of the Securities will be entitled to the benefits of the Registration Rights Agreement, substantially in the form attached hereto as Exhibit A (the “ Registration Rights Agreement ”), pursuant to which the Company and the Guarantors have agreed, among other things, to file a registration statement (the “ Registration Statement ”) with the Securities and Exchange Commission (the “ Commission ”) registering the Securities or the Exchange Securities (as defined in the Registration Rights Agreement) under the Act.
 
On or prior to the Closing Date, the Company will enter into an amendment (the “ Amendment ”) to amend the Company’s existing senior secured revolving credit facility with Bank of America, N.A., as Administrative Agent, and the lenders party thereto, as described in the Pricing Disclosure Package.
 
Section 2.   Representations and Warranties .  As of the Time of Execution and at the Closing Date, the Company and the Guarantors jointly and severally represent and warrant to and agree with each of the Initial Purchasers as follows (references in this Section 2 to the “ Offering Memorandum ” are to (i) the Pricing Disclosure Package in the case of representations and warranties made as of the Time of Execution and (ii) both the Pricing Disclosure Package and the Final Memorandum in the case of representations and warranties made at the Closing Date):
 
(a)   The Preliminary Memorandum, on the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.  At the Time of Execution, the Pricing Disclosure Package does not, and on the Closing Date (as defined in Section 3 below), will not, and the Final Memorandum as of its date and on the Closing Date will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that none of the Company or the Guarantors makes any representation or warranty as to the information contained in or omitted from the Pricing Disclosure Package and Final Memorandum, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through Deutsche Bank Securities Inc. specifically for inclusion
 
 
2
 
                                                                                                                          therein.  Neither the Company nor any of the Guarantors has distributed or referred to and will not distribute or refer to any “written communications” (as defined in Rule 405 of the Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company, the Guarantors, or their agents and representatives (other than a communication referred to in clauses (i), (ii), (iii) and (iv) below) an “ Issuer Written Communication ”) other than the (i) Pricing Disclosure Package, (ii) the Final Memorandum (iii) the recorded electronic road show made available to investors (the “ Recorded Road Show ”) and (iv) any other written communication approved in writing in advance by the Representative; provided , however , that none of the Company or the Guarantors makes any representation or warranty as to the information contained in or omitted from the Pricing Disclosure Package and Final Memorandum, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through Deutsche Bank Securities Inc. specifically for inclusion therein.  Any information in an Issuer Written Communication that is not otherwise included in the Pricing Disclosure Package and the Final Memorandum does not conflict with the Pricing Disclosure Package or the Final Memorandum and, each Issuer Written Communication, when taken together with the Pricing Disclosure Package does not at the Time of Execution and when taken together with the Final Memorandum at the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 
(b)   The Company has the authorized, issued and outstanding capitalization as set forth in the Offering Memorandum under the heading “Capitalization” in the “Actual” column; all of the subsidiaries of the Company are listed in Schedule 2 attached hereto (each, a “ Subsidiary ” and collectively, the “ Subsidiaries ”); all of the outstanding shares of capital stock of the Company and the Subsidiaries have been and as of the Closing Date will be, duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of the Company and of each of the Subsidiaries will be free and clear of all liens, encumbrances, equities and claims (except for such liens, encumbrances, equities and claims as set forth in the Offering Memorandum) or restrictions on transferability (other than those imposed by the Act and the securities or “Blue Sky” laws of certain jurisdictions) or voting.  Except as set forth in the Offering Memorandum, there are no (i) options, warrants or other rights to purchase, (ii) agreements or other obligations to issue or (iii) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any of the Subsidiaries outstanding.  Except for the Subsidiaries or as disclosed in the Offering Memorandum, the Company does not own, directly or indirectly, any shares of capital stock or any other equity or long-term debt securities or have any equity interest in any firm, partnership, joint venture or other entity.
 
 
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(c)   Each of the Company and the Subsidiaries is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own its properties and conduct its business as now conducted and as described in the Offering Memorandum; each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or be in good standing would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the management, business, condition (financial or otherwise), business prospects or results of operations of the Company and the Subsidiaries, taken as a whole, or on the performance by the Company and the Guarantors of their obligations under the Securities and the  Guarantees (any such event, a “ Material Adverse Effect ”).
 
(d)   The Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Notes and the Exchange Notes.  The Notes, when issued, will be in the form contemplated by the Indenture.  The Notes and the Exchange Notes have each been duly and validly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and, in the case of the Notes, when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in  accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (collectively, the “ Enforceability Exceptions ”).
 
(e)   Each Guarantor has all requisite power and authority to execute, deliver and perform each of its obligations under the Guarantees.  The Guarantees will be in the form contemplated by the Indenture.  The Guarantees have been duly and validly authorized by each Guarantor and, when the Guarantees are executed by each Guarantor and the Notes are duly executed and authenticated by the Trustee, issued and delivered in accordance with the provisions of the Indenture and paid for as provided herein and when the Indenture has been duly executed and delivered, will constitute valid and legally binding obligations of each Guarantor, entitled to the benefits of the Indenture and enforceable against each Guarantor in accordance with their terms, subject to the Enforceability Exceptions.
 
(f)   The Company and each Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture.  As of the Closing Date, the Indenture meets the requirements for qualification under the Trust 
 
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                                                                                                                                                                                                                                                                                                                                                            Indenture Act of 1939, as amended (the “ TIA ”).  The Indenture has been duly and validly authorized by the Company and each Guarantor and, when executed and delivered by the Company and each Guarantor (assuming the due authorization, execution and delivery by the Trustee), will constitute a valid and legally binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except that the enforcement thereof may be subject to the Enforceability Exceptions.
 
(g)   The Company and each Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement.  The Registration Rights Agreement has been duly and validly authorized by the Company and each Guarantor and, when executed and delivered by the Company and each Guarantor (assuming the due authorization, execution and delivery by the Initial Purchasers), will constitute a valid and legally binding agreement of the Company and each Guarantor enforceable against the Company and each Guarantor in accordance with its terms, subject to the Enforceability Exceptions.
 
(h)   The Company and each Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.  This Agreement and the consummation by the Company and the Guarantors of the transactions contemplated hereby have been duly and validly authorized by the Company and each Guarantor.  This Agreement has been duly and validly executed and delivered by the Company and each Guarantor.
 
(i)   No consent, approval, authorization or order of any court or governmental agency or body, or third party is required for the issuance and sale by the Company and the Guarantors of the Securities to the Initial Purchasers or the consummation by the Company and the Guarantors of the other transactions contemplated hereby, except such as have been obtained and such as may be required under state securities or “Blue Sky” laws in connection with the purchase and resale of the Securities by the Initial Purchasers.  None of the Company or the Subsidiaries is (i) in violation of its certificate of incorporation or bylaws (or similar organizational document), (ii) in violation of any statute, judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) in default under (nor has any event occurred that, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, contract or other agreement or instrument to which any of them is a party or to which any of them or their respective properties or assets is subject (collectively, “ Contracts ”), except for any such breach, default, violation or event that would not, individually or in the aggregate, have a Material Adverse Effect.
 
 
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(j)   The execution, delivery and performance by the Company and each Guarantor of this Agreement, the Indenture and the Registration Rights Agreement and the consummation by the Company and the Guarantors of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) will not conflict with or constitute or result in a breach of or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract, except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws (or similar organizational document) of the Company or any of the Subsidiaries or (iii) (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or regulation applicable to the Company or any of the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
 
(k)   The audited consolidated financial statements and the related notes thereto of the Company and the Subsidiaries included in the Offering Memorandum present fairly in all material respects the financial position, results of operations and cash flows of the Company and the Subsidiaries at the dates and for the periods to which they relate and have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis, except as otherwise stated therein.  The summary and selected financial and statistical data in the Offering Memorandum present fairly in all material respects the information shown therein and have been prepared, derived and compiled on a basis consistent with the audited consolidated financial statements included therein, except as otherwise stated therein.  Deloitte & Touche, LLP (the “ Independent Accountants ”) is an independent registered public accounting firm within the meaning of the Act and the rules and regulations promulgated thereunder.
 
(l)   There is not pending or, to the knowledge of the Company or any Guarantor, threatened any action, suit, proceeding, inquiry or investigation to which the Company or any of the Subsidiaries is a party, or to which the property or assets of the Company or any of the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body that, if determined adversely to the Company or any of the Subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect or that seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Offering Memorandum.
 
(m)   Each of the Company and the Subsidiaries possesses all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all of the appropriate federal, state, local               
  
 
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                                                                                                                                                                                                                                                                                                                                                                       and other governmental authorities, all of the appropriate self-regulatory organizations and all courts and other tribunals, presently required or necessary to own or lease, as the case may be, and to operate its respective properties and to carry on its respective businesses as set forth in the Offering Memorandum (“ Permits ”), except where the failure to possess or obtain such Permits would not, individually or in the aggregate, have a Material Adverse Effect; each of the Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit; and none of the Company or the Subsidiaries has received any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Offering Memorandum and except where such revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect.
 
(n)   Since the date of the most recent financial statements appearing in the Offering Memorandum, except as described therein, (i) none of the Company or the Subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into or agreed to enter into any transactions or contracts (written or oral) not in the ordinary course of business, which liabilities, obligations, transactions or contracts would, individually or in the aggregate, be material to the management, business, condition (financial or otherwise), business prospects or results of operations of the Company and its Subsidiaries, taken as a whole, (ii) none of the Company or the Subsidiaries has purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock (other than with respect to any of such Subsidiaries, the purchase of, or dividend or distribution on, capital stock owned by the Company) and (iii) there shall not have been any material change in the capital stock or long-term indebtedness of the Company or the Subsidiaries.
 
(o)   Each of the Company and the Subsidiaries has filed all necessary federal, state and foreign tax returns or has requested and have received extensions thereof, except where the failure to so file such returns would not, individually or in the aggregate, have a Material Adverse Effect, and has paid all taxes shown as due thereon; and other than tax deficiencies that the Company or any Subsidiary is contesting in good faith and for which the Company or such Subsidiary has provided adequate reserves, there is no tax deficiency that has been asserted against the Company or any of the Subsidiaries that would have, individually or in the aggregate, a Material Adverse Effect.
 
(p)   The statistical and market-related data included in the Offering Memorandum are based on or derived from sources that the Company and the Subsidiaries believe to be reliable and accurate.
 
 
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(q)   None of the Company, the Subsidiaries or any agent acting on their behalf has taken or will take any action that might cause this Agreement or the sale of the Securities to violate Regulation T, U or X of the Board of Governors of the Federal Reserve System, in each case as in effect, or as the same may hereafter be in effect, on the Closing Date.
 
(r)   Each of the Company and the Subsidiaries has good and marketable title to all real property and good title to all personal property described in the Offering Memorandum as being owned by it and good and marketable title to a leasehold estate in the real and personal property described in the Offering Memorandum as being leased by it free and clear of all liens, charges, encumbrances or restrictions, except as described in the Offering Memorandum or to the extent the failure to have such title or the existence of such liens, charges, encumbrances or restrictions would not, individually or in the aggregate, have a Material Adverse Effect.  All leases, contracts and agreements to which the Company or any of the Subsidiaries is a party or by which any of them is bound are valid and enforceable against the Company or such Subsidiary, and are valid and enforceable against the other party or parties thereto and are in full force and effect with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.  The Company and the Subsidiaries own or possess adequate licenses or other rights to use all material patents, trademarks, service marks, trade names, copyrights and know-how necessary to conduct the businesses operated by them as described in the Offering Memorandum, and none of the Company or the Subsidiaries has received any notice of infringement of or conflict with (or knows of any such infringement of or conflict with) asserted rights of others with respect to any material patents, trademarks, service marks, trade names, copyrights or know-how that, if such assertion of infringement or conflict were sustained, would have a Material Adverse Effect.
 
(s)   There are no legal or governmental proceedings involving or affecting the Company or any Subsidiary or any of their respective properties or assets that would be required to be described in a prospectus pursuant to the Act that are not described in the Offering Memorandum, nor are there any material contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described in the Offering Memorandum.
 
(t)   Except as would not, individually or in the aggregate, have a Material Adverse Effect (A) each of the Company and the Subsidiaries is in compliance with, and has not received any notice of any liability under, applicable Environmental Laws (as defined below), (B) each of the Company and the Subsidiaries has made all filings and provided all notices required under any applicable Environmental Law, and has and is in compliance with all Permits required under any applicable Environmental Laws and each of them is in full force and effect, (C) there is no civil, criminal or administrative action, suit, demand, claim, hearing, notice of violation, investigation, proceeding, notice or demand letter or request for information pending or, to the knowledge of the Company or any of the Subsidiaries, threatened against the      
                                                          
 
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                                                                                                                                                                                         Company or any of the Subsidiaries under any Environmental Law, (D) no lien, charge, encumbrance or restriction has been recorded under any Environmental Law with respect to any assets, facility or property owned, operated, leased or controlled by the Company or any of the Subsidiaries, (E) none of the Company or the Subsidiaries has received notice that it has been identified as a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“ CERCLA ”), or any comparable state law and (F) no property or facility of the Company or any of the Subsidiaries is (i) listed or, to the knowledge of the Company or any of its Subsidiaries, proposed for listing on the National Priorities List under CERCLA or is (ii) listed in the Comprehensive Environmental Response, Compensation, Liability Information System List promulgated pursuant to CERCLA, or on any comparable list maintained by any state or local governmental authority.
 
For purposes of this Agreement, “ Environmental Laws ” means the common law and all applicable federal, state and local laws or regulations, codes, orders, decrees, judgments or injunctions issued, promulgated, approved or entered thereunder, in each case relating to pollution or protection of public or employee health and safety or the environment, including, without limitation, those laws relating to (i) emissions, discharges, releases or threatened releases of hazardous materials into the environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), (ii) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of hazardous materials, and (iii) underground and above ground storage tanks and related piping, and emissions, discharges, releases or threatened releases therefrom.
 
(u)   There is no strike, labor dispute or work stoppage with the employees of the Company or any of the Subsidiaries that is pending or, to the knowledge of the Company or any of the Subsidiaries, threatened.
 
(v)   Each of the Company and the Subsidiaries carries insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties.
 
(w)   None of the Company or the Subsidiaries has any material liability for any prohibited transaction or funding deficiency or any complete or partial withdrawal liability with respect to any pension, profit sharing or other plan that is subject to the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), to which the Company or any of the Subsidiaries makes or ever has made a contribution and in which any employee of the Company or of any Subsidiary is or has ever been a participant.  With respect to such plans, the Company and each Subsidiary is in compliance in all material respects with all applicable provisions of ERISA.
 
(x)   Each of the Company and the Subsidiaries (i) makes and keeps accurate books and records and (ii) maintains internal accounting controls that provide reasonable assurance that (A) transactions are executed in accordance with  
 
 
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                                                                                                                                            management’s authorization, (B) transactions are recorded as necessary to permit preparation of its financial statements and to maintain accountability for its assets, (C) access to its assets is permitted only in accordance with management’s authorization and (D) the reported accountability for its assets is compared with existing assets at reasonable intervals.
 
(y)   None of the Company or the Subsidiaries will be, after giving effect to the offer and sale of the Securities and the application of the proceeds thereof as described in the Offering Memorandum, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
 
(z)   The Securities, the Indenture and the Registration Rights Agreement will conform in all material respects to the descriptions thereof in the Offering Memorandum.
 
(aa)   No holder of securities of the Company or any Subsidiary will be entitled to have such securities registered under the registration statements required to be filed by the Company pursuant to the Registration Rights Agreement other than as expressly permitted thereby.
 
(bb)   Immediately after the consummation of the transactions contemplated by this Agreement, the fair value and present fair saleable value of the assets of each of the Company and the Subsidiaries (each on a consolidated basis) will exceed the sum of its stated liabilities and identified contingent liabilities; none of the Company or the Subsidiaries (each on a consolidated basis) is, nor will any of the Company or the Subsidiaries (each on a consolidated basis) be, after giving effect to the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, (a) left with unreasonably small capital with which to carry on its business as it is proposed to be conducted, (b) unable to pay its debts (contingent or otherwise) as they mature or (c) otherwise insolvent.
 
(cc)   None of the Company, the Subsidiaries or any of their respective Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Act) that is or could be integrated with the sale of the Securities in a manner that would require the registration under the Act of the Securities or (ii) engaged in any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a “public offering” within the meaning of Section 4(2) of the Act.  Assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers in the manner contemplated by this Agreement to   
 
 
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                                                                                                                                                register any of the Securities under the Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended.
 
(dd)   No securities of the Company or any Subsidiary are of the same class (within the meaning of Rule 144A under the Act) as the Securities and listed on a national securities exchange registered under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
 
(ee)   None of the Company or the Subsidiaries has taken, nor will any of them take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Notes.
 
(ff)   None of the Company, the Subsidiaries, any of their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) has engaged in any “directed selling efforts” (as that term is defined in Regulation S under the Act (“ Regulation S ”)) with respect to the Securities; the Company, the Subsidiaries and their respective Affiliates and any person acting on its or their behalf (other than the Initial Purchasers) have complied with the offering restrictions requirement of Regulation S.
 
(gg)   Neither the Company nor any of its Subsidiaries nor, to the best knowledge of the Company and each of the Guarantors, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
 
(hh)   The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
 
(ii)   None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”); and the 
  
 
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                                                                                                                                                      Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
 
Section 3.   Purchase, Sale and Delivery of the Notes .  On the basis of the representations, warranties, agreements and covenants herein contained and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers, acting severally and not jointly, agree to purchase the Securities in the respective amounts set forth on Schedule 1 hereto from the Company at 98.25% of their principal amount plus accrued interest, if any, from October 20, 2010 to the Closing Date.  One or more certificates in definitive form or global form for the Securities that the Initial Purchasers have agreed to purchase hereunder, and in such denomination or denominations and registered in such name or names as the Representative requests upon notice to the Company at least 36 hours prior to the Closing Date, shall be delivered by or on behalf of the Company and the Guarantors to the Representative, against payment by or on behalf of the Initial Purchasers of the purchase price therefor by wire transfer (same day funds), to such account or accounts as the Company shall specify prior to the Closing Date, or by such means as the parties hereto shall agree prior to the Closing Date.  Such delivery of and payment for the Securities shall be made at the offices of Cahill Gordon & Reindel LLP , 80 Pine Street, New York, New York at 10:00 A.M., New York time, on October 20, 2010, or at such other place, time or date as the Representative, on the one hand, and the Company, on the other hand, may agree upon, such time and date of delivery against payment being herein referred to as the “ Closing Date .”  The Company and the Guarantors will make such certificate or certificates for the Securities available for checking and packaging by the Representative at the offices of Deutsche Bank Securities Inc. in New York, New York, or at such other place as Deutsche Bank Securities Inc. may designate, at least 24 hours prior to the Closing Date.
 
Section 4.   Offering by the Initial Purchasers .
 
(a)           The Initial Purchasers propose to make an offering of the Securities at the price and upon the terms set forth in the Pricing Disclosure Package and the Final Memorandum as soon as practicable after this Agreement is entered into and as in the judgment of the Initial Purchasers is advisable.
 
(b)           Each Initial Purchaser hereby represents and agrees that it has not used and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the solicitation of an offer to buy the Securities other than (i) the Pricing Disclosure Package and the Offering Memorandum; (ii) a written communication that contains no “issuer information” (as defined in Rule 433(h)(2) under the Act) that was not included in the Pricing Disclosure Package or the Offering Memorandum; (iii) any written communication listed on Annex A or prepared pursuant to Section 5(c) below (including any electronic road show); (iv) any written communication prepared by
 
 
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                                                                                                                                 such Initial Purchaser and approved by the Company in advance in writing; or (iv) any written communication relating to or that contains the terms of the Securities and/or other information that was included in the Pricing Disclosure Package or the Offering Memorandum.
 
Section 5.   Covenants of the Company and the Guarantors .  The Company and the Guarantors jointly and severally covenant and agree with each of the Initial Purchasers as follows:
 
(a)   Until the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, the Company will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement and as to which the Initial Purchasers shall have given their consent.  The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
 
(b)   The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities and the Guarantees; provided , however , that in connection therewith, none of the Company and the Guarantors shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
 
(c)   (1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then  amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then  
 
 
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                                                                                                                               amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (a) above, furnish to the Initial Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum) as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented will comply with law.
 
(d)   The Company will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and the Final Memorandum or any amendment or supplement thereto as the Representative may reasonably request.
 
(e)   The Company will apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
 
(f)   For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
 
(g)   Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered  by the most recent financial statements appearing in the Pricing Disclosure Package and the Final Memorandum, if any.
 
(h)   None of the Company and the Guarantors or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Act) that could be integrated with the sale of the Securities in a manner which would require the registration under the Act of the Securities.
 
 
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(i)   The Company and the Guarantors will not, and will not permit any of the Subsidiaries or their respective Affiliates or persons acting on their behalf to, engage in any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D under the Act) in connection with the offering of the Securities or in any manner involving a “public offering” within the meaning of Section 4(2) of the Act.
 
(j)   For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act.
 
(k)   The Company will use commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
 
(l)   During the period beginning on the date hereof and continuing to the date that is 30 days after the Closing Date, without the prior written consent of the Representative, the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of any of the Company and the Guarantors (or guaranteed by any of the Company and the Guarantors) that are substantially similar to the Securities.
 
(m)   In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S) the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities (including any related Guarantees) in the form of definitive securities.
 
(n)   None of the Company and the Guarantors or any of their Affiliates will engage in any “directed selling efforts” (as that term is defined in Regulation S) with respect to the Securities.
 
(o)   For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the date any Securities are acquired by the Company and the Guarantors or any of their Affiliates, none of the Company and the Guarantors or any of their Affiliates will sell any such Securities.
 
Section 6.   Expenses .  The Company and the Guarantors jointly and severally agree to pay all costs and expenses incident to the performance of its obligations under this Agreement, whether or not the transactions contemplated herein are consummated or this Agreement is terminated pursuant to Section 11 hereof, including all costs and expenses incident to (i) the printing, word processing or other production of documents with   
 
 
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                                                                                                                                          respect to the transactions contemplated hereby, including any costs of printing the Pricing Disclosure Package and the Final Memorandum and any amendment or supplement thereto, and any “Blue Sky” memoranda, (ii) all reasonable arrangements relating to the delivery to the Initial Purchasers of copies of the foregoing documents, (iii) the fees and disbursements of the counsel, the accountants and any other experts or advisors retained by the Company and the Guarantors, (iv) the qualification of the Securities under state securities and “Blue Sky” laws, including filing fees and reasonable fees and disbursements of counsel for the Initial Purchasers relating thereto, (v) expenses incurred by the Company and the Guarantors in connection with the “roadshow” (including 50% of the cost of any chartered airplane) and any other meetings with prospective investors in the Securities, (vi) fees and expenses of the Trustee, including reasonable fees and expenses of counsel, and (vii) any fees charged by investment rating agencies for the rating of the Securities.  If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 7 hereof is not satisfied, because this Agreement is terminated or because of any failure, refusal or inability on the part of the Company or the Guarantors to perform all obligations and satisfy all conditions on their part to be performed or satisfied hereunder (other than solely by reason of a default by the Initial Purchasers of their obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company and the Guarantors agree to promptly reimburse the Initial Purchasers upon demand for all out-of-pocket expenses (including fees, disbursements and charges of Cahill Gordon & Reindel LLP , counsel for the Initial Purchasers) that shall have been reasonably incurred by the Initial Purchasers in connection with the proposed purchase and sale of the Securities.
 
Section 7.   Conditions of the Initial Purchasers’ Obligations .  The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
 
(a)   On the Closing Date, the Initial Purchasers shall have received the opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of (i) Kirkland & Ellis LLP, counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers, a form of which is attached as Exhibit B and (ii) Wilmer Cutler Pickering Hale and Door LLP, counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers.
 
(b)   On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel LLP , counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require.  In rendering such opinion, Cahill Gordon & Reindel LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
 
 
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(c)   On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package.  On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
 
(d)   The representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company’s and the Guarantor’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
 
(e)   The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
 
(f)   Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
 
(g)   The Representative shall have received a certificate of the Company and each Guarantor, dated the Closing Date, signed on behalf of the Company or such Guarantor by its (i) Chairman of the Board, President or any Senior Vice President or executive officer performing similar functions with respect to such Guarantor and (ii) the Chief Financial Officer or executive officer performing similar functions with respect to such Guarantor, to the effect that:
 
 
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(i)   the representations and warranties of the Company or such Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company or such Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
 
(ii)   at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
 
(iii)   the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
 
(h)   On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and the Indenture executed by the Company, the Guarantors and the Trustee, and such agreement shall be in full force and effect.
 
(i)   On or before the Closing Date, the Company shall have entered into the Amendment.
 
(j)   On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company.
 
All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Representative and counsel for the Initial Purchasers.  The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request.
 
Section 8.   Offering of Notes; Restrictions on Transfer .
 
(a)           Each of the Initial Purchasers agrees with the Company and the Guarantors (as to itself only) that (i) it is a qualified institutional buyer within the meaning of Rule 144A under the Act (a “ QIB ”) and an accredited investor within the meaning of Rule 501(a) under the Act; (ii) it has not and will not solicit offers for, or offer or sell, the Securities by any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D under the Act) or in any manner involving a “public offering” within the meaning of
 
 
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                                                                                                                              Section 4(2) of the Act; and (ii) it has and will solicit offers for the Securities only from, and will offer the Securities only to (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons (“non-U.S. purchasers,” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for non-U.S. beneficial owners (other than an estate or trust)); provided , however , that, in the case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption “Transfer Restrictions” contained in the Pricing Disclosure Package and the Final Memorandum.
 
(b)           Each of the Initial Purchasers represents and warrants (as to itself only) with respect to offers and sales outside the United States that (i) it has and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes any Pricing Disclosure Package or Final Memorandum or any such other material, in all cases at its own expense; (ii) the Securities have not been and will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S under the Act or pursuant to an exemption from the registration requirements of the Act; and (iii) it has offered the Securities and will offer and sell the Securities (A) as part of its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on its behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such persons have complied and will comply with the offering restrictions requirement of Regulation S.
 
(c)           Each Initial Purchaser, severally and not jointly represents and warrants and agrees with the Company and the Guarantors that:
 
(i)   in relation to each Member State (each, a “ Relevant Member State ”) of the European Economic Area that has implemented Directive 2003/71/EC (including any relevant implementing measure in each Relevant Member State, the “ Prospectus Directive ”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “ Relevant Implementation Date ”), it has not made and will not make an offer of Securities to the public (as such expression is defined in Section 17) in that Relevant Member State prior to the publication of a prospectus in relation to the Securities that has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make
 
 
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                                                                                                                 an offer of Securities to the public in that Relevant Member State at any time: (A) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (B) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or (C) in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive;
 
(ii)   it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act of 2000 (the “ FSMA ”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company;
 
(iii)   it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and
 
(iv)   it has not, directly or indirectly, offered or sold and will not, directly or indirectly, offer or sell in the Netherlands any Securities with a denomination of less than €50,000 (or its other currency equivalent) other than to persons who trade or invest in securities in the conduct of a profession or business (which includes banks, stockbrokers, insurance companies, pension funds, other institutional investors and finance companies and treasury departments of large enterprises) unless one of the other exemptions from or exceptions to the prohibition contained in article 3 of the Dutch Securities Transactions Supervision Act 1995 ( Wet toezicht effectenverkeer 1995) is applicable and the conditions attached to such exemption or exception are complied with.
 
Terms used in this Section 8 and not defined in this Agreement have the meanings given to them in Regulation S.
 
Section 9.   Indemnification and Contribution .
 
(a)           The Company and the Guarantors jointly and severally agree to indemnify and hold harmless each Initial Purchaser, its affiliates, directors, officers and employees, and each person, if any, who controls any Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which any Initial Purchaser, affiliate, director, officer, employee or such controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the following:
 
 
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(i)   any untrue statement or alleged untrue statement of any material fact contained in the Pricing Disclosure Package, any Issuer Written Communication or Final Memorandum or any amendment or supplement thereto; or
 
(ii)   the omission or alleged omission to state, in the Pricing Disclosure Package, any Issuer Written Communication or the Final Memorandum or any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading;
 
and will reimburse, as incurred, the Initial Purchasers and each such affiliate, director, officer or employee and each such controlling person for any legal or other expenses reasonably incurred by the Initial Purchasers and each such affiliate, director, officer, or employee or such controlling person in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided , however , the Company and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Pricing Disclosure Package, any Issuer Written Communication or Final Memorandum or any amendment or supplement thereto in reliance upon and in conformity with written information concerning the Initial Purchasers furnished to the Company and the Guarantors by the Initial Purchasers through the Representative specifically for use therein.  The indemnity provided for in this Section 9 will be in addition to any liability that the Company and the Guarantors may otherwise have to the indemnified parties.  The Company shall not be liable under this Section 9 for any settlement of any claim or action effected without its prior written consent, which shall not be unreasonably withheld.
 
(b)           Each Initial Purchaser, severally and not jointly, agrees to indemnify and hold harmless the Company and the Guarantors, their respective directors, officers and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or any Guarantor or any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Pricing Disclosure Package, any Issuer Written Communication or Final Memorandum or any amendment or supplement thereto, or (ii) the omission or the alleged omission to state therein a material fact required to be stated in the Pricing Disclosure Package, any Issuer Written Communication or Final Memorandum or any amendment or supplement thereto, or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Initial Purchaser, furnished to the Company by the Initial Purchasers through the Representative specifically for use therein; and subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any legal or other expenses incurred by the Company or any Guarantor or any such director, officer or controlling person in connection with investi-  
 
 
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                                                                                                                                           gating or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action in respect thereof.  The indemnity provided for in this Section 9 will be in addition to any liability that the Initial Purchasers may otherwise have to the indemnified parties.  The Initial Purchasers shall not be liable under this Section 9 for any settlement of any claim or action effected without their consent, which shall not be unreasonably withheld.
 
(c)           Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 9, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above.  In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided , however , that if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, or (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties.  After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Initial Purchasers in the case of paragraph (a) of this Section 9 or the Company and the Guarantors in the case of paragraph (b) of this Section 9, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are par-
 
 
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                                                                                                                                                 ties to such action or actions) or (ii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party.  All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred.  After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Section 9, in which case the indemnified party may effect such a settlement without such consent.  No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party, or indemnity could have been sought hereunder by any indemnified party, unless such settlement (A) includes an unconditional written release of the indemnified party, in form and substance reasonably satisfactory to the indemnified party, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
 
(d)           In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 9 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the offering of the Securities or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof).  The relative benefits received by the Company and the Guarantors on the one hand and any Initial Purchaser on the other shall be deemed to be in the same proportion as the total proceeds from the offering (before deducting expenses) received by the Company and the Guarantors bear to the total discounts and commissions received by such Initial Purchaser.  The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by any of the Company and the Guarantors on the one hand, or such Initial Purchaser on the other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances.  The Company, the Guarantors and the Initial Purchasers agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the first sentence of this paragraph (d).  Notwithstanding any other provision of this paragraph (d), no Initial Purchaser shall be obligated to make contributions hereunder that in the aggregate exceed the total discounts, com-
 
 
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                                                                                                                                       missions and other compensation received by such Initial Purchaser under this Agreement, less the aggregate amount of any damages that such Initial Purchaser has otherwise been required to pay by reason of the untrue or alleged untrue statements or the omissions or alleged omissions to state a material fact, and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this paragraph (d), each person, if any, who controls an Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Initial Purchasers, and each director of the Company or any Guarantor, each officer of the Company or any Guarantor and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Company and the Guarantors.
 
Section 10.   Survival Clause .  The respective representations, warranties, agreements, covenants, indemnities and other statements of the Company and the Guarantors, their respective officers and the Initial Purchasers set forth in this Agreement or made by or on behalf of them pursuant to this Agreement shall remain in full force and effect, regardless of (i) any investigation made by or on behalf of the Company or any Guarantor, any of their respective officers or directors, the Initial Purchasers or any controlling person referred to in Section 9 hereof and (ii) delivery of and payment for the Securities.  The respective agreements, covenants, indemnities and other statements set forth in Sections 6, 9, 10, and 15 hereof shall remain in full force and effect, regardless of any termination or cancellation of this Agreement.
 
Section 11.   Termination .
 
(a)           This Agreement may be terminated in the sole discretion of the Initial Purchasers by notice to the Company given prior to the Closing Date in the event that the Company and the Guarantors shall have failed, refused or been unable to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder at or prior thereto or, if at or prior to the Closing Date,
 
(i)   trading in securities of the Company or in securities generally on the New York Stock Exchange or the NASDAQ National Market shall have been suspended or materially limited or minimum or maximum prices shall have been established on any such exchange or market;
 
(ii)   a banking moratorium shall have been declared by New York or United States authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States;
 
(iii)   there shall have been (A) an outbreak or escalation of hostilities between the United States and any foreign power, or (B) an outbreak or escalation of any other insurrection or armed conflict involving the United States or any other national or international calamity or emergency, or (C) any material
 
 
24
 
                                                                                                                  change in the financial markets of the United States which, in the case of (A), (B) or (C) above and in the sole judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Pricing Disclosure Package and the Final Memorandum; or
 
(iv)   any securities of the Company shall have been downgraded  by any nationally recognized statistical rating organization or any such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its ratings of any securities of the Company (other than an announcement with positive implications of a possible upgrading).
 
(b)           Termination of this Agreement pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Section 10 hereof.
 
Section 12.   Information Supplied by the Initial Purchasers .  The statements set forth in (i) the last paragraph on the front cover page (as such paragraph is supplemented by Annex A ) and (ii) the last two sentences of the third paragraph, the second sentence in the seventh paragraph and the eight paragraph under the heading “Private Placement” in the Preliminary Memorandum and the Final Memorandum (to the extent such statements relate to the Initial Purchasers) constitute the only information furnished by the Initial Purchasers to the Company and the Guarantors for the purposes of Sections 2(a) and 9 hereof.
 
Section 13.   Default by One or More of the Initial Purchasers .  If one or more of the Initial Purchasers shall fail on the Closing Date to purchase the Notes which it or they are obligated to purchase under this Agreement (the “ Defaulted Securities ”), the Representative shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Initial Purchasers, or any other Initial Purchasers, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representative shall not have completed such arrangements within such 24-hour period, then:
 
(a)   if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Notes to be purchased hereunder, each of the non-defaulting Initial Purchasers shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Initial Purchasers, or
 
(b)   if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Notes to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Initial Purchaser or the Company, except as provided in Section 10 hereof.
 
 
25
 
No action taken pursuant to this Section shall relieve any defaulting Initial Purchaser from liability in respect of its default.
 
In the event of any such default which does not result in a termination of this Agreement, either the Representative or the Company shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Pricing Disclosure Package and the Final Memorandum or in any other documents or arrangements.  As used herein, the term “Initial Purchaser” includes any person substituted for an Initial Purchaser under this Section.
 
Section 14.   Notices .  All communications hereunder shall be in writing and, if sent to the Initial Purchasers, shall be mailed or delivered to (i) Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, Attention:  Corporate Finance Department; if sent to the Company, shall be mailed or delivered to the Company at Tutor Perini Corporation, 15901 Olden Street, Sylmar,  California 91342, Attention:  Chief Financial Officer; with a copy to Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attention:  Christian O. Nagler.
 
All such notices and communications shall be deemed to have been duly given:  when delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; and one business day after being timely delivered to a next-day air courier.
 
Section 15.   Successors .  This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Company, the Guarantors and their respective successors and legal representatives, and nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained; this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person except that (i) the indemnities of the Company and the Guarantors contained in Section 9 of this Agreement shall also be for the benefit of any person or persons who control the Initial Purchasers within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the Initial Purchasers contained in Section 9 of this Agreement shall also be for the benefit of the directors of the Company and the Guarantors, their respective officers and any person or persons who control the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.  No purchaser of Securities from the Initial Purchasers will be deemed a successor because of such purchase.
 
Section 16.   APPLICABLE LAW .  THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT
 
 
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                                                                                                                   GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
 
Section 17.   No Advisory or Fiduciary Responsibility .  The Company and the Guarantors acknowledge and agree that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other, (ii) in connection therewith and with the process leading to such transaction each Initial Purchaser is acting solely as a principal and not the agent or fiduciary of the Company or any Guarantor, (iii) no Initial Purchaser has assumed an advisory or fiduciary responsibility in favor of the Company or any Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Initial Purchaser has advised or is currently advising the Company or any Guarantor on other matters) or any other obligation to the Company or any Guarantor except the obligations expressly set forth in this Agreement and (iv) the Company and each Guarantor has consulted its own legal and financial advisors to the extent it deemed appropriate.  The Company and each Guarantor agrees that it will not claim that any Initial Purchaser has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or any Guarantor, in connection with such transaction or the process leading thereto.
 
Section 18.   Counterparts .  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
 
Section 19.   Miscellaneous .
 
(a)           This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
 
(b)           No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
 
(c)           The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
 
(d)           The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof.  If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
 
 
[Signatures on following page]

 
27
 

If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company, the Guarantors and the Initial Purchasers.
 
 
Very truly yours,
 
TUTOR PERINI CORPORATION
 
 
 
By:
  /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
President
 
 

 
PERINI BUILDING COMPANY, INC.
 

 
 
By:
  /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
Executive Vice President
 
 
PERINI ENVIRONMENTAL SERVICES, INC.
 
 
INTERNATIONAL CONSTRUCTION MANAGEMENT SERVICES, INC.
 
 
PERINI MANAGEMENT SERVICES, INC.
 
 
BOW EQUIPMENT LEASING COMPANY, INC.
 
 
R.E. DAILEY & CO.
 
 
PERINI LAND AND DEVELOPMENT COMPANY, INC.
 
 
PARAMOUNT DEVELOPMENT ASSOCIATES, INC.
 
 
PERCON CONSTRUCTORS, INC.
 
 
PERLAND CONSTRUCTION, INC.
 
 

 
 
 
By:
  /s/Robert Band  
 
 
 
Name:
Robert Band
 
 
 
Title:
President
 

 
Signature Page to Purchase Agreement
 
 
 


 
TUTOR-SALIBA LLC
 
TUTOR-SALIBA CORPORATION
 

 
 
By:
  /s/John D. Barrett  
 
 
 
Name:
John D. Barrett
 
 
 
Title:
Senior Vice President
 
 

 
 
POWERCO ELECTRIC CORP.
 
TUTOR HOLDINGS, LLC
 
TUTOR PACIFIC CONSTRUCTION, LLC
 
TUTOR MICRONESIA CONSTRUCTION, LLC
 
G.W. MURPHY CONSTRUCTION COMPANY, INC.
 
E.E. BLACK, LIMITED
 
BLACK CONSTRUCTION INVESTMENTS, INC.
 

 
 
By:
   /s/John D. Barrett  
 
 
 
Name:
John D. Barrett
 
 
 
Title:
Vice President
 

 
Signature Page to Purchase Agreement
 
 
 


 
JAMES A. CUMMINGS, INC.
 

 
 
By:
 /s/William Derrer  
 
 
 
Name:
William Derrer
 
 
 
Title:
President and Chief Executive Officer
 

 
Signature Page to Purchase Agreement
 
 
 


 
CHERRY HILL CONSTRUCTION, INC.
 

 
 
By:
 /s/James Laing  
 
 
 
Name:
James Laing
 
 
 
Title:
President
 

 
Signature Page to Purchase Agreement
 
 
 


 
RUDOLPH AND SLETTEN, INC.
 

 
 
By:
 /s/Martin B. Sisemore  
 
 
 
Name:
Martin B. Sisemore
 
 
 
Title:
President and Chief Executive Officer
 

 
Signature Page to Purchase Agreement
 
 
 


 
DESERT PLUMBING & HEATING CO., INC.
 

 
 
By:
 /s/Derrick I. Hodson  
 
 
 
Name:
Derrick I. Hodson
 
 
 
Title:
President
 

 
 
Signature Page to Purchase Agreement
 


 
TPC AGGREGATES, LLC
 

 
 
By:
 /s/James A. Frost  
 
 
 
Name:
James A. Frost
 
 
 
Title:
Executive Vice President
 

 
Signature Page to Purchase Agreement
 


 
DANIEL J. KEATING CONSTRUCTION COMPANY, LLC
 

 
 
By:
 /s/Daniel J. Keating, III  
 
 
 
Name:
Daniel J. Keating, III
 
 
 
Title:
Chief Executive Officer
 

 

 
1
 

 
The foregoing Agreement is hereby confirmed
 
 
and accepted as of the date first above written.
 
 
DEUTSCHE BANK SECURITIES INC.
 
By:
_____________________________
 
 
Name:
 
 
Title:
 
By:
_____________________________
 
 
Name:
 
 
Title:
 


 
S-2
 
 
SCHEDULE 2
 
 
Subsidiaries of the Company
 
Name
Jurisdiction of Incorporation
PERINI BUILDING COMPANY, INC.
Arizona
PERINI ENVIRONMENTAL SERVICES, INC.
Delaware
INTERNATIONAL CONSTRUCTION MANAGEMENT SERVICES, INC.
Delaware
PERINI MANAGEMENT SERVICES, INC.
Massachusetts
B OW EQUIPMENT LEASING COMPANY, INC.
New Hampshire
R.E. DAILEY & CO.
Michigan
PERINI LAND AND DEVELOPMENT COMPANY INC.
Massachusetts
PARAMOUNT DEVELOPMENT ASSOCIATES, INC.
Massachusetts
PERCON CONSTRUCTORS, INC.
Delaware
PERLAND CONSTRUCTION, INC.
West Virginia
JAMES A. CUMMINGS, INC.
Florida
CHERRY HILL CONSTRUCTION, INC.
Maryland
RUDOLPH AND SLETTEN, INC.
California
TUTOR-SALIBA LLC
California
TUTOR-SALIBA , f/k/a Tutor-Saliba Builders
California
POWERCO ELECTRIC CORP.
California
TUTOR HOLDINGS, LLC
Delaware
TUTOR PACIFIC CONSTRUCTION, LLC
Delaware
TUTOR MICRONESIA CONSTRUCTION, LLC
Delaware
G.W. MURPHY CONSTRUCTION COMPANY, INC.
Hawaii
E.E. BLACK, LIMITED
Hawaii
DESERT PLUMBING & HEATING CO., INC.
Nevada
BLACK CONSTRUCTION INVESTMENTS, INC.
Nevada
TPC AGGREGATES, LLC
Nevada
DANIEL J. KEATING CONSTRUCTION COMPANY, LLC
Delaware


 
 

ANNEX A
 
[See attached]
 

 
 

 
EXHIBIT A
Form of Registration Rights Agreement

[See attached]


 


 
                                                                                                        
 
Exhibit 10.2
 
Execution Version

TUTOR PERINI CORPORATION

THIRD AMENDMENT

THIS THIRD AMENDMENT (this “ Amendment ”) is entered into as of October 4, 2010 by and among TUTOR PERINI CORPORATION , a Massachusetts corporation f/k/a Perini Corporation (“ Borrower ”), with its chief executive office at 15901 Olden Street, Sylmar, California 91342, the Guarantors party hereto, BANK OF AMERICA, N.A. , as Administrative Agent (“ Agent ”), and the Lenders under the Credit Agreement, as defined below.  Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement, as defined below.

R E C I T A L S

WHEREAS, Borrower, Guarantors, Agent and the Lenders have previously entered into a Third Amended and Restated Credit Agreement dated as of September 8, 2008, as amended by a Joinder Agreement dated February 13, 2009 executed by Daniel J. Keating Construction Company, by a First Amendment dated as of February 23, 2009 and by a Second Amendment dated as of January 13, 2010 (as amended, the “ Credit Agreement ”) providing for $205,000,000 in Aggregate Revolving Commitments pursuant to Section 2.01.1(a) , subject to increase in an amount not to exceed $45,000,000 pursuant to Section 2.01.1(b) thereof;

WHEREAS, Borrower has requested that Borrower be permitted to incur additional senior unsecured indebtedness up to $300,000,000;

NOW THEREFORE, in consideration of the foregoing premises and the mutual benefits to be derived by Borrower, Guarantors, Agent and the Lenders from a continuing relationship under the Credit Agreement and for other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

A.   Amendments to Credit Agreement .  As of the Third Amendment Effective Date, the Credit Agreement is hereby amended as follows:
 
      1.   The following defined terms appearing in Section 1.01 of the Credit Agreement are hereby amended in their entirety to read as follows:

“ Aggregate Supplemental Revolver Commitments ” means the Supplemental Revolver Commitments of all the Supplemental Revolver Lenders.  The amount of the Aggregate Supplemental Revolver Commitments is Ninety-Nine Million Seven Hundred Seventy-Five Thousand Dollars ($99,775,000).

“ Change of Control ” means an event or series of events by which:
 
(a)   any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)  of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and any members of the Permitted Group shall be excluded when determining the members of such “group”) other than the Permitted Group becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage
 
 
1
 
   
         of time (such right, an “option right”)), directly or indirectly, of fifty percent (50%) of the Equity Interests of Borrower entitled to vote for members of the Board of Directors of Borrower on a fully diluted basis  
        (and taking   into account all such securities that such person or group has the right to acquire pursuant to any option right);

 
(b)   during any period of 24 consecutive months, a majority of the members of the Board of Directors of Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or (iii) whose election or nomination to that board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the Board of Directors of Borrower); or

(c)   (i) any Person other than the Permitted Group, or (ii) two or more Persons (neither of whom is in the Permitted Group) acting in concert, shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Borrower, or control over the Voting Interest of Borrower on a fully-diluted basis (and taking into account all such Voting Interest that such Person or group has the right to acquire pursuant to any option right) representing fifty percent (50%) or more of the combined voting power of such Voting Interest.

“ Consolidated Adjusted EBITDA ” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated EBITDA for such period minus , to the extent the same are paid in cash during such period, the sum of (b) Consolidated Maintenance Capital Expenditures, (c) Restricted Payments (other than dividends and repurchases of common stock of Borrower permitted pursuant to Section 8.06(d) made by Borrower from and after January 1, 2010 not to exceed $250,000,000 in the aggregate), and (d) income taxes paid in cash during such period.

“ Consolidated EBITDA ”   means for any period, for Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period, plus (a) to the extent deducted in calculating Consolidated Net Income, the sum of (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable for such period, (iii) the amount of depreciation and amortization expense for such period and (iv) the amount of all non-cash stock compensation incurred during such period, including any non-cash expenses arising from stock options, stock grants or other equity-incentive programs, the granting of stock appreciation rights and similar arrangements, and (b) the lesser of (i) with respect to any four fiscal quarter period ending on and after December 31, 2009, to the extent deducted in calculating Consolidated Net Income, the amount of any non-cash goodwill impairment charge taken during such period, and (ii) Pro Forma Consolidated Net Income for such four fiscal quarter period minus (c) to the extent included in calculating Consolidated Net Income, all non-cash gains
 
 
2
 
recognized during such period, other than the accrual of revenue in the ordinary course of business.

“ Permitted Group ” means (i) Ronald N. Tutor; (ii) any of his brothers, sisters, children of brothers and sisters, grandchildren, grandnieces, grandnephews and other members of his immediate family and other descendants; (iii) in the event of the incompetence or death of any of the Persons described in clauses (i) and (ii), such Person’s estate, executor, administrator, committee or other personal representative; (iv) any trusts created for the benefit of the Persons described in clause (i) or (ii); or (v) any Person controlled by any of the Persons described in clause (i), (ii), or (iv) and (v) any group of Persons (as defined in the Exchange Act) in which the Persons described in clause (i), (ii), or (iv), individually or collectively, Control such group.
 
      2.   Section 1.01 of the Credit Agreement is hereby further amended to add the following new defined terms:

“ Indenture ” means the Indenture among the Borrower, certain subsidiaries of the Borrower, as Guarantors, and the trustee identified therein, issued with respect to the Senior Notes containing terms and conditions previously approved by the Agent, with such modifications prior to the Third Amendment Effective Date as may be consented to in writing by Agent and as may be amended, restated, supplemented or otherwise modified from time to time after the Third Amendment Effective Date in accordance with Section 8.12.

“ Senior Notes ” means collectively, the senior debt obligations issued by Borrower pursuant to the Indenture, as the same may from time to time be amended, restated, supplemented or otherwise modified from time to time.

“ Third Amendment Effective Date ” means the date specified in the Third Amendment dated October 4, 2010 to this Agreement.
 
         3.   Section 2.01.1(b)(i) of the Credit Agreement is hereby amended in its entirety to read as follows:

(i)   the Aggregate Revolving Commitments shall not be increased by an amount in excess of the amount permitted under the introductory paragraph of this Section 2.01(b) without the consent of the Required Class Lenders having Revolving Exposure;
 
         4.   Section 7.02(g) of the Credit Agreement is hereby amended in its entirety to read as follows:

(g)           as soon as available and, in any event, within forty-five (45) days after the end of each quarter of each fiscal year of Borrower, a summary of all of Borrower’s accounts receivable, including the aging and reconciliation of such accounts receivable and an indication of which such accounts arise under contracts in which performance is backed by a bond, guaranty or other undertaking by a surety;

 
3
 
         5.   Section 8.01(b) of the Credit Agreement is hereby amended in its entirety to read as follows:

(b)           Liens existing on the Amendment Effective Date and listed on Schedule 8.01 and any renewals, refinancings extensions thereof, or any subsequent financing of the assets secured by such Liens, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 8.03(b) , (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal, refinancing or extension of the obligations secured or benefited thereby, or subsequent financing of the assets secured by such Liens, is permitted by Section 8.03(b) ;
 
         6.   Sections 8.02(d)(vi) of the Credit Agreement is hereby amended in its entirety to read as follows:

(vi) the Purchase Price paid by such Loan Party for any such Acquisition shall not exceed (i) $125,000,000 for any one such Acquisition and (ii) $400,000,000 in the aggregate for all such Acquisitions occurring during the term of this Agreement, or, if the Purchase Price is greater than such dollar amounts, the prior written approval of the Required Lenders shall have been obtained.
 
         7.   Sections 8.02(f) of the Credit Agreement is hereby amended in its entirety to read as follows:

(f) Investments in CIS not to exceed $1,000,000 in the aggregate, plus any and all Letters of Credit required by any Governmental Authority to be issued for the account of CIS up to an amount not to exceed $25,000,000 in the aggregate.
 
         8.   Section 8.03(b) of the Credit Agreement is hereby amended in its entirety to read as follows:

(b)           Indebtedness of Borrower and its Subsidiaries set forth in Schedule 8.03 and renewals, refinancings and extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder; and further provided that the Borrower may repay in full any such Indebtedness and then subsequently finance the assets securing such Indebtedness so long as no more than $50,000,000 of such subsequent financing is incurred following the Third Amendment Effective Date;
 
         9.   Sections 8.03(f) of the Credit Agreement is hereby amended in its entirety to read as follows:

(f)           Indebtedness incurred to finance Borrower’s and its Subsidiaries insurance premiums not to exceed $10,000,000 in the aggregate outstanding at any time;
 
         10.   Section 8.03(h) of the Credit Agreement is hereby amended in its entirety to read as follows:

(h)           Guarantees of Indebtedness permitted under clauses (a) through (g,), (k), (m) ,  (n) and (q) of this Section 8.03 incurred by a Loan Party;

 
4
         11.   Section 8.03 of the Credit Agreement is hereby further amended to add the following new subsections “q” and “r”:

(q) Indebtedness under the Senior Notes (which Senior Notes shall not have a principal amount in excess of $300,000,000) less the aggregate amount of all principal payments thereon and repurchases thereof, including all Indebtedness issued in exchange therefore provided that the amount of such Indebtedness is not increased at the time of such exchange.

(r) Indebtedness owing under any preferred stock issued by the Borrower that provides that no mandatory cash payments shall be required, and no mandatory redemption or put right shall apply, until a date that is six (6) months or more after the Maturity Date.
 
         12.   Section 8.05(d)(ii) of the Credit Agreement is hereby amended in its entirety to read as follows:

(ii) operating leases at market rentals of portions of office space not then utilized by Borrower or any of its Subsidiaries in (x) Borrower’s headquarters office building in Framingham, Massachusetts and (y) Perini Building Company’s office building in Las Vegas, Nevada.
 
         13.   Section 8.06(b) of the Credit Agreement is hereby amended in its entirety to read as follows:

(b) Borrower may make cash payments in the ordinary course of business in full or partial settlement of employee stock options or in full or partial settlement of similar incentive compensation arrangements providing employees options, warrants or other rights to acquire shares of Borrower’s capital stock to employees, up to an aggregate amount not to exceed $5,000,000 during any period of twelve consecutive calendar months but only if and to the extent that, before and after giving effect to such cash payment no Default shall have occurred and be continuing;
 
         14.   Section 8.09 of the Credit Agreement is hereby amended in its entirety to read as follows:

8.09            Burdensome Agreements .

Except for Mt. Wayte Realty and CIS, and except with respect to any Joint Venture, enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts on the ability of any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay any Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan Documents, (2) any document or instrument governing Indebtedness incurred pursuant to Section 8.03(e) , provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith, (3) any Permitted Lien or any document or instrument governing any Permitted Lien, provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien or (4) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.05 pending the consummation of such sale, or (b) requires the grant of any security for any obligation if such property is given as security for the Obligations.   
 
 
5
 
The restrictions set forth in the foregoing sections (a)(i) – (a) (vi) and (b) shall not apply to the Contractual Obligations set forth under the Indenture and the Senior Notes.
 
         15.   Section 8.11 of the Credit Agreement is hereby amended in its entirety to read as follows:

8.11            Financial Covenants .

(a)   Consolidated Net Worth .  Permit Consolidated Net Worth to be less than $1,000,000,000 as of the Borrower’s fiscal quarter ending June 30, 2010, and at any time thereafter, an amount equal to the sum of (i) $1,000,000,000, (ii) an amount equal to 50% of the aggregate amount of Consolidated Net Income for each fiscal quarter ending on and after September 30, 2010 (with no deduction for net losses), and (iii) an amount equal to 100% of the aggregate amount of all Equity Issuances after June 30, 2010  that increase consolidated shareholders’ equity.

(b)   Consolidated Leverage Ratio .  Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of Borrower to be greater than 3.00:1.00 until the period ending December 31, 2011 and 2.50:1.00 at all times thereafter.

(c)   Consolidated Fixed Charge Coverage Ratio .  Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of Borrower to be less than 1.50:1.0.
 
         16.   Section 8.12 of the Credit Agreement is hereby amended in its entirety to read as follows:

8.12            Prepayment of Other Indebtedness, Etc.
 
 
(a)           Amend or modify any of the terms of (a) the Indenture or any of the Senior Notes other than amendments or modifications that are not adverse to the Lenders, as reasonably determined by the Administrative Agent and which, together with any prior amendments or modifications, would not have a Material Adverse Effect,   or (b) any other Indebtedness of Borrower or any Subsidiary (other than Indebtedness arising under the Loan Documents or Indebtedness to another Loan Party) other than amendments or modifications, which, together with any prior amendments or modifications, would not have a Material Adverse Effect.

(b)           On and after the occurrence of an Event of Default which is continuing, or if such payment, prepayment or acquisition would result in an Event of Default thereafter, make (or give any notice with respect thereto) any payment or prepayment or redemption or acquisition for value of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness of Borrower or any Subsidiary (other than Indebtedness arising under the Loan Documents) to the extent any of the foregoing are voluntary or optional.
 
         17.   Section 9.01(e) of the Credit Agreement is hereby amended in its entirety to read as follows:

(e)            Cross-Default .  (i) Borrower or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder, Indebtedness under Swap Contracts and Indebtedness consisting of trade payables) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $25,000,000, or (B) fails to observe or perform any other agreement or condition relating to any such
 
 
6
 
Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by Borrower or such Subsidiary as a result thereof is greater than $10,000,000.  Notwithstanding the foregoing, any repurchase (including the payment of any premium) required under the Indenture, in whole or in part, of the Senior Notes other than as a result of a Default or Event of Default under, and as defined in, the Indenture shall not constitute an Event of Default under this Agreement; or
 
         18.   Section 9.01(h) of the Credit Agreement is hereby amended in its entirety to read as follows:

(h)            Judgments .  There is entered against Borrower or any Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding $25,000,000 (to the extent not covered by insurance as to which the insurer has been notified of the claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

         19.   Schedule 2.01.2 (Commitments and Applicable Percentages For Supplemental Revolver Commitment) to the Credit Agreement is hereby replaced with Schedule 2.01.2 attached hereto.
 
         20.   Exhibit 7.02 (form of Compliance Certificate) to the Credit Agreement is hereby replaced with Exhibit 7.02 attached hereto.

B.   Representations and Warranties .  Each Loan Party represents and warrants to Agent and the Lenders that: (a) such Loan Party has the full power and authority to execute, deliver and perform its respective obligations
under the Credit Agreement, as amended by this Amendment, (b) the execution and delivery of this Amendment has been duly authorized by all necessary action of the Board of Directors (or equivalent) of such Loan Party;
(c) after giving effect to this Amendment, the representations and warranties contained or referred to in Article VI of the Credit Agreement are true and accurate in all material respects as if such representations and warranties
were being made as of the Third Amendment Effective Date except to the extent that such representations and warranties specifically refer to an earlier date; and (d) after giving effect to the amendments to the Credit
Agreement set forth herein, no Default or Event of Default has occurred and is continuing.

 
7
 
C.   Other .

1.   The provisions set forth in Section A of this Amendment shall be effective as of the date (the “ Third Amendment Effective Date ”) upon which the Senior Notes are issued under the Indenture (as such terms are defined in Section A) and the Agent receives:

(i)  
this Amendment duly executed and delivered by Agent, the Required Lenders, and the Loan Parties;

(ii)  
(a) resolutions of the Board of Directors of each Loan Party, approving and authorizing the execution, delivery and performance of this Amendment and the other documents delivered in connection herewith to which it is a party, certified as of the Third Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment;  (b) incumbency certificates including certification from the secretary or assistant secretary of each Loan Party that the Organization Documents such Loan Party previously delivered in connection with the Credit Agreement remain true and correct as of the Third Amendment Effective Date;

(iii)  
all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;

(iv)  
such other financial information as may be reasonably requested by Arranger or the Agent;

(v)  
Supplemental Fee Letter; and

(vi)  
all accrued fees, costs and expenses (including, without limitation, the reasonable costs and expenses of Agent’s counsel) incurred by Arranger, Agent and Lenders in connection with this Amendment and invoiced to Borrower.

This Amendment will not become effective, and shall be a nullity, if the Indenture is not effective and the Senior Notes are not issued on or before November 15, 2010.

2.   This Amendment is executed as an instrument under seal and shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to its conflicts of law rules.  All parts of the Credit Agreement and any other Loan Document not affected by this Amendment are hereby ratified and affirmed in all respects, provided that if any provision of the Credit Agreement shall conflict or be inconsistent with this Amendment, the terms of this Amendment shall supersede and prevail.  Upon the execution of this Amendment, all references to the Credit Agreement in that document, or in any other Loan Document, shall mean the Credit Agreement as amended by this Amendment.  Except as expressly provided in this Amendment, the execution and delivery of this Amendment does not and will not amend, modify or supplement any provision of, or constitute a consent to or a waiver of any noncompliance with the provisions of the Credit Agreement, and, except as specifically provided in this Amendment, the Credit Agreement shall remain in full force and effect.  This Amendment may be executed in one or more counterparts with the same effect as if the signatures hereto and thereto were upon the same instrument.


[SIGNATURE PAGES FOLLOW]

 
8
 

IN WITNESS WHEREOF, each of Borrower, Guarantors, Agent and the Lenders in accordance with Section 11.01 of the Credit Agreement, has caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.


 
BORROWER :
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TUTOR PERINI CORPORATION, f/k/a Perini
Corporation , a Massachusetts corporation
 
By:       /s/William B. Sparks  
 
Name:  William B. Sparks
 
Title:    Executive Vice President and Treasurer
 
 
GUARANTORS:            
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PERINI BUILDING COMPANY, INC., an Arizona
corporation
 
By:       /s/William B. Sparks    
 
Name:  William B. Sparks
 
Title:    Treasurer
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PERINI ENVIRONMENTAL SERVICES, INC ., a
Delaware corporation
 
By:       /s/William B. Sparks  
 
Name:  William B. Sparks
 
Title:    Treasurer
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
INTERNATIONAL CONSTRUCTION MANAGEMENT
SERVICES, INC. , a Delaware corporation
 
By:       /s/William B. Sparks    
 
Name:  William B. Sparks
 
Title:    Treasurer
 

 
9
 


WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PERINI MANAGEMENT SERVICES, INC., a Massachusetts corporation
 
By:       /s/William B. Sparks    
 
Name:  William B. Sparks
 
Title:    Treasurer
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
BOW EQUIPMENT LEASING COMPANY, INC., a New Hampshire corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
R.E. DAILEY & CO., a Michigan corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PERINI LAND AND DEVELOPMENT COMPANY, INC., a Massachusetts corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 

 
10
 


WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PARAMOUNT DEVELOPMENT ASSOCIATES, INC. , a Massachusetts corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PERCON CONSTRUCTORS, INC. , a Delaware corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
PERLAND CONSTRUCTION, INC ., a West Virginia corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
JAMES A. CUMMINGS, INC. , a Florida corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 

 
11
 


WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
CHERRY HILL CONSTRUCTION, INC. , a Maryland corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
RUDOLPH AND SLETTEN, INC. , a California corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TUTOR-SALIBA LLC , a California limited liability company
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Chief Financial Officer and Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TUTOR-SALIBA CORPORATION ,
  f/k/a Tutor-Saliba Builders, a California corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Chief Financial Officer and Treasurer
 
 

 
12
 


WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
POWERCO ELECTRIC CORP .,  a California corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Chief Financial Officer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TUTOR HOLDINGS, LLC , a Delaware limited liability company
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TUTOR PACIFIC CONSTRUCTION, LLC,
  a Delaware limited liability company
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TUTOR MICRONESIA CONSTRUCTION, LLC,
  a Delaware limited liability company
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 

 
13
 


WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
G.W. MURPHY CONSTRUCTION COMPANY, INC.,   a Hawaii corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
E.E. BLACK, LIMITED, a Hawaii corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
DESERT PLUMBING & HEATING CO., INC.,
  a Nevada corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
BLACK CONSTRUCTION INVESTMENTS, INC. ,   a Nevada corporation
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 

 
14
 


WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
TPC AGGREGATES, LLC , a Nevada limited liability
company
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Chief Financial Officer
 
 
WITNESS:
 
 
  /s/Lisa M. Melonas
 
  Lisa M. Melonas       
          Print Name
DANIEL J. KEATING CONSTRUCTION COMPANY,
LLC , a Delaware   limited liability company (successor by
conversion to Daniel J. Keating Construction Company, a
Pennsylvania corporation)
 
By:       /s/William B. Sparks
 
Name:  William B. Sparks
 
Title:    Treasurer
 
 
ADMINISTRATIVE AGENT :
 
 
BANK OF AMERICA, N.A. , as Administrative Agent
 
By:         /s/Roberto Salazar
 
Name:  Roberto Salazar
 
Title:    Assistant Vice President
 

 
15
 

 
LENDERS :
 
 
BANK OF AMERICA, N.A ., as a Supplemental Revolver Lender and a Revolving Lender
 
By:       /s/Matthew Koenig
 
Name:  Matthew Koenig
 
Title:    Senior Vice President

 
16
 


 
BMO CAPITAL MARKETS FINANCING, INC., as a Revolving Lender
 
By:          /s/John Armstrong
 
Name:  John Armstrong
 
Title:    Director
 
 

 
17
 


 
TD BANK, N.A., as a Revolving Lender
 
By:                                                                           
 
Name:                                                                           
 
Title:                                                                           

 
18
 


 
SOVEREIGN BANK, as a Revolving Lender
 
By:          /s/Greg Batsevitsky
 
Name:  Greg Batsevitsky
 
Title:    Senior Vice President

 
19
 


 
COMERICA BANK, as a Revolving Lender
 
By:          /s/Nunilo B. Soler
 
Name:  Nunilo B. Soler
 
Title:    First Vice President


 
20
 

 
UNION BANK, N.A. , as a Revolving Lender
 
By:          /s/George Plazola
 
Name:  George Plazola
 
Title:    Vice President

 
21
 

 
U.S. BANK, NATIONAL ASSOCIATION , as a Revolving Lender
 
By:          /s/John I. Paul
 
Name:  John I. Paul
 
Title:    Portfolio Manager

 
22
 


SCHEDULE 2.01.2

COMMITMENTS AND APPLICABLE PERCENTAGES

FOR SUPPLEMENTAL REVOLVER COMMITMENTS

Supplemental Revolver Lender
Initial Applicable Percentage
Supplemental Revolver Commitment
Bank of America, N.A.
333 S. Hope St., 13th FL
Los Angeles, CA 90071
100.000000000%
$99,775,000



 
23
 

ANNEX I TO SCHEDULE 2.01.2




 
SECURITY
CUSIP
POSITION
       
1.  
The Colburn School, CA Series 2006A
13033WWZ2
$8,000,000
       
2.  
Brazos Higher Ed Auth 2006 2-A-14
10620NBB3
$8,250,000
       
3.  
GCO ELF Loan Funding Trust-I Student Loan Asset-Backed 2007-1
A-5AR (144A – QUIB)
36156YAR2
$13,975,000
       
4.  
GCO ELF Loan Funding Trust-1 Student Loan Asset-Baked 2007-1
A-6AR (144A – QUIB)
36156YAS0
$5,500,000
       
5.  
GOAL Financial (ELAB Trust Estate) 2003-A-8 (QUIB or Accredited Investor Only)
281397AW9
$9,600,000
       
6.  
Nat Colleg 1 st Marblehead 2007-3
A-3-AR-7 – NO LETTER REQUIRED
63544DAL6
$15,000,000
       
7.  
Nat Colleg 1 st Marblehead 2007-4
A-2-AR-7 – NO LETTER REQUIRED
63544EAL4
$8,000,000
       
8.  
NELNET Student Loan Trust NSLT 2007-2 A-4 AR-1 (144A – QUIB Only)
64032FAK0
$10,000,000
       
9.  
SLM Student Loan Trust 2006-7 A-6C
78443GAH8
$8,100,000
       
       
10.  
Panhandle Plains Higher Ed Auth 2007 A-3-Limited Retail Due to Blue Sky Laws
698476EE4
$13,350,000



 
24
 

EXHIBIT 7.02
FORM OF COMPLIANCE CERTIFICATE

Financial Statement Date:   , _____
To:
Bank of America, N.A., as Administrative Agent
 
 
Ladies and Gentlemen:

Reference is made to that certain Third Amended and Restated Credit Agreement dated as of September 8, 2008 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among Tutor Perini Corporation, a Massachusetts corporation (the “ Borrower ”), certain Subsidiaries of the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.

The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Borrower, and that:

[Use following paragraph 1 for fiscal year-end financial statements]

1.           Attached hereto are the year-end audited financial statements required by Section 7.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.

[Use following paragraph 1 for fiscal quarter-end financial statements]

1.           Attached hereto are the unaudited financial statements required by Section 7.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.  Such financial statements fairly present the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.

2.           The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by the attached financial statements.

3.           A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and

[select one:]
[to the best knowledge of the undersigned during such fiscal period, the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]

 
25
 
4.           The representations and warranties of the Borrower contained in Article VI of the Agreement, and any representations and warranties of any Loan Party that are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (ii) for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered, and (iii) as otherwise described on Schedule II attached hereto.

5.           The financial covenant analyses and information set forth on Schedule I attached hereto are true and accurate on and as of the date of this Certificate.
 
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of _________________, _____.
 
TUTOR PERINI CORPORATION
 
By:                                                                           
 
Name:                                                                           
 
Title:                                                                           

 
26
 

SCHEDULE I

to the Compliance Certificate
($ in 000’s)

I.
Section 8.11(a) – Consolidated Net Worth.
   
 
A.           Consolidated Shareholders Equity at Statement Date
 
$_____ 
       
 
B.           Minimum Required Consolidated Net Worth [Sum
              of following (i)-(iii)]
 
 
$_____         
       
 
              (i)          $1,000,000,000
$_____    
 
       
 
              (ii)         50% of Consolidated Net Income for each
                           full fiscal quarter ending after June 30, 2010
                           (no reduction for net losses)
 
 
$_____       
 
       
 
             (iii)        Equity Issuances after June 30, 2010
                           that increase consolidated shareholders’ equity
 
$_____     
 

II.
Section 8.11 (b) – Consolidated Leverage Ratio.
   
 
A.            Consolidated Funded Indebtedness at Statement Date [Sum
              of following (i) – (vii)]
 
 
$_____          
       
 
              (i)           obligations for borrowed money, and all obligations
                             evidenced by bonds (other than surety bonds),
                             debentures, notes, loan agreements or other similar
                             instruments
 
 
 
$_____         
 
       
 
              (ii)          purchase money Indebtedness
$_____
 
       
 
             (iii)          all obligations arising under letters of credit (including
                             standby and commercial), bankers’ acceptances, bank
                             guaranties, and similar instruments
 
 
$_____     
 
       
 
             (iv)          all obligations in respect of the deferred purchase
                             price of property or services
 
$_____        
 
       
 
             (v)           all Attributable Indebtedness
$_____
 
       
 
             (vi)          all Guarantees with respect to Indebtedness of the
                             types specified in (i) through (v) above of another
                             Person
 
 
$_____      
 
       
 
             (vii)         all non-recourse Indebtedness of the types referred to
                             above of any partnership or joint venture in which
                             Borrower or a Subsidiary is a general partner or
                             joint venturer
 
 
 
$_____
 


 
27
 
 
B.          Pro Forma Consolidated Net Income [Line (i) minus (ii)]
 
$_____         
       
 
              (i)             Pro Forma Pre-Tax Income [Line (1) plus (2)]
$_____   
 
     
                                  (1)     Income before Income Taxes  $_____
       
 
(2)     Total Non-Cash Goodwill
          Impairment Charges (to the
          extent they reduced (1))
 
 
$_____        
       
 
(ii)           Pro Forma Income Taxes (calculated using
                                Pro Forma Pre-Tax Income as the amount of income)
 
$_____        
 
       
 
Consolidated EBITDA for four quarters ending at Statement Date
[Sum of Lines (i) - (vii) minus Line (viii)]
 
 
$_____           
       
 
             (i)                 Consolidated Net Income
$_____          
 
       
 
             (ii)                Consolidated Interest Charges
$_____          
 
       
 
             (iii)               Provision for Income Taxes
$_____          
 
       
 
             (iv)               Depreciation expenses
$_____         
 
       
 
             (v)                Amortization expenses
$_____          
 
       
 
             (vi)               Stock-based compensation expenses
$_____          
 
       
               (vii)              Lesser of Pro Forma Consolidated Net Income and
                                  Total Non-Cash Goodwill Impairment Charges
   
       
               (viii)             minus non-cash gains (other than accrual of revenue
                                  in ordinary course)
 $_____   
       
 
C.          Consolidated Leverage Ratio (Line II.A ¸ Consolidated  EBITDA
             as calculated under the above B)
 
 
_____to 1
       
               Maximum permitted         [3.00 to] [2.5 to 1] 1

III.
Section 8.11 (c) – Consolidated Fixed Charge Coverage Ratio.
   
       
 
A.          Consolidated Adjusted EBITDA for Subject Period
              [line (i)  minus sum of lines (ii), (iii) and (iv)]
 
 
$_____       
       
 
              (i)           Consolidated EBITDA (From Line II (B))
$_____ 
 
       
 
              (ii)          Consolidated Maintenance Capital Expenditure
                             for Subject Period paid in cash
 
$_____ 
 
         
1 3.00:1 through period ending December 31, 2011;2.5:1 thereafter

 
28
 


       
                  (iii)            Restricted Payments during Subject Period paid
                  in cash 2
   
       
 
                (iv)            Income taxes paid in cash
$_____           
 
       
 
B.           Consolidated Fixed Charges [sum of lines (i) and (ii) below]
 
$_____ 
       
 
              (i)                Cash portion of Consolidated Interest Charges
$_____            
 
       
 
              (ii)               Consolidated Scheduled Funded Debt Payments
$_____          
 
       
 
C.           Consolidated Fixed Charge Coverage Ratio [(Line III.A. ¸
              Line III.B)]
 
 
_____to 1
       
 
              Minimum required
1.5 to 1
 
       
 
D.          Aggregate Dividends and Repurchases of Common Stock
              made since 1/1/2010
 
 
$_____            
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
         
2 other than dividends and repurchases of common stock of Borrower permitted pursuant to Section 8.06(d) of the Credit Agreement
Made by Borrower not to exceed $250,000,000 in the aggregate since January 1, 2010.


 
29
 

EXHIBIT 99.1
 
FOR IMMEDIATE RELEASE
 
 
Tutor Perini Announces Pricing of $300 million of Senior Notes
 
 


SYLMAR, Calif., October 18, 2010 – Tutor Perini Corporation (NYSE: TPC), a leading civil and building construction company, today announced that it has priced its previously announced offering of Senior Notes (“Notes”).
 
The face value of the Notes is $300 million, with an interest rate of 7.625%. The Notes were priced at 99.258% of face value. The Notes will mature on November 1, 2018.
 
The Notes will be sold to qualified institutional buyers pursuant to Rule 144A and to certain persons outside the United States pursuant to Regulation S, each under the Securities Act of 1933, as amended (the "Securities Act"), with closing expected to occur on October 20, 2010, subject to customary closing conditions.
 
The Notes have not been and will not be registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state securities laws. This press release does not constitute an offer to sell or the solicitation of an offer to buy the Notes, nor shall there be any sale of the Notes in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
 
Any issuance of the Notes will be subject to closing conditions.
 
About Tutor Perini Corporation
 
Tutor Perini Corporation is a leading civil and building construction company offering diversified general contracting and design/build services to private clients and public agencies throughout the world. We have provided construction services since 1894 and have established a strong reputation within our markets by executing large complex projects on time and within budget while adhering to strict quality control measures.
 
We offer general contracting, pre-construction planning and comprehensive project management services, including the planning and scheduling of the manpower, equipment, materials and subcontractors required for a project. We also offer self-performed construction services including excavation, concrete forming and placement, steel erection, electrical and mechanical services, plumbing and HVAC. We are known for our major complex building project commitments as well as our capacity to perform large and complex transportation and heavy civil construction for government agencies and private clients throughout the world.

Contacts

Kekst and Company
Douglas Kiker, 212-521-4800
Or
Tutor Perini Corporation
Kenneth Burk, Executive Vice President & CFO
818-362-8391