URS CORPORATION,

 

URS FOX US LP

 

and

 

U.S. BANK NATIONAL ASSOCIATION,

 

as Trustee

 

INDENTURE

 

Dated as of March 15, 2012

 

SENIOR DEBT SECURITIES

 

 

TABLE OF CONTENTS

 

PAGE

 

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE			6
	Section 1.1.	Definitions	6
	Section 1.2.	Other Definitions	12
	Section 1.3.	Incorporation by Reference of the Trust Indenture Act	12
	Section 1.4.	Rules of Construction	13
ARTICLE II THE SECURITIES			13
	Section 2.1.	Form, Dating and Terms	13
	Section 2.2.	Denominations	16
	Section 2.3.	Forms Generally	16
	Section 2.4.	Execution, Authentication, Delivery and Dating	17
	Section 2.5.	Registrar and Paying Agent	18
	Section 2.6.	Paying Agent to Hold Money in Trust	19
	Section 2.7.	Holder Lists	19
	Section 2.8.	Transfer and Exchange	20
	Section 2.9.	Mutilated, Destroyed, Lost or Wrongfully Taken Securities	21
	Section 2.10.	Outstanding Securities	21
	Section 2.11.	Cancellation	21
	Section 2.12.	Payment of Interest; Defaulted Interest	21
	Section 2.13.	Temporary Securities	22
	Section 2.14.	Persons Deemed Owners	22
	Section 2.15.	Computation of Interest	23
	Section 2.16.	Global Securities; Book-Entry Provisions	23
	Section 2.17.	CUSIP Numbers	25
	Section 2.18.	Original Issue Discount and Foreign-Currency Denominated Securities	25
ARTICLE III COVENANTS			25
	Section 3.1.	Payment of Securities	25
	Section 3.2.	Commission Reports	26
	Section 3.3.	Maintenance of Office or Agency	26
	Section 3.4.	Corporate and Organizational Existence	26
	Section 3.5.	Compliance Certificate	27
	Section 3.6.	Statement by Officers as to Default	27
	Section 3.7.	Additional Amounts	27
	Section 3.8.	Calculation of Original Issue Discount	28
ARTICLE IV SUCCESSORS			28
	Section 4.1.	Merger, Consolidation and Sale of Assets	28

 

 

 

 

 

	Section 8.7.	Reinstatement	46
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS			46
	Section 9.1.	Without Consent of Holders	46
	Section 9.2.	With Consent of Holders	48
	Section 9.3.	Compliance with Trust Indenture Act	49
	Section 9.4.	Revocation and Effect of Consents and Waivers	50
	Section 9.5.	Notation on or Exchange of Securities	50
	Section 9.6.	Trustee To Sign Amendments	50
ARTICLE X SECURITIES GUARANTEE			50
	Section 10.1.	Securities Guarantee	50
	Section 10.2.	Execution and Delivery of Securities Guarantees; Notations of Guarantees	52
	Section 10.3.	Limitation on Liability; Termination, Release and Discharge	53
	Section 10.4.	Limitation of Guarantors’ Liability	54
	Section 10.5.	Contribution	54
ARTICLE XI SATISFACTION AND DISCHARGE			54
	Section 11.1.	Satisfaction and Discharge	54
ARTICLE XII MISCELLANEOUS			55
	Section 12.1.	Trust Indenture Act Controls	55
	Section 12.2.	Notices	55
	Section 12.3.	Communication by Holders with other Holders	56
	Section 12.4.	Certificate and Opinion as to Conditions Precedent	56
	Section 12.5.	Statements Required in Certificate or Opinion	57
	Section 12.6.	When Securities Disregarded	57
	Section 12.7.	Rules by Trustee, Paying Agent and Registrar	57
	Section 12.8.	Legal Holidays	57
	Section 12.9.	Governing Law; Waiver of Jury Trial	57
	Section 12.10.	No Recourse Against Others	58
	Section 12.11.	Successors	58
	Section 12.12.	Multiple Originals	58
	Section 12.13.	Severability	58
	Section 12.14.	No Adverse Interpretation of Other Agreements	58
	Section 12.15.	Table of Contents; Headings	58
	Section 12.16.	Force Majeure	58
	Section 12.17.	U.S.A. Patriot Act	58

 

 

N.A. means Not Applicable.

 

Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.

 

This INDENTURE, dated as of March 15, 2012, is entered into by and between URS CORPORATION (“ Parent ”), a Delaware corporation, URS FOX US LP, a Delaware limited partnership and wholly owned subsidiary of Parent (“ Fox LP ” and, together with Parent, the “ Issuers ”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”).

 

W I T N E S S E T H:

 

WHEREAS, the Issuers may from time to time duly authorize the issue of their unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the “ Securities ”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture;

 

WHEREAS, the Issuers have duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery and administration of the Securities; and

 

WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;

 

NOW, THEREFORE, in consideration of the premises and the purchases of the Securities by the holders thereof, the Issuers, on the one hand, and the Trustee, on the other hand, mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.1.   Definitions .

 

  “ Additional Amounts ” means any additional amounts required by the express terms of a Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto, to be paid by either or both of the Issuers with respect to certain taxes, assessments or other governmental charges imposed on certain Holders and that are owing to those Holders.

 

  “ Adjusted Net Assets ” of a Guarantor at any date means the amount by which the fair value of the properties and assets of such Guarantor exceeds the total amount of liabilities, including, without limitation, contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), but excluding liabilities under its Securities Guarantee, of such Guarantor at such date.

 

  “ 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 purposes of this definition, “ control ,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.  For purposes of this definition, the terms “ controlling ,” “ controlled by ” and “ under common control with ” have correlative meanings.

 

  “ Authorized Representative ” means any individual authorized by the Agreement of Limited Partnership of Fox LP, dated as of February 29, 2012, to act on behalf of Fox LP.

 

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

 

  “ Board of Directors ” means:

 

(1)	with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

  “ Board Resolution ” means a copy of a resolution certified, in the case of Parent, by a Vice President, the Secretary or an Assistant Secretary of Parent or, in the case of Fox LP, by an Authorized Representative of Fox LP, to have been adopted by the Board of Directors of Parent or by the general partner of Fox LP, as applicable, or pursuant to authorization by the Board of Directors of Parent or the general partner of Fox LP, as applicable, and to be in full force and effect on the date of such certification and delivered to the Trustee.

 

  “ Business Day ” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto each day that is not a Saturday, Sunday or Legal Holiday in New York, New York or Los Angeles, California on which banking institutions are authorized or required by law, regulation or executive order to close.

 

  “ Capital Stock ” means:

 

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

 

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

 

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

 

(4)

any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

  “ Code ” means the Internal Revenue Code of 1986, as amended.

 

  “ Consolidated Net Tangible Assets ” means the aggregate amount of the assets (less applicable reserves and other properly deductible items) of Parent and its subsidiaries after deducting therefrom (1) all current liabilities (excluding any Indebtedness for money borrowed having a maturity of less than 12 months from the date of Parent’s most recent consolidated balance sheet but which by its terms is renewable or extendible beyond 12 months from that date at the option of the borrower) of Parent and its subsidiaries and (2) intangible assets, including, but not limited to, all goodwill, trade names, patents, unamortized debt discount and expense and any other like intangibles of Parent and its subsidiaries, all as set forth on Parent’s most recent consolidated balance sheet and computed in accordance with GAAP.

 

  “ Credit Agreement ” means Parent’s senior credit facility, dated as of October 19, 2011, among Parent, certain of its Subsidiaries and Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders from time to time party thereto, together with all related letters of credit, collateral documents, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced from time to time, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, or group of lenders.

 

  “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

 

  “ 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.

 

  “ Depositary ” means, with respect to the Securities of any series issuable or issued in whole or in part in global form, the Person specified pursuant to Section 2.1 hereof as the initial Depositary with respect to the Securities of that series, until a successor shall have been appointed and become such pursuant to the applicable provision of this Indenture, and thereafter “ Depositary ” shall mean or include that successor.

 

  “ Dollar ” or “ $ ” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debt.

 

  “ DTC ” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Issuers.

 

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

 

  “ Fox LP ” has the meaning ascribed to it in the first introductory paragraph of this Indenture.

 

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

 

  “ Global Securities ” of any series means a Security of that series that is issued in global form in the name of the Depositary with respect thereto or its nominee.

 

  “ Government Securities ” means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States of America is pledged.

 

“ Guarantee ” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to maintain financial statement conditions or otherwise), or entered into for purposes of assuring in any other manner the obligee of such indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part).

 

  “ Guarantors ” means, with respect to any series of Securities, the Person or Persons, if any, named in accordance with Section 2.1(i) as the “Guarantors” with respect to such series and which shall have entered into a supplemental indenture pursuant to Section 9.1(k) hereof whereby such Person shall have executed a Securities Guarantee under this Indenture with respect to such series of Securities until, as to any particular Guarantor, a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter any reference to such “Guarantor” shall mean such successor Person.  If a series of Securities does not have any Guarantors, all references in this Indenture to Guarantors shall have no effect and shall be ignored with respect to such Securities.  Upon the release of any Guarantor pursuant to Section 10.3 , each reference to “Guarantor” shall exclude such Person.

 

  “ Holder ” means a Person in whose name a Security is registered in the applicable Securities Register.

 

  “ Indebtedness ” means, with respect to any specified Person, any obligations of such Person, whether or not contingent, in respect of borrowed money (including, without limitation, indebtedness for borrowed money evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof)).  In addition, the term “Indebtedness” includes any Guarantee by the specified Person of Indebtedness of any other Person.

 

  “ Indenture ” means this Indenture as amended or supplemented from time to time by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.  The term “ Indenture ” shall also include the terms of any particular series of Securities and of any Securities Guarantees thereof established as contemplated by Section 2.1 .

 

  “ Interest Payment Date ,” when used with respect to any Security, shall have the meaning assigned to that term in the Security as contemplated by Section 2.1 .

 

  “ Issuers ” has the meaning ascribed to it in the first introductory paragraph of this Indenture.

 

“ Issuer Order ” means a written order signed in the name of either Parent or Fox LP, as the case may be, by two Officers, one of whom, in the case of Parent, must be Parent’s principal executive officer, principal financial officer or principal accounting officer.

 

“ Issuer Request ” means (1) a written request signed in the name of Parent by its Chief Executive Officer, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, or (2) a written request signed in the name of Fox LP by two of its Authorized Representatives, and, in each case, delivered to the Trustee.

 

  “ Joint Venture ” means, with respect to any Person, any joint venture, limited liability company, partnership or other similar arrangement, whether in corporate, partnership or other legal form, of which some portion is owned by a Person that is not an Affiliate of either of the Issuers.

 

  “ Material Subsidiary ” means Fox LP, each domestic subsidiary of Parent that is a guarantor and any other domestic Subsidiary of Parent which owns a Principal Property.

 

  “ Maturity ” means, with respect to any Security, the date on which the principal of that Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or otherwise.

 

  “ Notation of Guarantee ” has the meaning specified in Section 10.2 , it being understood that each reference herein to any Notation of Guarantee shall apply solely with respect to Securities of any series that are entitled to the benefits of any Securities Guarantee of any Guarantor and as to which Notations of Guarantee are to be included on such Securities as designated pursuant to Section 2.1(i) .

 

  “ Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any indebtedness.

 

  “ Officer ” means, with respect to any Person, the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the General Counsel, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of such Person, or, in the case of Fox LP, any Authorized Representative.

 

  “ Officers’ Certificate ” means a certificate executed (1) in the case of the Issuers, by the respective Chairman of the Board, Chief Executive Officer, President or Vice President of each of the Issuers and the respective Chief Financial Officer, Chief Accounting Officer or Treasurer of each of the Issuers (or in the case of Fox LP, if no such officers exist, by any two Authorized Representatives), (2) in the case of any Guarantors, by the respective chief executive officer, president, chief financial officer, chief accounting officer, vice president, treasurer, or any other employee who is a member of the board of directors of each such Guarantor, and (3) in the case of any other Person, by two Officers, at least one of whom shall be the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer or the Treasurer.

 

  “ Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Trustee.  The counsel may be an employee of or counsel to the Issuers.

 

  “ Original Issue Discount Security ” means any Security that provides for an amount less than the principal amount thereof to be due and payable on a declaration of acceleration of the Maturity thereof pursuant to Section 6.2 .

 

  “ Parent ” has the meaning ascribed to it in the first introductory paragraph of this Indenture.

 

  “ Person ” means any individual, corporation, partnership, limited liability company, business trust, association, joint-stock company, joint venture, trust, incorporated or unincorporated organization or government or any agency or political subdivision thereof or any other entity.

 

  “ Principal Property ” means the land, improvements and buildings (including any leasehold interests therein) constituting a principal corporate office and any engineering, construction, administrative, distribution, sales and marketing or other facility (in each case, whether now owned or hereafter acquired) which is owned or leased by Parent or any of Parent’s Material Subsidiaries, unless such office or facility has a gross book value of less than 2% of Parent’s Consolidated Net Tangible Assets or unless Parent’s Board of Directors or a committee thereof has determined in good faith that such office or facility is not of material importance to the total business conducted by Parent and its Subsidiaries taken as a whole.

 

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

 

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

 

  “ Securities ” has the meaning ascribed to it in the second introductory paragraph of this Indenture.

 

  “ Securities Guarantee ” means the Guarantee by each Guarantor of the Issuers’ Obligations under this Indenture and any series of Securities.

 

  “ Security Custodian ” means, with respect to Securities of a series issued in global form, the Trustee for Securities of that series, as custodian with respect to the Securities of that series, or any successor entity thereto.

 

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

 

  “ Subsidiary ” means, with respect to any Person, any corporation, partnership, trust, limited liability company, association, or other business entity of which more than 50% of the total Voting Stock is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided that in no event shall any Joint Venture be considered to be a Subsidiary of any Person.

 

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

 

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

 

  “ Trustee ” means the Person named as such in the first introductory paragraph of this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture, and thereafter “ Trustee ” means each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “ Trustee ” as used with respect to the Securities of any series means the Trustee with respect to Securities of that series.

 

  “ Voting Stock ” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

Section 1.3.   Incorporation by Reference of the Trust Indenture Act .  This  Indenture is subject to the mandatory provisions of the TIA which are incorporated by reference in and made a part of this Indenture.  The following TIA terms have the following meanings:

 

“ Commission ” means the United States Securities and Exchange Commission.

 

“ indenture securities ” means the Securities.

 

“ indenture security holder ” means a Holder of a Security.

 

“ indenture to be qualified ” means this Indenture.

 

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

 

“ obligor ” on any series of Securities means the Issuers, any Guarantors and any other obligor on such series of Securities.

 

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

 

Section 1.4.   Rules of Construction .  Unless the context otherwise requires:

 

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

 

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

 

(3)   “or” is not exclusive;

 

(4)   “including” means including without limitation;

 

(5)   words in the singular include the plural and words in the plural include the singular;

 

(6)   the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of Parent dated such date prepared in accordance with GAAP; and

 

(7)   provisions apply to successive events and transactions.

 

ARTICLE II

 

THE SECURITIES

 

Section 2.1.   Form, Dating and Terms .

 

The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series.  There shall be established in or pursuant to a Board Resolution of each of the Issuers, and set forth, or determined in the manner provided, in an Officers’ Certificate of each of the Issuers or in an Issuer Order of each of the Issuers, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

 

(a)   the title of the Securities of the series (which shall distinguish the Securities of the series from the Securities of all other series);

 

(b)   if there is to be a limit, the limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.8 , Section 2.9 , Section 2.13 , Section 2.16 , Section 5.7 or Section 9.5 and except for any Securities that, pursuant to Section 2.4 or Section 2.16 , are deemed never to have been authenticated and delivered hereunder); provided , however , that unless otherwise provided in the terms of the series, the authorized aggregate principal amount of such series may be increased before or after the issuance of any Securities of the series by a Board Resolution of each of the Issuers (or action pursuant to a Board Resolution of each of the Issuers) to such effect;

 

(c)   whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.16 , and the initial Depositary and Security Custodian, if any, for any Global Security or Securities of such series;

 

(d)   the manner in which any interest payable on a temporary Global Security on any Interest Payment Date will be paid if other than in the manner provided in Section 2.12 ;

 

(e)   the date or dates on which the principal of and premium (if any) on the Securities of the series is payable or the method of determination thereof;

 

(f)   the rate or rates, or the method of determination thereof, at which the Securities of the series shall bear interest, if any, whether and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the record date for the interest payable on any Securities on any Interest Payment Date, or if other than provided herein, the Person to whom any interest on Securities of the series shall be payable;

 

(g)   the place or places where, subject to the provisions of Section 3.3 , the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series shall be payable;

 

(h)   the period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuers, if the Issuers are to have that option, and the manner in which the Issuers must exercise any such option, if different from those set forth herein;

 

(i)   whether Securities of the series are entitled to the benefits of any Securities Guarantee of any Guarantor pursuant to this Indenture, the identity of any such Guarantors at the time of initial issuance of the Securities of such series, whether Notations of Guarantees are to be included on such Securities and any terms of such Securities Guarantee with respect to the Securities of the series in addition to those set forth in Article X , or any exceptions to or changes to those set forth in Article X ;

 

(j)   the obligation, if any, of the Issuers to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid in whole or in part pursuant to such obligation;

 

(k)   if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denomination in which any Securities of that series shall be issuable;

 

(l)   if other than Dollars, the currency or currencies (including composite currencies) or the form, including equity securities, other debt securities (including Securities), warrants or any other securities or property of the Issuers, any Guarantor or any other Person, in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series shall be payable;

 

(m)   if the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of the series are to be payable, at the election of the Issuers or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to be payable, the currency or currencies (including composite currencies) in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;

 

(n)   if the amount of payments of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series may be determined with reference to any commodities, currencies or indices, values, rates or prices or any other index or formula, the manner in which such amounts shall be determined;

 

(o)   if other than the entire principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2 ;

 

(p)   any additional means of satisfaction and discharge of this Indenture and any additional conditions or limitations to discharge with respect to Securities of the series and the related Securities Guarantees, if any, pursuant to Article VIII or any modifications of or deletions from such conditions or limitations;

 

(q)   any deletions or modifications of or additions to the Events of Default set forth in Section 6.1 or covenants of the Issuers or any Guarantor set forth in Article III pertaining to the Securities of the series;

 

(r)   any restrictions or other provisions with respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article II ;

 

(s)   if the Securities of the series are to be convertible into or exchangeable for capital stock, other debt securities (including Securities), warrants, other equity securities or any other securities or property of the Issuers, any Guarantor or any other Person, at the option of the Issuers or the Holder or upon the occurrence of any condition or event, the terms and conditions for such conversion or exchange;

 

(t)   if applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 8.2 or Section 8.3 or both such Sections, and, if such Securities may be defeased, in whole or in part, pursuant to either or both such Sections, any provisions to permit a pledge of obligations other than Government Securities (or the establishment of other arrangements) to satisfy the requirements of Section 8.4(a) for defeasance of such Securities and, if other than by a Board Resolution of each of the Issuers, the manner in which any election by the Issuers to defease such Securities shall be evidenced; and

 

(u)   any other terms of the series (which terms shall not be prohibited by the provisions of this Indenture).

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolutions referred to above and (subject to Section 2.3 ) set forth, or determined in the manner provided, in the Officers’ Certificates or Issuer Orders referred to above or in any such indenture supplemental hereto.

 

If any of the terms of the series are established by actions taken pursuant to a Board Resolution of each of the Issuers, a copy of an appropriate record of such actions, together with such Board Resolutions, shall be set forth in an Officers’ Certificate of each of the Issuers or certified by the Secretary or an Assistant Secretary of Parent and an Authorized Representative of Fox LP, as applicable, and delivered to the Trustee at or prior to the delivery of the Officers’ Certificates or Issuer Orders setting forth the terms of the series.

 

Section 2.2.   Denominations

 

.  The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 2.1 .  In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof.

 

Section 2.3.   Forms Generally

 

.  The Securities of each series shall be in fully registered form and in substantially such form or forms (including temporary or permanent global form) established by or pursuant to a Board Resolution of each of the Issuers or in one or more indentures supplemental hereto.  The Securities may have notations, legends or endorsements required by law, securities exchange rule, the certificate of incorporation, bylaws, agreement of limited partnership or other similar governing documents of the Issuers, as applicable, agreements to which either or both of the Issuers is or are subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Issuers).  A copy of the Board Resolutions establishing the form or forms of Securities of any series shall be delivered to the Trustee at or prior to the delivery of the Issuer Order contemplated by Section 2.4 for the authentication and delivery of such Securities.

 

The definitive Securities of each series shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution thereof.

 

The Trustee’s certificate of authentication shall be in substantially the following form:

 

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

 

 

Section 2.4.   Execution, Authentication, Delivery and Dating .  Two Officers of each of the Issuers shall sign the Securities on behalf of the respective Issuers and, with respect to any related Securities Guarantees, Notations of Guarantee as to which are to be endorsed on such Securities, an Officer of each Guarantor shall sign the Notation of Guarantee on behalf of such Guarantor, in each case by manual or facsimile signature.

 

If an Officer of either Issuer or a Guarantor whose signature is on a Security no longer holds that office at the time the Security or the Notation of Guarantee, as the case may be, is authenticated, the Security or Notation of Guarantee shall be valid nevertheless.

 

A Security shall not be entitled to any benefit under this Indenture or any related Securities Guarantees or be valid or obligatory for any purpose until authenticated by the manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that the Security has been authenticated under this Indenture.  Notwithstanding the foregoing, if any Security has been authenticated and delivered hereunder but never issued and sold by the Issuers, and the Issuers deliver such Security to the Trustee for cancellation as provided in Section 2.11 , together with a written statement (which need not comply with Section 12.5 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Issuers, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture or the related Securities Guarantees.

 

At any time and from time to time after the execution and delivery of this Indenture, the Issuers may deliver Securities of any series executed by the Issuers (and, if applicable, the Notation of Guarantee for such series executed by each Guarantor with respect to such series) to the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for original issue upon an Issuer Order for the authentication and delivery of such Securities or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by Issuer Order.  Such order shall specify the amount of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, the name or names of the initial Holder or Holders and any other terms of the Securities of such series not otherwise determined.  If provided for in such procedures, such Issuer Order may authorize authentication and delivery of Securities of such series for original issue from time to time, with certain terms (including, without limitation, the Maturity dates or dates, original issue date or dates and interest rate or rates) that differ from Security to Security.

 

If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions of the Issuers as permitted by Section 2.1 , in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive (in addition to the Issuer Order referred to above and the other documents required by Section 12.4 ), and (subject to Section 7.1 ) shall be fully protected in conclusively relying upon:

 

(a)   an Officers’ Certificate of each of the Issuers setting forth the respective Board Resolutions and, if applicable, an appropriate record of any action taken pursuant thereto, as contemplated by the last paragraph of Section 2.1 ; and

 

(b)   an Opinion of Counsel to the effect that:

 

(i)   the form of such Securities has been established in conformity with the provisions of this Indenture;

 

(ii)   the terms of such Securities have been established in conformity with the provisions of this Indenture;

 

(iii)   that such Securities and the related Securities Guarantees, if any, when authenticated and delivered by the Trustee and issued by the Issuers in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuers and the Guarantors, respectively, enforceable against the Issuers and the Guarantors, respectively, in accordance with their respective terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other similar laws in effect from time to time affecting the rights of creditors generally, and the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and

 

(iv)   that all laws and requirements in respect of the execution and delivery by the Issuers of such Securities have been complied with.

 

If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver Officers’ Certificates and an Opinion of Counsel at the time of issuance of each such Security, but such Officers’ Certificates and Opinion of Counsel shall be delivered at or before the time of issuance of the first Security of the series to be issued.

 

The Trustee shall not be required to authenticate such Securities if the issuance of such Securities pursuant to this Indenture would affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the Trustee.

 

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

 

Each Security shall be dated the date of its authentication.

 

Section 2.5.   Registrar and Paying Agent .  The Issuers shall maintain an office or agency for each series of Securities where Securities of such series may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Securities of such series may be presented for payment (the “ Paying Agent ”).  The Issuers shall cause each of the Registrar and the Paying Agent to maintain an office or agency in the United States of America.  The Registrar shall keep a register of the Securities and of their transfer and exchange (the “ Securities Register ”).  The Issuers may have one or more co-registrars and one or more additional paying agents.  The term “ Paying Agent ” includes any additional paying agent.

 

The Issuers shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA.  Such agency agreement shall implement the provisions of this Indenture that relate to such agent.  The Issuers shall notify the Trustee of the name and address of each such agent.  If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7 .  Either of the Issuers or any of their respective Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.

 

The Issuers initially appoint the Trustee as Registrar and Paying Agent for the Securities.

 

Section 2.6.   Paying Agent to Hold Money in Trust .  By no later than 11:00 a.m. (New York time) on the date on which any amount or Additional Amounts, if any, in respect of any Security is due and payable, the Issuers shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such amount or Additional Amounts, if any, when due.  The Issuers shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of the applicable Holders or the Trustee all money held by such Paying Agent for the payment of such amount and Additional Amounts, if any, on the applicable Securities and shall notify the Trustee in writing of any default by the Issuers or any Guarantor in making any such payment.  If the Issuers or a Subsidiary of either Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund.  The Issuers at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent.  Upon complying with this Section 2.6 , the Paying Agent (if other than either of the Issuers or a Subsidiary of either of the Issuers) shall have no further liability for the money delivered to the Trustee.  Upon any bankruptcy, reorganization or similar proceeding with respect to the Issuers, the Trustee shall serve as Paying Agent for the Securities.

 

Section 2.7.   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 Holders.  If the Trustee is not the Registrar with respect to a series of Securities, or to the extent otherwise required under the TIA, the Issuers shall furnish to the Trustee, in writing at least five (5) Business Days before each interest payment date with respect to such series of Securities 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 Holders of such series.

 

Section 2.8.   Transfer and Exchange .

 

Except as set forth in Section 2.16 or as may be provided pursuant to Section 2.1 , when Securities of any series are presented to the Registrar with the request to register the transfer of those Securities or to exchange those Securities for an equal principal amount of Securities of the same series of like tenor and of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements and the requirements of this Indenture for those transactions are met; provided , however , that the Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form reasonably satisfactory to the Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on which instruction the Registrar can rely.

 

To permit registrations of transfers and exchanges, the Issuers shall execute Securities (and, if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee for such series) and the Trustee shall authenticate such Securities at the Registrar’s written request and submission of the Securities (other than Global Securities).  No service charge shall be made to a Holder for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than such transfer tax or similar governmental charge payable on exchanges pursuant to Section 2.13 , Section 5.7 or Section 9.5 ).  The Trustee shall authenticate Securities in accordance with the provisions of Section 2.4 .  Notwithstanding any other provisions of this Indenture to the contrary, the Issuers shall not be required to register the transfer or exchange of (a) any Security selected for redemption in whole or in part pursuant to Article V , except the unredeemed portion of any Security being redeemed in part or (b) any Security during the period beginning fifteen (15) Business Days before the mailing of notice of any offer to repurchase Securities of the series required pursuant to the terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of business on the date of mailing.

 

Section 2.9.   Mutilated, Destroyed, Lost or Wrongfully Taken Securities .

 

If any mutilated Security is surrendered to the Trustee, the Issuers shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Issuers and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuers or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuers shall execute and, upon their request, the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is about to become due and payable, the Issuers, in their discretion, may, instead of issuing a new Security, pay such Security.

 

Every new Security of any series issued pursuant to this Section 2.9 in lieu of any destroyed, lost or wrongfully taken Security shall constitute an original additional contractual obligation of the Issuers, whether or not the destroyed, lost or wrongfully taken Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section 2.9 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities.

 

Section 2.10.   Outstanding Securities .  The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.9 and those described in this Section 2.10 as not outstanding.  A Security ceases to be outstanding in the event the Issuers or a Subsidiary of either Issuer holds the Security, provided , however , that (a) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section 12.6 shall apply and (b) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Securities are present at a meeting of Holders of Securities for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Securities which a Trust Officer of the Trustee actually knows to be held by the Issuers or an Affiliate of the Issuers shall not be considered outstanding.

 

If a Security is replaced pursuant to Section 2.9 , it ceases to be outstanding unless the Trustee and the Issuers receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.

 

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date money sufficient to pay all amounts and Additional Amounts, if any, payable on that date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

 

Section 2.11.   Cancellation .  The Issuers at any time may deliver Securities to the Trustee for cancellation.  The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Securities in accordance with its internal policies (subject to the record retention requirements of the Exchange Act), and certification of their cancellation shall be delivered to the Issuers promptly upon receipt by the Trustee of an Issuer Request.  The Issuers may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.

 

Section 2.12.   Payment of Interest; Defaulted Interest .  Unless otherwise provided in Section 2.1 with respect to the Securities of any series, interest and Additional Amounts, if any, on any Security of such series which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest at the office or agency of the Issuers maintained for such purpose pursuant to Section 2.5 .

 

Unless otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, any interest and Additional Amounts, if any, on any Security of such series which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of thirty (30) days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate provided for in the Securities therefor (such defaulted interest and interest thereon, collectively, the “ Defaulted Interest ”) shall be paid by the Issuers, at their election in each case, as provided in Section 2.12(a) or Section 2.12(b) below:

 

(a)   The Issuers may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the manner set forth in this Section 2.12(a) .  The Issuers shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date (not less than thirty (30) days after such notice) of the proposed payment (the “ Special Interest Payment Date ”), and at the same time the Issuers shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this Section 2.12(a) .  Thereupon the Trustee shall fix a record date (the “ Special Record Date ”) for the payment of such Defaulted Interest, which date shall be not more than fifteen (15) days and not less than ten (10) days prior to the Special Interest Payment Date and not less than ten (10) days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Issuers of such Special Record Date, and in the name and at the expense of the Issuers, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 12.2 , not less than ten (10) days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Section 2.12(b) .

 

(b)   The Issuers may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuers to the Trustee of the proposed payment pursuant to this Section 2.12(b) , such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section 2.12 , each Security delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest and Additional Amounts, if any, each as accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 2.13.   Temporary Securities .  Until definitive Securities of any series are ready for delivery, the Issuers may prepare and the Trustee shall authenticate temporary Securities of such series.  Temporary Securities shall be substantially in the form of definitive Securities, but may have variations that the Issuers considers appropriate for temporary Securities.  Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities.  Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.

 

Section 2.14.   Persons Deemed Owners .  The Issuers, any Guarantors, the Trustee, any Agent and any authenticating agent may treat the Person in whose name any Security is registered as the owner of that Security for the purpose of receiving payments of principal of, premium (if any) or interest on, or any Additional Amounts with respect to, that Security and for all other purposes.  None of the Issuers, the Trustee, any Agent or any authenticating agent shall be affected by any notice to the contrary.

 

Section 2.15.   Computation of Interest .  Except as otherwise provided in Section 2.1 with respect to the Securities of any series, interest on the Securities shall be computed on the basis of a three hundred and sixty (360)-day year of twelve (12) thirty (30)-day months.

 

Section 2.16.   Global Securities; Book-Entry Provisions .  If Securities of a series are issuable in global form as a Global Security, as contemplated by Section 2.1 , then, notwithstanding Section 2.1(j) and the provisions of Section 2.2 , any such Global Security shall represent those of the outstanding Securities of that series as shall be specified therein and may provide that it shall represent the aggregate amount of outstanding Securities of that series from time to time endorsed thereon and that the aggregate amount of outstanding Securities of that series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or redemptions.  Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Securities of that series represented thereby shall be made by the Trustee (a) in such manner and upon instructions given by such Person or Persons as shall be specified in that Security or in an Issuer Order to be delivered to the Trustee pursuant to Section 2.4 or (b) otherwise in accordance with written instructions or such other written form of instructions as is customary for the Depositary for that Security, from that Depositary or its nominee on behalf of any Person having a beneficial interest in that Global Security.  Subject to the provisions of Section 2.4 and, if applicable, Section 2.13 , the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in that Security or in the applicable Issuers’ Order.  Any Global Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary.  If an Issuers’ Order has been, or simultaneously is, delivered, any instructions by the Issuers with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 12.5 and need not be accompanied by an Opinion of Counsel.

 

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or under that Global Security, and the Depositary may be treated by the Issuers, any Guarantor, the Trustee or the Security Custodian and any agent of the Issuers, any Guarantor, the Trustee or the Security Custodian as the absolute owner of that Global Security for all purposes whatsoever.  Notwithstanding the foregoing, (a) the registered holder of a Global Security of any series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of Securities of that series is entitled to take under this Indenture or the Securities of that series and (b) nothing herein shall prevent the Issuers, any Guarantor, the Trustee or the Security Custodian or any agent of the Issuers, any Guarantor, the Trustee, or the Security Custodian from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security.

 

Notwithstanding Section 2.8 , and except as otherwise provided pursuant to Section 2.1 , transfers of a Global Security shall be limited to transfers of that Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees.  Interests of beneficial owners in a Global Security may be transferred in accordance with the rules and procedures of the Depositary.  Securities of any series shall be transferred to all beneficial owners of a Global Security of that series in exchange for their beneficial interests in that Global Security if, and only if, either (a) the Depositary notifies the Issuers that it is unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when the Depositary is required to be so registered in order to act as depositary, and, in either case, a successor depositary is not appointed by the Issuers within ninety (90) days of such notice, (b) the Issuers, at their option, notify the Trustee in writing that they elect to cause the issuance of definitive Securities or (c) a Default or Event of Default has occurred and is continuing with respect to the Securities.

 

In connection with any transfer of a portion of the beneficial interests in a Global Security to beneficial owners pursuant to this Section 2.16 , the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Global Security in an amount equal to the principal amount of the beneficial interest in the Global Security to be transferred, and the Issuers shall execute and, if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such Global Security, if any, and the Trustee on receipt of an Issuers’ Order for the authentication and delivery of Securities shall authenticate and deliver, one or more Securities of the same series of like tenor and amount.

 

In connection with the transfer of all the beneficial interests in a Global Security of any series to beneficial owners pursuant to this Section 2.16 , the Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Issuers shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of Securities of that series of authorized denominations.

 

Neither the Issuers, any Guarantor nor the Trustee will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to those Securities, or for any other actions taken or not taken by the Depositary.  Neither the Issuers, any Guarantor or the Trustee shall be liable for any delay by the related Global Security Holder or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in relying on, instructions from that Global Security Holder or the Depositary for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Securities to be issued).

 

The provisions of the last sentence of the third paragraph of Section 2.4 shall apply to any Global Security if that Global Security was never issued and sold by the Issuers and the Issuers deliver to the Trustee the Global Security together with written instructions (which need not comply with Section 12.5 and need not be accompanied by an Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of the third paragraph of Section 2.4 .

 

Notwithstanding the provisions of Section 2.3 and Section 2.12 , unless otherwise specified as contemplated by Section 2.1 with respect to Securities of any series, payment of principal of and premium (if any) and interest on and any Additional Amounts with respect to any Global Security shall be made to the Person or Persons specified therein.

 

Section 2.17.   CUSIP Numbers .  The Issuers in issuing the Securities of any series may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP, ISIN and Common Code numbers in notices of redemption as a convenience to Holders of Securities of such series; provided , however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Issuers shall promptly notify the Trustee in writing of any change in the CUSIP, ISIN and Common Code numbers.

 

Section 2.18.   Original Issue Discount and Foreign-Currency Denominated Securities .  In determining whether the Holders of the required principal amount of outstanding Securities have concurred in any direction, amendment, supplement, waiver or consent, unless otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, (a) the principal amount of an Original Issue Discount Security of such series shall be the principal amount thereof that would be due and payable as of the date of that determination upon acceleration of the Maturity thereof pursuant to Section 6.2 , and (b) the principal amount of a Security of such series denominated in a foreign currency shall be the Dollar equivalent, as determined by the Issuers by reference to the noon buying rate in New York, New York for cable transfers for that currency, as that rate is certified for customs purposes by the Federal Reserve Bank of New York (the “ Exchange Rate ”) on the date of original issuance of that Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, as determined by the Issuers by reference to the Exchange Rate on the date of original issuance of that Security, of the amount determined as provided in (a) above), of that Security.

 

ARTICLE III

 

COVENANTS

 

Section 3.1.   Payment of Securities .  The Issuers shall promptly pay the principal of, premium, if any, on, and interest and Additional Amounts, if any, on the Securities on the dates and in the manner provided in the Securities and in this Indenture.  Unless otherwise provided by Board Resolution or Officers’ Certificate of each of the Issuers or by supplemental indenture hereto for a particular series of Securities, on or before 11:00 a.m. (New York time), on the applicable payment date, the Issuers shall deposit with the Paying Agent money sufficient to pay the principal of, premium, if any, on, and interest and Additional Amounts, if any, on the Securities of each series in accordance with the terms of such Securities, this Indenture, or any such Board Resolution or Officers’ Certificate of each of the Issuers or supplemental indenture hereto.  Principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the date due if on or before 11:00 a.m. (New York time) on such date the Trustee or the Paying Agent holds in accordance with this Indenture immediately available funds sufficient to pay all principal, premium and interest and Additional Amounts, if any, then due and the Trustee or Paying Agent, as the case may be, is not prohibited from paying money to the Holders on that date pursuant to the terms of this Indenture.

 

The Issuers shall pay interest on overdue principal at the rate specified therefor in the Securities, and the Issuers shall pay interest on overdue installments of interest at the same rate to the extent lawful.

 

Section 3.2.   Commission Reports .  So long as the Securities of any series are outstanding, the Issuers shall:

 

(a)   furnish to the Trustee, within fifteen (15) days after Parent files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which Parent files with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided , however , that any such information, document or report filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor thereto shall be deemed to be filed with the Trustee; provided , further , that the Trustee shall have no responsibility whatsoever to determine whether such filing has occurred; and

 

(b)   comply with the other provisions of TIA § 314(a).

 

Section 3.3.   Maintenance of Office or Agency .  The Issuers will maintain an office or agency in the United States of America for any series of Securities where such Securities may be presented or surrendered for payment, where, if applicable, the Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuers in respect of the Securities of that series and this Indenture may be served.  The principal corporate trust office of the Trustee at the address of the Trustee specified in Section 12.2 hereof (the “ Corporate Trust Office ”) shall be such office or agency of the Issuers, unless the Issuers shall designate and maintain some other office or agency for one or more of such purposes.  The Issuers will give prompt written notice to the Trustee of any change in the location of any such office or agency.  If at any time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuers hereby appoint the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Issuers may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided , however , that no such designation or rescission shall in any manner relieve the Issuers of their obligation to maintain an office or agency in the United States of America for such purposes.  The Issuers will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.

 

Section 3.4.   Corporate and Organizational Existence .  Subject to Article IV of this Indenture, each of the Issuers will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate or limited partnership existence and rights, as applicable; provided , however , that this Section 3.4 shall not prohibit or restrict the Issuers from converting into a different form of legal entity.

 

Section 3.5.   Compliance Certificate .  Each of the Issuers shall deliver to the Trustee, within one hundred and twenty (120) days after the end of each fiscal year of the respective Issuer, an Officers’ Certificate of such Issuer stating that, in the course of the performance by the signatories of their duties as Officers or Authorized Representatives of the applicable Issuer, they would normally have knowledge of any Default or Event of Default and that, if applicable, they do not know of any Default or Event of Default that occurred during the preceding fiscal year of the respective Issuer.  If such signatories do know of any Default or Event of Default that occurred, the Officers’ Certificates shall describe the Default or Event of Default of which he or she may have knowledge, its status and what action the applicable Issuer has taken, is taking or proposes to take with respect thereto.

 

Section 3.6.   Statement by Officers as to Default .  So long as Securities of any series are outstanding, each Issuer shall deliver to the Trustee, promptly upon becoming aware of the occurrence of any Default or Event of Default with respect to that series of Securities, an Officers’ Certificate setting forth the details of such Default or Event of Default and the action which the respective Issuer is taking or proposes to take in respect thereof.

 

Section 3.7.   Additional Amounts .  If the Securities of a series expressly provide for the payment of Additional Amounts, the Issuers will pay to the Holder of any Security of that series Additional Amounts as expressly provided therein.  Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received from the sale or exchange of any Security of any series, that mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.7 to the extent that, in that context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.7 , and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where that express mention is not made.

 

Unless otherwise provided pursuant to Section 2.1 with respect to Securities of any series, if the Securities of a series provide for the payment of Additional Amounts, at least ten (10) days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least ten (10) days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the Officers’ Certificates described in the immediately following clause of this sentence, the Issuers shall furnish the Trustee and the Issuers’ principal Paying Agent or Paying Agents, if other than the Trustee, with Officers’ Certificates instructing the Trustee and such Paying Agent or Paying Agents whether that payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series.  If any such withholding shall be required, then such Officers’ Certificates shall specify by country the amount, if any, required to be withheld on those payments to those Holders of Securities, and the Issuers will pay to that Paying Agent the Additional Amounts required by this Section 3.7 .  The Issuers covenant to indemnify the Trustee and any Paying Agent for and to hold them harmless against any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificates furnished pursuant to this Section 3.7 .

 

Section 3.8.   Calculation of Original Issue Discount .  If the Securities are issued with original issue discount, the Issuers shall file with the Trustee promptly at the end of each calendar year (a) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (b) other specific information relating to such original issue discount as may then be relevant under the Code.

 

ARTICLE IV

 

SUCCESSORS

 

Section 4.1.   Merger, Consolidation and Sale of Assets .  Neither of the Issuers shall consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of such entity’s property and assets (in one transaction or a series of related transactions) to, any Person, or permit any Person to merge with or into such entity, unless:

 

(a)   such Issuer, as the case may be, shall be the continuing Person, or the Person (if other than such Issuer, as the case may be) formed by such consolidation or into which such Issuer, as the case may be, is merged or that acquired or leased such property and assets (the “ Surviving Person ”), shall be a corporation, partnership or limited liability company organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia, and the Surviving Person shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the Issuers’ obligations under the Indenture and the Securities, including, but not limited to, the obligation to pay Additional Amounts;

 

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

 

(c)   the Issuers deliver to the Trustee an Officers’ Certificate and Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture comply with this provision and that all conditions precedent provided for herein relating to such transaction have been complied with.

 

The Surviving Person will succeed to and be substituted for such Issuer, as the case may be, under this Indenture and the Securities.

 

ARTICLE V

 

REDEMPTION OF SECURITIES

 

Section 5.1.   Applicability of Article .  The Issuers may, with respect to any series of Securities, reserve the right to redeem and pay the series of Securities or may covenant to redeem and pay the series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities, pursuant to a supplemental indenture hereto, or as set forth in Board Resolutions or Officers’ Certificates of each of the Issuers.  Redemption of Securities at the election of the Issuers or otherwise, as permitted or required by any provision of this Indenture, including any applicable provision of an indenture supplemental to this Indenture, shall be made in accordance with such provision and (except as otherwise contemplated by Section 2.1 with respect to the Securities of any series) this Article V .

 

Section 5.2.   Election to Redeem; Notice to Trustee .  In case of any redemption of any series of Securities at the election of the Issuers, the Issuers shall, upon not later than the earlier of the date that is forty five (45) days prior to the Redemption Date fixed by the Issuers or the date on which notice is given to the Holders (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Securities to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities of such series to be redeemed pursuant to Section 5.3 .

 

Section 5.3.   Selection by Trustee of Securities to Be Redeemed .  If less than all of the Securities of any series is to be redeemed at any time, the Trustee will, subject to applicable law, select Securities of any series for redemption as follows:

 

(a)   if the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Securities are listed; or

 

(b)   if the Securities are not listed on any national securities exchange, on a pro rata basis, by lot or by such other method as the Trustee deems fair and appropriate and according to applicable procedures of DTC;

 

provided , however , that the Trustee may select for redemption portions of the principal of Securities of any series that have denominations larger than $2,000 and Securities of any series with a principal amount of $2,000 or less will not be redeemed in part.  Securities of the applicable series and portions of such Securities the Trustee selects for redemption shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof or, with respect to Securities of any series issuable in other denominations pursuant to Section 2.1(k) , the minimum principal denomination for each series and integral multiples thereof.  The Trustee shall make the selection of Securities of any series to be redeemed from Securities of the applicable series outstanding and not previously called for redemption.

 

Section 5.4.   Notice of Redemption .  Notice of an optional redemption shall be mailed in accordance with the provisions of Section 12.2 not less than thirty (30) nor more than sixty (60) days before the Redemption Date to each Holder of Securities to be redeemed at its registered address.  Any redemption and any notice thereof may, at the Issuers’ discretion, be subject to one or more conditions precedent.  The Trustee shall give notice of redemption in the Issuers’ names and at the Issuers’ expense; provided , however , that the Issuers shall deliver to the Trustee, at least forty five (45) days prior to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), Officers’ Certificates of each of the Issuers requesting that the Trustee give such notice at the Issuers’ expense and setting forth the information to be stated in such notice as provided in the immediately following paragraph.

 

The notice shall identify the Securities of the series to be redeemed and shall state:

 

(a)   the Redemption Date;

 

(b)   the redemption price and the amount of accrued interest and Additional Amounts, if any, to the Redemption Date payable as provided in Section 5.6 ;

 

(c)   if less than all outstanding Securities of any series are to be redeemed, the identification of the particular Securities or the portion of the principal amount thereof to be redeemed, as well as the aggregate principal amount of Securities to be redeemed and the aggregate principal amount of Securities to be outstanding after such partial redemption;

 

(d)   in case any Securities are to be redeemed in part only, the notice which relates to such Securities shall state that on and after the Redemption Date, upon surrender of such Securities, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;

 

(e)   that, on the Redemption Date, the redemption price (and accrued interest, if any, to the Redemption Date payable as provided in Section 5.6 ) will become due and payable upon each such Security, or the portion thereof, to be redeemed, and, unless the Issuers defaults in making the redemption payment, that, on and after the Redemption Date, interest and Additional Amounts, if any, on Securities (or the portions thereof) called for redemption will cease to accrue;

 

(f)   the place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any;

 

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

 

(h)   that the Securities of the series called for redemption (other than a Global Note) must be surrendered to the Paying Agent to collect the redemption price;

 

(i)   the CUSIP, ISIN or Common Code number, if any, and that no representation is made as to the accuracy or correctness of the CUSIP, ISIN or Common Code number, if any, listed in such notice or printed on the Securities;

 

(j)   the section of this Indenture and of any applicable supplemental indenture hereto and the paragraph of the Securities pursuant to which the Securities are to be redeemed;

 

(k)   and any other information as may be required by the terms of the particular series or the Securities of a series being redeemed.

 

Once notice of redemption is mailed or published as provided in this Section 5.4 , the Securities of a series called for redemption become due and payable on the Redemption Date and at the redemption price.

 

Section 5.5.   Deposit of Redemption Price .  Not later than 11:00 a.m. (New York time) on the Redemption Date, the Issuers shall deposit with the Trustee or with a Paying Agent (or, if the Issuers are acting as their own Paying Agent, segregate and hold in trust as provided in Section 2.6 ) an amount of money sufficient to pay the redemption price of, and accrued interest and Additional Amounts, if any, on, all the Securities which are to be redeemed on such Redemption Date.

 

Section 5.6.   Securities Payable on Redemption Date .  Notice of redemption having been given in accordance with the provisions of this Indenture and any applicable supplemental indenture hereto, unless the notice of redemption is subject to one or more conditions precedent which have not been satisfied, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the redemption price therein specified (together with accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date), and from and after such Redemption Date (unless the Issuers shall default in the payment of the redemption price and accrued interest and Additional Amounts, if any) such Securities shall cease to bear interest and Additional Amounts, if any.  Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuers at the redemption price, together with accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest and Additional Amounts, if any, due on an interest payment date that is on or prior to the Redemption Date).

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest and Additional Amounts, if any, from the Redemption Date at the rate borne by the Securities.

 

Section 5.7.   Securities Redeemed in Part .  Any Security which is to be redeemed only in part (pursuant to the provisions of this Article V ) shall be surrendered at the office or agency of the Issuers maintained for such purpose pursuant to Section 2.5 (with, if the Issuers or the Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuers and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and (a) the Issuers shall execute a new Security or Securities, (b) if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such new Security or Securities, if any, and (c) the Trustee shall authenticate and make available for delivery to the Holder of such Security, at the expense of the Issuers, a new Security or Securities, in each case of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered; provided , however , that each such new Security will be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.  No Securities of $2,000 or less may be redeemed in part.

 

ARTICLE VI

 

DEFAULTS AND REMEDIES

 

Section 6.1.   Events of Default .  Unless either inapplicable to a particular series or specifically deleted or modified in or pursuant to a supplemental indenture hereto, Board Resolutions or Officers’ Certificates of each of the Issuers, or an Issuer Order establishing such series of Securities or in the form of Security for such series, an “ Event of Default ,” wherever used herein with respect to Securities of any series, means any one of the following events:

 

(a)   Default in the payment of the principal or any premium on any Security of such series when due (whether at Maturity, upon acceleration, redemption or otherwise);

 

(b)   Default in the payment of interest, including additional interest, on any Security of such series within thirty (30) days of its due date;

 

(c)   failure by either or both of the Issuers to observe or perform any other terms of this Indenture (other than a covenant or agreement in respect of which such non-compliance would otherwise be an Event of Default) for a period of sixty (60) days after either or both of the Issuers, as the case may be, receive a notice of Default stating such Issuer is or such Issuers are, as applicable, in breach, which notice must be sent by either the Trustee or Holders of 25% of the principal amount of the Securities of such series;

 

(d)   any Guarantee of a Subsidiary Guarantor ceases to be in full force and effect (other than in accordance with the terms of this Indenture) or a Subsidiary Guarantor denies or disaffirms its Obligations under its Guarantee;

 

(e)   Default on any indebtedness for borrowed money by Parent or a Material Subsidiary, which Default relates to a payment at final Maturity or results in the acceleration of such indebtedness prior to its express Maturity, in an amount in excess of $100.0 million (which acceleration is not rescinded or annulled within thirty (30) days after notice of such acceleration);

 

(f)   either Issuer or any Material Subsidiary pursuant to or within the meaning of applicable Bankruptcy Law:

 

(i)   commences a voluntary case or proceeding;

 

(ii)   consents to the entry of a judgment, decree or order for relief against it in an involuntary case or proceeding;

 

(iii)   consents to the appointment of a Custodian of it or for all or substantially all of its property;

 

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

 

(v)   consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; or

 

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

 

(i)   is for relief against either Issuer or any Material Subsidiary in an involuntary case or proceeding;

 

(ii)   appoints a Custodian of either Issuer or any Material Subsidiary; or

 

(iii)   orders the winding up or liquidation of either Issuer or any Material Subsidiary,

 

and such order or decree under applicable Bankruptcy Law remains unstayed and in effect for sixty (60) consecutive days; or

 

(h)   any other Event of Default provided with respect to Securities of that series, which is specified in Officers’ Certificates or Board Resolutions of each of the Issuers or a supplemental indenture hereto.

 

Section 6.2.   Acceleration of Maturity; Rescission and Annulment .  If an Event of Default with respect to Securities of any series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(f) or Section 6.1(g) ), then in every such case, the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Securities of that series may declare the principal amount of all the Securities of that series, together with all accrued and unpaid interest and Additional Amounts, if any, and premium, if any, on all the Securities of that series to be due and payable immediately, by a notice in writing to the Issuers (and to the Trustee if given by Holders), and upon any such declaration, such principal amount and accrued and unpaid interest and Additional Amounts, if any, and premium, if any, shall become immediately due and payable.  If an Event of Default specified in Section 6.1(f) or Section 6.1(g) shall occur, the principal amount of all the outstanding Securities of that series, together with all accrued and unpaid interest and Additional Amounts, if any, and premium, if any, on all outstanding Securities of that series shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

At any time after such a declaration of acceleration with respect to any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article VI provided, the Holders of a majority in aggregate principal amount of the outstanding Securities of that series, by written notice to the Issuers and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default with respect to Securities of that series, other than the non-payment of the principal and interest, if any, of Securities of that series which have become due solely by such declaration or acceleration, have been cured or waived as provided in Section 6.4 hereof, and, in the event of the cure or waiver of an Event of Default of the type described in Section 6.1(f) and Section 6.1(g) hereof, if the Trustee has 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 thereon.

 

Section 6.3.   Rights and Remedies Cumulative .  Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.9 , no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

If an Event of Default with respect to any Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific performance of any covenant or agreement in this Indenture or any supplemental indenture hereto or in aid of the exercise of any power granted herein or any supplemental indenture hereto, or to enforce any other proper remedy.

 

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

Section 6.4.   Waiver of Past Defaults .  The Holders of not less than a majority in principal amount of the outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past Default hereunder with respect to such series and its consequences, except a Default in the payment of the principal of or interest on any Security of such series; provided , however , that the Holders of a majority in principal amount of the outstanding Securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.  Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; provided , however , that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 6.5.   Control by Majority .  With respect to Securities of any series, the Holders of a majority in aggregate principal amount of the outstanding Securities of such series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee with respect to the Securities of such series; provided , however , that the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or, subject to Section 7.1 and Section 7.2 , that the Trustee determines is unduly prejudicial to the rights of the other Holders or would involve the Trustee in personal liability.  Prior to taking any action hereunder, the Trustee shall be entitled to security or indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

 

Section 6.6.   Limitation on Suits .  Subject to Section 6.7 , a Holder of a Security of any series may not pursue any remedy with respect to this Indenture or the Securities of such series or any related Securities Guarantees unless:

 

(a)   such Holder has previously given to the Trustee written notice stating that an Event of Default is continuing with respect to such series;

 

(b)   Holders of at least 25% in aggregate principal amount of the outstanding Securities of such series have requested in writing that the Trustee pursue the remedy;

 

(c)   such Holders have offered to the Trustee security or indemnity satisfactory to it against any loss, liability or expense;

 

(d)   the Trustee has not complied with such request within sixty (60) days after receipt of the request and the offer of security or indemnity; and

 

(e)   the Holders of a majority in aggregate principal amount of the outstanding Securities of such series have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such sixty (60)-day period.

 

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

 

Section 6.7.   Rights of Holders to Receive Payment .  Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.6 ), the right of any Holder to receive payment of principal of, premium (if any) or interest or Additional Amounts, if any, when due on the Securities held by such Holder, on or after the respective due dates expressed in the Securities, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 6.8.   Collection Suit by Trustee .  If an Event of Default specified in Section 6.1(a) or Section 6.1(b) occurs and is continuing with respect to Securities of any series, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuers for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) with respect to such series and the amounts provided for in Section 7.7 .

 

Section 6.9.   Trustee May File Proofs of Claim .  The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Issuers, their respective Subsidiaries or any of their respective creditors or properties and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.7 .  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 6.10.   Priorities .  Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

 

THIRD :                     To the Issuers or any Guarantors or to such other party as a court of competent jurisdiction may direct.  The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10 .  At least fifteen (15) days before such record date, the Issuers shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.

 

Section 6.11.   Undertaking for Costs .  All parties to this Indenture agree, and each Holder of any Security by his, her or its acceptance thereof shall be deemed to have agreed that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant; provided , however , that this Section 6.11 does not apply to a suit instituted by the Trustee, a suit instituted by the Issuers, a suit instituted by any Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Securities of any series.

 

ARTICLE VII

 

TRUSTEE

 

Section 7.1.   Duties of Trustee .

 

(a)   If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs; provided , however , that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security against loss, liability or expense satisfactory to the Trustee in its sole discretion.

 

(b)   Except during the continuance of an Event of Default with respect to the Securities of any series:

 

(i)   the Trustee undertakes to perform such duties and only such duties as are specifically set forth in 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, opinions or orders furnished to the Trustee and conforming to the requirements of this Indenture; provided , however , that in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions 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 stated therein).

 

(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 Section 7.1(b) ;

 

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

 

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

 

(d)   Every provision of this Indenture that in any way relates to the Trustee, including, but not limited to, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee, shall be subject to the provisions of this Section 7.1 and the provisions of the TIA.

 

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

 

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

 

(g)   Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from either or both of the Issuers shall be sufficient if signed by an Officer of the respective Issuer or Issuers, as applicable.

 

(h)   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 or indemnity satisfactory to it against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.

 

Section 7.2.   Rights of Trustee .  Subject to Section 7.1 hereof:

 

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

 

(b)   Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel from either or both of the Issuers or from any other Person.  The Trustee shall not be liable for any action it takes or omits to take in good faith reliance on an Officers’ Certificate and/or 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 agent appointed with due care.

 

(d)   The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within the rights or powers conferred upon it by this Indenture, provided that the Trustee’s conduct does not constitute negligence or bad faith.

 

(e)   The Trustee may consult with counsel of its selection, and the advice or opinion of such counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder without negligence and in good faith and in accordance with the advice or opinion of such counsel.

 

(f)   The Trustee is not required to make any inquiry or investigation into facts or matters stated in any document but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee determines to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers personally or by agent, in which case the Issuers shall be responsible for the reasonable expenses of such investigation.

 

(g)   The Trustee is not required to take notice and shall not be deemed to have notice of any Default or Event of Default hereunder with respect to any series of Securities, unless a Trust Officer of the Trustee has actual knowledge thereof or has received notice in writing of such Default or Event of Default from the Issuers or the Holders of at least 25% in aggregate principal amount of the Securities of such series then outstanding and such notice references the Securities and this Indenture, and in the absence of any such notice, the Trustee may conclusively assume that no such Default or Event of Default exists.

 

(h)   The Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture.

 

(i)   In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of Securities, each representing less than the aggregate principal amount of Securities outstanding required to take any action thereunder, the Trustee, in its sole discretion may determine what action, if any, shall be taken.

 

(j)   The Trustee’s immunities and protections from liability and its right to indemnification in connection with the performance of its duties under this Indenture shall extend to the Trustee’s officers, directors, agents, attorneys and employees and to the Trustee in each of its capacities hereunder.  Such immunities and protections and right to indemnification, together with the Trustee’s right to compensation, shall survive the Trustee’s resignation or removal, the discharge of this Indenture and final payments of the Securities.

 

(k)   The permissive right of the Trustee to take actions permitted by this Indenture shall not be construed as an obligation or duty to do so.

 

(l)   The Trustee shall have no duty to inquire as to the performance of the Issuers’ covenants herein.

 

(m)   Any request or direction of the Issuers mentioned herein shall be sufficiently evidenced by an Issuer Request or an Issuer Order and any resolution of the Board of Directors of the applicable Issuer may be sufficiently evidenced by a Board Resolution.

 

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

 

(o)   The Trustee may (but shall have no obligation to) request that the Issuers deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

Section 7.3.   Individual Rights of Trustee .  The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Issuers or their respective Affiliates with the same rights it would have if it were not the Trustee.  Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights.  However, the Trustee must comply with Section 7.10 and Section 7.11 .

 

Section 7.4.   Trustee’s Disclaimer .  The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Issuers’ use of the proceeds from the Securities, and it shall not be responsible for any statement of the Issuers in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.

 

Section 7.5.   Notice of Defaults .  If a Default or Event of Default with respect to the Securities of any series occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder of a Security of such series notice of the Default or Event of Default within ninety (90) days after such Default or Event of Default occurs, unless the Default was already cured or waived.  Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest or Additional Amounts, if any, on any Security of any series, the Trustee may withhold the notice if it in good faith determines that withholding the notice is in the interests of Holders of such series.

 

Section 7.6.   Reports by Trustee to Holders .  Within sixty (60) days after each May 15 beginning with the May 15 following the date of this Indenture and for so long as the Securities of any series remain outstanding, the Trustee shall mail to each Holder of Securities of such series, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such reporting date, in accordance with, and to the extent required under, TIA § 313(a).  The Trustee shall also comply with TIA § 313(b), and shall transmit by mail all reports required by TIA § 313(c).

 

A copy of each report at the time of its mailing to Holders of Securities of any series shall be filed with the Commission and each stock exchange (if any) on which the Securities of such series are listed.  The Issuers agree to promptly notify the Trustee in writing whenever the Securities of any series become listed on any stock exchange and of any delisting thereof.

 

Section 7.7.   Compensation and Indemnity .  The Issuers shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the Issuers and the Trustee shall from time to time agree in writing.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuers shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it.  Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents and counsel.

 

The Issuers shall indemnify the Trustee against any and all losses, liabilities or expenses (including reasonable attorneys’ and agents’ fees and expenses) (for purposes of this Section 7.7 , “ losses ”) incurred by it in connection with the administration of this trust and the performance of its duties hereunder.  The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity; provided , however , that any failure to provide such notice shall not deprive the Trustee of its indemnification rights hereunder unless the Issuers are materially prejudiced thereby.  The Issuers shall defend the claim and the Trustee shall provide reasonable cooperation at the Issuers’ expense in the defense.  The Trustee may have one separate counsel and the Issuers shall pay the reasonable fees and expenses of such counsel; provided , however , that the Issuers shall not be required to pay such fees and expenses if they assume the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuers and the Trustee in connection with such defense.  The Issuers shall not be under any obligation to pay for any settlement made without their consent, which consent shall not be unreasonably delayed, conditioned or withheld.

 

The Issuers need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by an officer, director, employee, shareholder or agent of the Trustee through the Trustee’s own willful misconduct, gross negligence or bad faith.

 

To secure the Issuers’ payment obligations set forth in this Section 7.7 , the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of, interest and Additional Amounts, if any, on particular Securities.

 

When the Trustee incurs expenses or renders services after the occurrence of a Default specified in Section 6.1(f) or Section 6.1(g) hereof with respect to the Issuers, the expenses are intended to constitute expenses of administration under any Bankruptcy Law.

 

The provisions of this Section 7.7 shall survive the discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Securities.

 

Section 7.8.   Replacement of Trustee .  The Trustee may resign at any time by so notifying the Issuers.  The Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to the Securities of such series by so notifying the Trustee and may appoint a successor Trustee.  The Issuers shall remove the Trustee if:

 

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

 

(b)   the Trustee is adjudged bankrupt or insolvent;

 

(c)   a receiver or other public officer takes charge of the Trustee or its property; or

 

(d)   the Trustee otherwise becomes incapable of acting.

 

If the Trustee resigns or is removed by the Issuers or by the Holders of a majority in principal amount of the then outstanding Securities of any series and such Holders of such series do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuers shall promptly appoint a successor Trustee with respect to such series.

 

If a successor Trustee with respect to Securities of any series does not take office within sixty (60) days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the then outstanding Securities of such series may petition, at the Issuers’ expense, any court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.

 

If the Trustee with respect to the Securities of a series fails to comply with Section 7.10 , unless the Trustee’s duty to resign is stayed as provided in TIA § 310(b), any Holder who has been a bona fide Holder of a Security of such series for at least six (6) months may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series.

 

In case of the appointment of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to the Issuers and to any Guarantors.  Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, power and duties of the retiring Trustee under this Indenture.  The successor Trustee shall mail a notice of its succession to Holders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7 .

 

In case of the appointment of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuers, any Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more (but not all) series shall execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such appointment and that (a) shall confer to each successor Trustee all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall confirm that all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee.  Nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.  Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee shall have all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.  On request of the Issuers or any successor Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.  Such retiring Trustees shall, however, have the right to deduct its unpaid fees and expenses, including, without limitation, reasonable attorneys’ fees and expenses.

 

Notwithstanding the replacement of the Trustee pursuant to this Section 7.8 , the Issuers’ obligations under Section 7.7 shall continue for the benefit of the retiring Trustee.

 

So long as no Event of Default, or no event which is, or after notice or lapse of time, or both, would become, an Event of Default, shall have occurred and be continuing, and except with respect to a Trustee appointed by the act of the Holders of a majority in principal amount of then outstanding Securities of any series, if the Issuers shall have delivered to the Trustee (a) Board Resolutions appointing a successor Trustee, effective as of a date specified therein, and (b) instruments of acceptance of such appointment, effective as of such date, by such successor Trustee, then the Trustee shall be deemed removed, the successor Trustee shall be deemed to have been appointed by the Issuers and such appointment shall be deemed to have been accepted as contemplated, all as of such date, and all other provisions of this Section 7.8 shall be applicable to such removal, appointment and acceptance except to the extent inconsistent with this subsection.

 

Section 7.9.   Successor Trustee by Merger .  If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.  The predecessor Trustee shall have no liability for any action or inaction by any successor Trustee.

 

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture.

 

Section 7.10.   Eligibility; Disqualification .  The Trustee shall at all times satisfy the requirements of TIA § 310(a).  The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b); provided , however , that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuers are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.

 

Section 7.11.   Preferential Collection of Claims Against Issuers .  The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.

 

ARTICLE VIII

 

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 8.1.   Option to Effect Legal Defeasance or Covenant Defeasance .  Unless otherwise designated pursuant to Section 2.1(t) , the Securities of any series shall be subject to defeasance or covenant defeasance pursuant to Section 8.2 or Section 8.3 , in accordance with any applicable requirements provided pursuant to Section 2.1 and upon compliance with the conditions set forth in this Article VIII .  The Issuers may, at their option and at any time, elect to have either Section 8.2 or Section 8.3 hereof be applied to all outstanding Securities of any series so subject to defeasance or covenant defeasance.  Any such election shall be evidenced by a Board Resolution of each of the Issuers or in another manner specified as contemplated by Section 2.1 for such Securities.

 

Section 8.2.   Legal Defeasance and Discharge .  Upon the Issuers’ exercise under Section 8.1 hereof of the option applicable to this Section 8.2 with respect to Securities of any series, the Issuers shall, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from their respective Obligations with respect to all outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “ Legal Defeasance ”) and each Guarantor, if applicable, shall be released and relieved from all of its Obligations under its Securities Guarantee with respect to such series.  For this purpose, Legal Defeasance means that the Issuers shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities with respect to such series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (a) through (e) below, and to have satisfied all its other Obligations under the Securities with respect to such series and this Indenture (and the Trustee, on demand of and at the expense of the Issuers, 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 Securities with respect to such series to receive, solely from the trust fund described in Section 8.4 and Section 8.5 hereof, and as more fully set forth in such Section 8.4 and Section 8.5 , respectively, payments in respect of the principal of, premium, if any, and interest and Additional Amounts, if any, on such Securities when such payments are due, (b) the Issuers’ Obligations with respect to such Securities of the applicable series concerning issuing temporary Securities, registration of Securities, mutilated, destroyed, lost or stolen Securities and the maintenance of an office or agency for payment, in each case with respect to the applicable series of Securities, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuers’ respective Obligations in connection therewith, and (d)  this Article VIII .  If the Issuers exercise under Section 8.1 hereof the option applicable to this Section 8.2 , subject to the satisfaction of the conditions set forth in Section 8.4 hereof, payment of the Securities with respect to such series may not be accelerated because of an Event of Default.  Subject to compliance with this Article VIII , the Issuers may exercise their option under this Section 8.2 notwithstanding the prior exercise of their option under Section 8.3 hereof.

 

Section 8.3.   Covenant Defeasance .  Upon the Issuers’ exercise under Section 8.1 hereof of the option applicable to this Section 8.3 with respect to Securities of any series, the Issuers shall, with respect to such series of Securities, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be released from their respective Obligations under the covenants contained in Section 3.2 and Section 3.3 , with respect to the outstanding Securities of such series on and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “ Covenant Defeasance ”) and each Guarantor, if applicable, shall be released from all of its Obligations under its Securities Guarantee with respect to such series of Securities, and the Securities of such series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of such series (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 Securities shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities of such series, the Issuers and any Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.  If the Issuers exercise under Section 8.1 hereof the option applicable to this Section 8.3 , subject to the satisfaction of the conditions set forth in Section 8.4 hereof, payment of the Securities of such series may not be accelerated because of an Event of Default specified in Section 6.1 .

 

Section 8.4.   Conditions to Legal or Covenant Defeasance .  In order to exercise Legal Defeasance under Section 8.2 hereof or to exercise Covenant Defeasance under Section 8.3 hereof with respect to the Securities of any series:

 

(a)   the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Securities of such series, cash in Dollars, non-callable Government Securities or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants elected by the Issuers, to pay the principal of, and interest and Additional Amounts, if any, and premium, if any, on the Securities of the applicable series on the stated date of payment thereof or on the applicable Redemption Date, as the case may be; provided , that the Trustee shall have received an irrevocable written order from the Issuers instructing the Trustee to apply such cash or the proceeds of such obligations to said payments with respect to such series of Securities;

 

(b)   in the case of an election under Section 8.2 hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (i) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon, such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

(c)   in the case of an election under Section 8.2 or Section 8.3 hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the respective conditions to any such defeasance, as applicable, as set forth in Section 8.2 and Section 8.3 , respectively, have been satisfied;

 

(d)   no Default or Event of Default with respect to the Securities of such series shall have occurred or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit (other than a Default or Event of Default with respect to the Securities of such series resulting from the incurrence of indebtedness all or a portion of the proceeds of which will be used to defease the Securities of the applicable series concurrently with such incurrence);

 

(e)   such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Issuers or any of their respective Subsidiaries, including Fox LP, is a party or by which the Issuers or any of their respective Subsidiaries, including Fox LP, is bound;

 

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

 

(g)   the Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent (other than, in the case of such legal opinion, clause (5) above as to which such counsel need express no opinion) provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and

 

(h)   the Issuers shall have delivered to the Trustee an opinion of counsel to the effect that after the 91st day following the deposit and assuming that no Holder of such series is an “insider” with respect to the Issuers, as that term is defined in Section 101 of Title 11, United States Bankruptcy Code, as amended (the “ Bankruptcy Code ”), the cash or securities deposited in trust will not be subject to avoidance and repayment under Sections 547 and 550 of the Bankruptcy Code.

 

Section 8.5.   Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions . Subject to Section 8.6 hereof, all cash and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (such qualifying trustee together with the Trustee, collectively for purposes of this Section 8.5 , the “ Trustee ”) pursuant to Section 8.4 hereof in respect of the outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities of such series and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuers acting as Paying Agent) as the Trustee may determine, to the Holders of Securities of such series of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such cash and securities need not be segregated from other funds except to the extent required by law.

 

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

 

Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to time upon the request of the Issuers any cash or non-callable Government Securities held by it as provided in Section 8.4 hereof which, in the opinion of a nationally recognized independent registered public accounting firm expressed in a written certification thereof delivered to the Trustee (which may be the certification delivered under Section 8.4(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

Section 8.6.   Repayment to Issuers .  Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust for the payment of the principal of, premium, if any, on, or interest or Additional Amounts, if any, on, any Security of any series and remaining unclaimed for one year after such principal, premium, if any, or interest or Additional Amounts, if any, has become due and payable shall be paid to the Issuers on their request (unless an abandoned property law designates another Person) or (if then held by the Issuers) shall be discharged from such trust; and such Holder shall thereafter, as an unsecured creditor, look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Issuers as Trustee thereof, shall thereupon cease.

 

Section 8.7.   Reinstatement .  If the Trustee or Paying Agent is unable to apply any cash or non-callable Government Securities in accordance with Section 8.2 , Section 8.3 or Section 8.5 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers’ obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.4 hereof until such time as the Trustee or Paying Agent is permitted to apply all such cash and securities in accordance with Section 8.2 , Section 8.3 or Section 8.5 hereof, as the case may be; provided , however , that, if the Issuers make any payment of principal of, premium, if any, on, or interest or Additional Amounts, if any, on, any Security of such series following the reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of such series to receive such payment from the cash and securities held by the Trustee or Paying Agent.

 

ARTICLE IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

Section 9.1.   Without Consent of Holders .  The Issuers, any Guarantors and the Trustee may amend or supplement this Indenture, the Securities or the Securities Guarantees without notice to or consent of any Holder:

 

(a)   to cure any ambiguity, defect or inconsistency, provided that such action does not adversely affect the Holders of that or any other series of notes in any material respect;

 

(b)   to provide for uncertificated Securities in addition to or in place of certificated Securities;

 

(c)   to establish the form or terms of Securities of any series as permitted by Section 2.1 ;

 

(d)   to evidence the assumption of the Issuers’ obligations to Holders of any Securities in the case of a merger, consolidation or sale of assets pursuant to Section 4.1 hereof;

 

(e)   to add to the covenants of the Issuers or any Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Issuers or any Guarantor;

 

(f)   to make any change that would provide any additional rights or benefits to the Holders of Securities of any series and Securities Guarantees or that does not adversely affect the legal rights under this Indenture of any such Holder in any material respect;

 

(g)   to add any additional Events of Default with respect to all or any series of the Securities (and, if any such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable) for the benefit of the Holders of all or any series of Securities;

 

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

 

(i)   to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no outstanding Security of any series created prior to the execution of such amendment or supplemental indenture that is adversely affected in any material respect by such change in or elimination of such provision;

 

(j)   to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 8.1 ; provided , however , that any such action shall not adversely affect the interest of the Holders of Securities of such series or any other series of Securities in any material respect;

 

(k)   to add any Guarantor with respect to the Securities of any series by executing a supplemental indenture and/or a Securities Guarantee with respect to such series, or release Securities Guarantees of any series, in each case pursuant to the terms of this Indenture;

 

(l)   to secure the Securities of any series;

 

(m)   to appoint a successor trustee; or

 

(n)   to conform the text of this Indenture or any Securities to the description thereof in any prospectus or prospectus supplement of the Issuers with respect to the offer and sale of Securities of any series, to the extent that such provision is inconsistent with a provision of this Indenture or the Securities, as provided in an Officers’ Certificate.

 

After an amendment under this Indenture becomes effective, the Issuers are required to mail to the Holders of each Security affected thereby a notice briefly describing such amendment.  However, the failure to give such notice to all the Holders of each Security affected thereof, or any defect therein, will not impair or affect the validity of the amendment hereof or supplemental indenture hereto under this Section 9.1 .

 

Section 9.2.   With Consent of Holders .  The Issuers, any Guarantors and the Trustee may amend or supplement this Indenture with the consent (including consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Securities) of the Holders of at least a majority in principal amount of the then outstanding Securities of each series affected by such amendment or supplement (acting as separate classes).

 

Upon the request of the Issuers, accompanied by a Board Resolution of each of the Issuers, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.5 , the Trustee shall, subject to Section 9.6 , join with the Issuers and any Guarantors in the execution of such amendment or supplemental indenture.

 

The Holders of a majority in principal amount of the then outstanding Securities of one or more series or of all series affected by such waiver (acting as separate classes) may waive compliance in a particular instance by the Issuers or any Guarantor with any provision of this Indenture with respect to Securities of such series (including waivers obtained in connection with a purchase of, or a tender offer or exchange offer for, Securities of such series).

 

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

 

(a)   reduce the principal of or change the fixed maturity of any Security;

 

(b)   reduce the rate of or change the time for payment of interest, including default interest, on any Security;

 

(c)   waive a Default or Event of Default in the payment of principal of, or interest or premium, or Additional Amounts, if any, on the Securities (except a rescission of acceleration of the Securities of any series by the Holders of at least a majority in aggregate principal amount of the then outstanding Securities of that series and a waiver of the payment default that resulted from such acceleration);

 

(d)   change the place of payment of any Security or make any Security payable in money other than that stated in the Security;

 

(e)   impair the right to institute suit for the enforcement of any payment on or with respect to any Security;

 

(f)   make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of, or interest or premium, if any, on the Securities;

 

(g)   reduce the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver; or

 

(h)   make any change in the foregoing amendment and waiver provisions, except to increase the required percentage or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security.

 

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

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of any other series.

 

A consent to any amendment or waiver under this Indenture by any Holder of the Securities given in connection with a tender of such Holder’s Securities will not be rendered invalid by such tender.  After an amendment under this Section 9.2 becomes effective, the Issuers shall mail to Holders of each Security affected thereby a notice briefly describing such amendment.  The failure to give such notice to all Holders of each Security affected thereby, or any defect therein, shall not impair or affect the validity of an amendment, supplemental indenture or waiver under this Section 9.2 .

 

Section 9.3.   Compliance with Trust Indenture Act .  Every amendment or supplement to this Indenture or the Securities shall comply with the Trust Indenture Act as then in effect.

 

Section 9.4.   Revocation and Effect of Consents and Waivers .  A consent to an amendment or a waiver by a Holder of a Security shall be in writing and bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent or waiver is not made on the Security.  However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.  After an amendment or waiver becomes effective with respect to a series of Securities, it shall bind every Holder of Securities of such series.

 

For purposes of this Indenture, the written consent of the Holder of a Global Security shall be deemed to include any consent delivered by an Agent Member by electronic means in accordance with the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to authorization by, DTC.

 

The Issuers may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture.  The Trustee may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Securities of any series entitled to join in the giving, making or taking of (a) any notice to the Trustee with respect to any alleged Default by the Issuers, (b) any declaration of acceleration pursuant to Section 6.2 , (c) any request to institute proceedings pursuant to Section 6.3 , or (d) any direction referred to in Section 6.5 , in each case with respect to such series.  If a record date is so fixed, then notwithstanding the second preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date.  No such consent shall become valid or effective more than one hundred and eighty (180) days after such record date or such shorter period as may be specified by the Issuers (or the Trustee, if the Trustee set the record date), and such period may be shortened or lengthened from time to time, but not beyond one hundred and eighty (180) days.

 

Section 9.5.   Notation on or Exchange of Securities .  If an amendment changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Holder.  Alternatively, if the Issuers so determine, the Issuers in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.  Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.

 

Section 9.6.   Trustee To Sign Amendments .  The Trustee shall sign any amendment authorized pursuant to this Article IX if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  If it does, the Trustee may but need not sign it.  In signing such amendment the Trustee shall receive indemnity satisfactory to it and shall receive, and (subject to Section 7.1 and Section 7.2 hereof) shall be fully protected in conclusively relying upon an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Indenture, that such amendment is the legal, valid and binding obligation of the Issuers enforceable against the Issuers in accordance with its terms, subject to customary exceptions, and that such amendment complies with the provisions hereof (including Section 9.3 hereof).

 

ARTICLE X

 

SECURITIES GUARANTEE

 

Section 10.1.   Securities Guarantee .  Securities of any series that are to be guaranteed by the Securities Guarantees of any Guarantors shall be guaranteed by such Guarantors as shall be established pursuant to Section 2.1 as Guarantors with respect to the Securities of such series; provided that, prior to the authentication and delivery upon original issuance of Securities of any series that are to be guaranteed by a Person, the Issuers, the Trustee and such Person shall have entered into a supplemental indenture pursuant to Section 9.1(k) hereof whereby such Person shall have executed a Securities Guarantee under this Indenture with respect to any series of Securities as to which such Person has been so established pursuant to Section 2.1 as a Guarantor thereof and shall have made each of the covenants and agreements of a Guarantor hereunder with respect to each such series.

 

Securities of any series that are to be guaranteed by the Securities Guarantees of any Guarantors shall be guaranteed in accordance with the terms of such Securities Guarantees as established pursuant to Section 2.1 with respect to such series of Securities and such Securities Guarantees thereof and (except as otherwise specified as contemplated by Section 2.1 for such series of Securities and such Securities Guarantees thereof) in accordance with this Article X .  Notwithstanding any provision of this Article X to the contrary, the provisions of this Article X relating to any Guarantor shall (a) be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.1 , as entitled to the benefits of the related Securities Guarantee of such Guarantor with respect to such series and (b) so be applicable, and inure to the benefit of, the Securities of such series except to the extent otherwise provided as contemplated by Section 2.1 with respect to the Securities of such series.

 

Any Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety, jointly and severally with any other Guarantor, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and Additional Amounts, if any, on the Securities and all other monetary Obligations of the Issuers under this Indenture.  Any Guarantor shall further agree (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Obligation.

 

Any Guarantor shall waive presentation to, demand of payment from and protest to the Issuers of any of the Obligations and also shall waive notice of protest for nonpayment.  Any Guarantor shall waive notice of any default under the Securities or the Obligations.  The Obligations of any Guarantor shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuers or any other Person under this Indenture, the Securities 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 Securities or any other agreement (other than any such waiver, amendment or modification that expressly modifies a Guarantor’s obligations); (d) the release of any collateral security held by any Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Issuers.

 

Any Guarantor shall further agree that its Securities Guarantee constitutes a Guarantee of payment when due (and not a Guarantee of collection) and shall waive any right to require that any resort be had by any Holder to any Security held for payment of the Obligations.

 

Except as expressly set forth in Article VIII and Section 10.3 , the obligations of each Guarantor shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise.  Without limiting the generality of the foregoing, the obligations of each Guarantor shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof (other than any waiver or modification that expressly modifies a Guarantor’s obligations), by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.

 

Each Guarantor shall further agree that its Securities Guarantee 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 or Additional Amounts, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuers or otherwise.

 

In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuers to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (a) the unpaid amount of such Obligations then due and owing and (b) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.3 .

 

Each Guarantor shall further agree that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (a) the maturity of the Obligations Guaranteed may be accelerated as provided in this Indenture for the purposes of its Securities Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed and (b) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of the Securities Guarantee.

 

Each Guarantor also shall agree to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.1 .

 

Section 10.2.   Execution and Delivery of Securities Guarantees; Notations of Guarantees .  The Securities Guarantee of any Guarantor with respect to Securities of any series as to which such Guarantor has been established as a Guarantor pursuant to Section 2.1 shall be fully evidenced by such Guarantor’s execution and delivery of a supplemental indenture hereto.  Anything herein to the contrary notwithstanding, there shall be no requirement that any Security having the benefit of a Securities Guarantee have endorsed thereon or attached thereto such Securities Guarantee or a notation of such Securities Guarantee.  Solely with respect to Securities of any series that are entitled to the benefits of any Securities Guarantee of any Guarantor and as to which Notations of Guarantee are to be included on such Securities as designated pursuant to Section 2.1(i) , to further evidence its Securities Guarantee set forth in Section 10.1 or otherwise established pursuant hereto with respect to Securities of such series, each of the Guarantors with respect to Securities of any series shall agree that a notation relating to such Securities Guarantee (the “ Notation of Guarantee ”), substantially in the form attached hereto as Annex A , shall be endorsed on each Security of such series entitled to the benefits of such Securities Guarantee authenticated and delivered by the Trustee, which Notation of Guarantee shall be executed by either manual or facsimile signature of an Officer of such Guarantor.  Each of the Guarantors with respect to Securities of any series shall agree that its Securities Guarantee set forth in Section 10.1 or otherwise established pursuant hereto with respect to Securities of such series shall remain in full force and effect notwithstanding any absence of Notations of Guarantees as to such series or any failure to endorse on any Security the Notation of Guarantee relating to such Securities Guarantee.  If any Officer of any Guarantor with respect to Securities of any series, whose signature is on the Notation of Guarantee on any Security of such series, no longer holds that office at the time the Trustee authenticates any Security or at any time thereafter, the Securities Guarantee of such Security shall be valid nevertheless. The delivery of any Security of a series entitled to the benefits of a Securities Guarantee under this Article X or otherwise established pursuant hereto by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of such Securities Guarantee on behalf of each Guarantor.

 

Section 10.3.   Limitation on Liability; Termination, Release and Discharge .

 

(a)   The obligations of any Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Securities Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Securities Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable federal, state or foreign law.

 

(b)   So long as no Event of Default shall have occurred and be continuing, the Securities Guarantee of a Guarantor shall be automatically and unconditionally released and discharged, without the consent of the Holders, and no further action by the Issuers, any Guarantor, the Trustee or any Holders of Securities shall be required for such release:

 

(i)   with respect to a Subsidiary Guarantor which, individually or together with Parent’s other wholly owned domestic Subsidiaries, no longer has any Indebtedness in excess of $100,000,000 outstanding and no longer Guarantees, individually or together with Parent’s other wholly owned domestic subsidiaries, any Indebtedness in excess of $100,000,000 incurred by Parent or any of Parent’s other Subsidiaries;

 

(ii)   unless the Subsidiary Guarantor is the surviving entity, (1) upon any sale, lease or exchange of all or substantially all of the Subsidiary Guarantor’s assets to any person or entity not an affiliate of Parent or (2) upon any sale, exchange or transfer, to any person or entity not an affiliate of Parent, of all of Parent’s direct and indirect interest in such Subsidiary Guarantor;

 

(iii)   upon the full and final payment and performance of all obligations under this Indenture and the Securities;

 

(iv)   upon liquidation and dissolution of a Subsidiary Guarantor in a transaction that is not prohibited by this Indenture;

 

(v)   upon Legal Defeasance or Covenant Defeasance as provided in Article VIII of this Indenture or upon satisfaction and discharge of this Indenture as provided in Article IX of this Indenture; or

 

(vi)   upon any domestic Subsidiary that is a Guarantor ceasing to be a domestic Subsidiary of Parent.

 

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

 

(d)   At any time after the issuance of any series of Securities that is entitled to the benefits of any Securities Guarantee, the Issuers shall cause each of Parent’s current and future domestic Subsidiaries that is a guarantor under the Credit Agreement or that is a wholly owned domestic obligor or wholly owned domestic guarantor, individually or collectively, under any other future Indebtedness of Parent or its Subsidiaries in excess of $100,000,000 to promptly execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary will become a Guarantor in respect of such series of Securities.

 

Section 10.4.   Limitation of Guarantors’ Liability .  Any Guarantor, and by its acceptance thereof each Holder, shall confirm that it is the intention of all such parties that the Guarantee by such Guarantor pursuant to its Securities Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law.  To effectuate the foregoing intention, the Holders and each Guarantor shall irrevocably agree that the obligations of such Guarantor under its Securities Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Securities Guarantee or pursuant to Section 10.5 hereof, result in the obligations of such Guarantor under its Securities Guarantee not constituting such a fraudulent conveyance or fraudulent transfer.  This Section 10.4 is for the benefit of the creditors of each Guarantor.

 

Section 10.5.   Contribution .  In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree that in the event any payment or distribution is made by any Guarantor (a “ Funding Guarantor ”) under its Securities Guarantee, such Funding Guarantor will be entitled to a contribution from each other Guarantor (if any) in a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Issuers’ obligations with respect to the Securities or any other Guarantor’s obligations with respect to its Securities Guarantee.

 

ARTICLE XI

 

SATISFACTION AND DISCHARGE

 

Section 11.1.   Satisfaction and Discharge .  This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of such Securities and as otherwise specified herein) to all outstanding Securities of any series, and the Trustee, upon the Issuers’ demand, will execute appropriate instruments acknowledging the satisfaction and discharge of this Indenture when:

 

(a)   either:

 

(i)   the Issuers have delivered to the Trustee for cancellation all Securities of the applicable series theretofore authenticated under this Indenture (except lost, stolen or destroyed Securities of that series which have been replaced or paid and Securities of that series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuers or discharged from such trust); or

 

(ii)   all Securities of that series outstanding under this Indenture not theretofore delivered to the Trustee for cancellation shall have become due and payable or are by their terms to become due and payable or, if redeemable at the option of the Issuers, are to be called for redemption, within one (1) year and the Issuers shall have deposited with the Trustee sufficient cash or U.S. non-callable Government or U.S. non-callable Government agency notes or bonds that will generate enough cash to pay, at maturity or upon redemption, principal of and any accrued and unpaid interest and premium on all such Securities of that series outstanding under this Indenture;

 

(b)   no Default or Event of Default with respect to such series has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Issuers or any of their respective Subsidiaries is a party or by which the Issuers or any of their respective Subsidiaries is bound;

 

(c)   the Issuers have paid or caused to be paid all sums payable by them hereunder, as and when the same shall be due and payable;

 

(d)   the Issuers have delivered irrevocable instructions to the Trustee hereunder to apply the deposited money toward the payment of such Securities at fixed Maturity or the Redemption Date, as the case may be; and

 

(e)   the Issuers have each delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

ARTICLE XII

 

MISCELLANEOUS

 

Section 12.1.   Trust Indenture Act Controls .  If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the provision required by the TIA shall control.  Any Guarantor in addition to performing its obligations under its Securities Guarantee shall perform such other obligations as may be imposed upon it with respect to this Indenture under the TIA.

 

Section 12.2.   Notices .  Any notice or communication shall be in writing (including facsimile and electronic transmission in PDF format) and delivered in person, by telecopier or overnight air courier guaranteeing next day delivery or mailed by first-class mail addressed as follows:

 

if to the Issuers or any Guarantor:

 

URS Corporation

600 Montgomery Street, 26th Floor

San Francisco, California  94111

Facsimile:  (415) 398-1905

Attention:  General Counsel

 

if to the Trustee:

 

U.S. Bank National Association

633 West Fifth Street, 24th Floor

Los Angeles, California 90071

Facsimile:  (213) 615-6197

Attention:  Paula Oswald

 

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

 

Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed.  The Registrar shall provide the Issuers with address information with respect to the Holders as promptly as practicable following the Issuers’ request therefor.  Any notice or communication shall also be mailed to any Person described in TIA § 3.13(c), to the extent required by the TIA.

 

Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

Section 12.3.   Communication by Holders with other Holders .  Holders of any series of Securities may communicate pursuant to TIA § 312(b) with other Holders of that series or any other series with respect to their rights under this Indenture or the Securities of that series or all series of the Securities.  The Issuers, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).

 

Section 12.4.   Certificate and Opinion as to Conditions Precedent .  Upon any request or application by the Issuers to the Trustee to take or refrain from taking any action under this Indenture, the Issuers shall each furnish to the Trustee:

 

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

 

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

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an Officer of either of the Issuers or any Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Issuers or such Guarantor stating that the information with respect to such factual matters is known to the Issuers or such Guarantor, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 12.5.   Statements Required in Certificate or Opinion .  Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (except for the Certificate specified in Section 3.5 ) shall include:

 

(a)   a statement that the individual 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 individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

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

 

Section 12.6.   When Securities Disregarded .  In determining whether the Holders of the required principal amount of Securities of any series have concurred in any direction, waiver or consent, Securities owned by the Issuers or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuers shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded.  Subject to the foregoing, only Securities outstanding at the time shall be considered in any such determination.

 

Section 12.7.   Rules by Trustee, Paying Agent and Registrar .  The Trustee may make reasonable rules for action by, or a meeting of, Holders.  The Registrar and the Paying Agent may make reasonable rules and set reasonable requirements for their functions.

 

Section 12.8.   Legal Holidays .  A “ Legal Holiday ” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York, New York or San Francisco, California.  If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.  If a regular record date is a Legal Holiday, the record date shall not be affected.

 

Section 12.9.   Governing Law; Waiver of Jury Trial .  THIS INDENTURE, THE SECURITIES AND THE SECURITIES GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THERETO.  EACH OF THE ISSUERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, THE SECURITIES GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 12.10.   No Recourse Against Others .  No director, manager, officer, employee, incorporator, member, partner, stockholder or other owner of Capital Stock of either of the Issuers or any Guarantor, as such, will have any liability for any obligations of either of the Issuers or any Guarantor under the Securities, this Indenture or the Securities Guarantees or for any claim based on, in respect of, or by reason of such obligations or their creation.  Each Holder of Securities by accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Securities.

 

Section 12.11.   Successors .  All agreements of the Issuers in this Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this Indenture shall bind their respective successors.

 

Section 12.12.   Multiple 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.  One signed copy is enough to prove this Indenture.  The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

Section 12.13.   Severability .  In case any provision in this Indenture or in the Securities 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 12.14.   No Adverse Interpretation of Other Agreements .  This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuers, any Subsidiary of either of the Issuers or any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture or the Securities Guarantees.

 

Section 12.15.   Table of Contents; Headings .  The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

 

Section 12.16.   Force Majeure .  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 12.17.   U.S.A. Patriot Act .  The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

 

IN WITNESS WHEREOF, the parties have executed this Indenture as of the date first written above.

 

 

	ISSUERS
	URS CORPORATION
	By:	/s/ H. Thomas Hicks
	Name:	H. Thomas Hicks
	Title:	Chief Financial Officer

 

	URS FOX US LP
	By:	/s/ H. Thomas Hicks
	Name:	H. Thomas Hicks
	Title:	Authorized Officer

 

ANNEX A

 

FORM OF NOTATION OF GUARANTEE

 

Each of the Guarantors (which term includes any successor Person under the Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Issuers.

 

The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the Securities Guarantee and the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to the Indenture for the precise terms of the Securities Guarantee.

 

 

[SIGNATURE PAGE TO FOLLOW]

 

 

 

This FIRST SUPPLEMENTAL INDENTURE (this “ First Supplemental Indenture ”), dated as of March 15, 2012, is entered into by and between URS CORPORATION (“ Parent ”), a Delaware corporation, URS Fox US LP, a Delaware limited partnership and wholly owned subsidiary of Parent (“ Fox LP ” and, together with Parent, the “ Issuers ”), the Guarantors listed in Schedule I hereto (the “ Guarantors ”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”).

 

RECITALS

 

WHEREAS, the Issuers and the Trustee have heretofore executed and delivered an Indenture, dated as of March 15, 2012 (the “ Indenture ”), providing for the issuance by the Issuers from time to time of its debt securities to be issued in one or more series;

 

WHEREAS, Sections 2.1 and 9.1 of the Indenture provide, among other things, that the Issuers and the Trustee may, without the consent of Holders, enter into indentures supplemental to the Indenture to provide for specific terms applicable to any series of Securities;

 

WHEREAS, Section 2.1 of the Indenture provides, among other things, that there shall be established in or pursuant to a Board Resolution of each of the Issuers, and set forth, or determined in the manner provided, in an Officers’ Certificate of each of the Issuers or in an Issuer Order of each of the Issuers, or established in one or more indentures supplemental to the Indenture, prior to the issuance of Securities of any series, whether Securities of the series are entitled to the benefits of any Securities Guarantee of any Guarantor pursuant to the Indenture, the identity of any such Guarantors at the time of initial issuance of the Securities of such series, whether Notations of Guarantees are to be included on such Securities and any terms of such Securities Guarantee with respect to the Securities of the series in addition to those set forth in Article X of the Indenture, or any exceptions to or changes to those set forth in Article X of the Indenture;

 

WHEREAS, Section 10.1 of the Indenture provides that prior to the authentication and delivery upon original issuance of Securities of any series that are to be guaranteed by a Person, the Issuers, the Trustee and such Person shall have entered into a supplemental indenture pursuant to Section 9.1(k) of the Indenture whereby such Person shall have executed a Securities Guarantee under the Indenture with respect to any series of Securities as to which such Person has been so established pursuant to Section 2.1 of the Indenture as a Guarantor thereof;

 

WHEREAS, the Issuers intend by this First Supplemental Indenture to create and provide for the issuance of a new series of debt securities to be designated as the “3.850% Senior Notes due 2017” (the “ Notes ”);

 

WHEREAS, the Issuers intend by this First Supplemental Indenture to provide that the Notes will be entitled to the benefits of the Securities Guarantee of the Guarantors;

 

WHEREAS, the Guarantors intend by this First Supplemental Indenture to execute a Securities Guarantee with respect to the Notes;

 

WHEREAS, pursuant to Sections 9.1(i) and 9.1(k) of the Indenture, the Trustee, the Issuers and the Guarantors are authorized to execute and deliver this First Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder of Notes; and

 

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

 

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

 

ARTICLE I

 

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01   Definitions .

 

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

 

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

 

  “ 144A Global Note ” means one or more Global Notes substantially in the form of Exhibit A hereto bearing the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that shall be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Notes sold in global form in reliance on Rule 144A.

 

  “ 2022 Notes ” means the 5.000% Senior Notes due 2022 of the Issuers that have been issued on the date of this First Supplemental Indenture.

 

  “ Acquisition ” means the proposed acquisition by Parent of Flint Energy Services Ltd. (“ Flint ”) in accordance with the Arrangement Agreement, pursuant to which Parent will acquire, through a direct or indirect wholly-owned Subsidiary, all of the issued and outstanding common shares of Flint.

 

  “ Additional Interest ” has the meaning set forth in the Registration Rights Agreement.

 

  “ Applicable Procedures ” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange at the relevant time.

 

  “ Arrangement Agreement ” means that certain Arrangement Agreement, dated as of February 20, 2012, by and between Parent and Flint Energy Services Ltd. with respect to the Acquisition.

 

 

  “ Attributable Debt ” means, in respect of a Sale and Leaseback Transaction, at any time of determination, the present value at that time of the obligation of the lessee for net rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended.  Such present value will be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

 

  “ Broker-Dealer ” has the meaning set forth in the Registration Rights Agreement.

 

  “ Change of Control ” means the occurrence of any of the following after the date hereof:

 

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

 

(2)   the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act, it being agreed that an employee of Parent or any of its Subsidiaries for whom shares are held under an employee stock ownership, employee retirement, employee savings or similar plan and whose shares are voted in accordance with the instructions of such employee shall not be a member of a “group” (as that term is used in Section 13(d)(3) of the Exchange Act) solely because such employee’s shares are held by a trustee under said plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Parent’s Voting Stock representing more than 50% of the voting power of Parent’s outstanding Voting Stock;

 

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

 

(4)   the first day on which the majority of the members of Parent’s Board of Directors cease to be Continuing Directors; or

 

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

 

  Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control solely because Parent becomes a direct or indirect wholly-owned subsidiary of a holding company if the direct and indirect holders of the Voting Stock of such holding company immediately following the transaction are substantially the same as the holders of Parent’s Voting Stock immediately prior to that transaction.

 

  “ Change of Control Triggering Event ” means the Notes cease to be rated Investment Grade by at least two (2) of the three (3) Rating Agencies on any date during the period (the “ Trigger Period ”) commencing on the earlier of (a) the occurrence of a Change of Control and (b) the first public announcement by the Issuers of any Change of Control (or pending Change of Control), and ending sixty (60) days following consummation of such Change of Control (which Trigger Period will be extended following consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings change).  Unless at least two (2) of the three (3) Rating Agencies are providing a rating of the Notes at the commencement of any Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by at least two (2) of the three (3) Rating Agencies during that Trigger Period.  Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

 

  “ Clearstream ” means Clearstream Bank, S.A., or its successors.

 

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

 

  “ Comparable Treasury Price ” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

 

  “ Consolidated Net Tangible Assets ” means the aggregate amount of the assets (less applicable reserves and other properly deductible items) of Parent and its Subsidiaries after deducting therefrom (1) all current liabilities (excluding any Indebtedness for money borrowed having a maturity of less than twelve (12) months from the date of Parent’s most recent consolidated balance sheet but which by its terms is renewable or extendible beyond twelve (12) months from that date at the option of the borrower) of Parent and its Subsidiaries and (2) intangible assets, including, but not limited to, all goodwill, trade names, patents, unamortized debt discount and expense and any other like intangibles of Parent and its Subsidiaries, all as set forth on Parent’s most recent consolidated balance sheet and computed in accordance with GAAP.

 

   “ Continuing Director ” means, as of any date of determination, any member of Parent’s Board of Directors who (1) was a member of such Board of Directors on the date of the issuance of the Notes; or (2) was nominated for election or elected or appointed to Parent’s Board of Directors with the approval of a majority of the Continuing Directors who were members of Parent’s Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of Parent’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

 

 

  “ Credit Agreement ” means Parent’s senior credit facility, dated as of October 19, 2011, among Parent, certain of its Subsidiaries and Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders from time to time party thereto, together with all related letters of credit, collateral documents, guarantees, and any other related agreements and instruments executed and delivered in connection therewith, in each case as amended, modified, supplemented, restated, refinanced, refunded or replaced from time to time, in each case with respect to such agreement or any successor or replacement agreement and whether by the same or any other agent, lender, or group of lenders.

 

  “ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 1.04 hereof.

 

  “ Distribution Compliance Period ” means the forty (40)-day restricted period as defined in Rule 903(b)(3) under the Securities Act.

 

  “ Euroclear ” means Euroclear Bank S.A./N.V., or its successor.

 

  “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

  “ Exchange Notes ” means the Notes issued in the Exchange Offer pursuant to the Registration Rights Agreement.

 

  “ Exchange Offer ” shall have the meaning set forth in the Registration Rights Agreement.

 

  “ Exchange Offer Registration Statement ” shall have the meaning set forth in the Registration Rights Agreement.

 

  “ Fitch ” means Fitch Ratings, Inc. and its successors.

 

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

 

  “ Global Note ” means each of the global Notes issued in accordance with Section 1.04 hereof and substantially in the form of Exhibit A attached hereto that is deposited with or on behalf of and registered in the name of the Depositary.

 

  “ Indebtedness ” means, with respect to any specified Person, any obligations of such Person, whether or not contingent, in respect of borrowed money (including, without limitation, indebtedness for borrowed money evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof)).  In addition, the term “ Indebtedness ” includes any Guarantee by the specified Person of Indebtedness of any other Person.

 

  “ Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Issuers.

 

  “ Indirect Participant ” means any entity that, with respect to DTC, clears through or maintains a direct or indirect custodial relationship with a Participant.

 

  “ Initial Purchasers ” means the Initial Purchasers set forth on Schedule A to the Purchase Agreement, dated March 8, 2012, by and among the Issuers and such Initial Purchasers relating to the initial purchase and sale of the Notes.

 

  “ Institutional Accredited Investor ” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who is not also a QIB.

 

  “ Investment Grade ” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s), a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch) and, if applicable, the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Issuers under the circumstances permitting the Issuers to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of “Rating Agency.”

 

  “ Lien ” means any lien, security interest, charge or encumbrance of any kind.

 

  “ Material Subsidiary ” means Fox LP, each domestic Subsidiary of Parent that is a Guarantor and any other domestic Subsidiary of Parent which owns a Principal Property.

 

  “ Moody’s ” means Moody’s Investors Services, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

  “ Participant ” means, with respect to the Depositary, Euroclear or Clearstream, a person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

 

  “ Person ” means any individual, corporation, partnership, limited liability company, business trust, association, joint-stock company, joint venture, trust, incorporated or unincorporated organization or government or any agency or political subdivision thereof or any other entity.

 

  “ Principal Property ” means the land, improvements and buildings (including any leasehold interests therein) constituting a principal corporate office and any engineering, construction, administrative, distribution, sales and marketing or other facility (in each case, whether now owned or hereafter acquired) which is owned or leased by Parent or any of Parent’s Material Subsidiaries, unless such office or facility has a gross book value of less than 2% of Parent’s Consolidated Net Tangible Assets or unless Parent’s Board of Directors or a committee thereof has determined in good faith that such office or facility is not of material importance to the total business conducted by Parent and its Subsidiaries taken as a whole.

 

  “ Private Placement Legend ” means the legend set forth in Section 1.05(a) hereof to be placed on all Notes issued under this First Supplemental Indenture, except where specifically stated otherwise by the provisions of the Indenture.

 

 

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

 

  “ Rating Agency ” means each of Moody’s, S&P and Fitch; provided that, if any of Moody’s, S&P or Fitch ceases to provide rating services to issuers or investors, the Issuers may appoint another “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act as a replacement for such Rating Agency.

 

  “ Reference Treasury Dealer ” means (1) each of Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC and one other nationally recognized investment banking firm that is a Primary Treasury Dealer (as defined herein) specified from time to time by the Issuers (or each of their respective Affiliates which are Primary Treasury Dealers) and each of their successors; provided , however , that if any of the foregoing shall cease to be a primary United States government securities dealer in the United States (a “ Primary Treasury Dealer ”), the Issuers will substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer; and (2) any other Primary Treasury Dealer(s) selected by the Issuers.

 

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

 

  “ Registration Rights Agreement ” means the Registration Rights Agreement, dated as of the date hereof, by and among the Issuers, the Guarantors party thereto, and the Initial Purchasers, relating to the Notes and the 2022 Notes, as such agreement may be amended or supplemented from time to time and, with respect to any debt securities (other than the Notes and the 2022 Notes) issued under the Indenture as part of the same series as the Notes or the 2022 Notes, as applicable, one or more registration rights agreements by and among the Issuers and the other parties thereto, as such agreement(s) may be amended or supplemented from time to time, relating to rights given by the Issuers to the purchasers of such additional debt securities to register such additional debt securities under the Securities Act.

 

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

 

  “ Regulation S Global Note ” means one or more Global Notes bearing the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Notes initially sold in global form in reliance on Rule 903 of Regulation S.

 

  “ Remaining Scheduled Payments ” means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the released Redemption Date for such redemption; provided , however , that, if such Redemption Date is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such Redemption Date.

 

  “ Restricted Definitive Note ” means one or more Definitive Notes bearing the Private Placement Legend issued under this First Supplemental Indenture.

 

  “ Restricted Global Note ” means one or more Global Notes bearing the Private Placement Legend issued under this First Supplemental Indenture.

 

  “ Restricted Note ” means a Note, unless or until it has been (1) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such Note or (2) eligible to be resold pursuant to Rule 144 (or any similar provision then in force).

 

  “ Rule 144 ” means Rule 144 promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.

 

  “ Rule 144A ” means Rule 144A promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.

 

  “ Sale and Leaseback Transaction ” means any arrangement with any Person providing for the leasing by Parent or any of Parent’s Material Subsidiaries of any property which has been or is to be sold or transferred by Parent or such Material Subsidiary of Parent to such Person, excluding (1) temporary leases for a term, including renewals at the option of the lessee, of not more than three years, (2) leases between Parent and a Material Subsidiary of Parent or between Parent’s Material Subsidiaries, (3) leases of a property executed by the time of, or within twelve (12) months after the latest of, the acquisition, the completion of construction or improvement, or the commencement of commercial operation of the property, and (4) arrangements pursuant to any provision of law with an effect similar to the former Section 168(f)(8) of the Code.

 

  “ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

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

 

  “ Shelf Registration Statement ” shall have the meaning set forth in the Registration Rights Agreement.

 

  “ Special Mandatory Redemption Date ” means the date which is twenty (20) Business Days after the earlier to occur of (1) September 6, 2012 and (2) the date on which the Arrangement Agreement is terminated.

 

  “ Special Mandatory Redemption Price ” means 101% of the aggregate principal amount of the Notes together with accrued and unpaid interest, if any, from the date of original issuance to, but not including, the Special Mandatory Redemption Date.

 

  “ Subsidiary ” means any corporation, partnership or other legal entity (1) the accounts of which are consolidated with Parent in accordance with GAAP and (2) of which, in the case of a corporation, more than 50% of the outstanding voting stock is owned, directly or indirectly, by the Parent or by one or more other Subsidiaries.

 

 

  “ Treasury Rate ” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, calculated on the third business day preceding the Redemption Date, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.

 

  “ Unrestricted Definitive Note ” means a Definitive Note issued under this First Supplemental Indenture that does not bear and is not required to bear the Private Placement Legend.

 

  “ Unrestricted Global Note ” means a Global Note issued under this First Supplemental Indenture that does not bear and is not required to bear the Private Placement Legend.

 

  “ Voting Stock ” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally in the election of the Board of Directors of such Person.

 

 

Section 1.03   Incorporation by Reference of Trust Indenture Act .

 

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

 

“ Commission ” means the United States Securities and Exchange Commission.

 

“ indenture securities ” means the Notes.

 

“ indenture security holder ” means a Holder.

 

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

 

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

 

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

 

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

 

Section 1.04   Transfer and Exchange .

 

This Section 1.04 shall replace Section 2.8 of the Base Indenture with respect to the Notes only.

 

(a)   Registration of Transfer and Exchange .  The Issuers shall keep, or cause to be kept, at its office or agency designated for such purpose as provided in Section 2.5 of the Base Indenture, a register or registers in which, subject to such reasonable regulations as the Issuers may prescribe, the Issuers shall register the Notes and the transfers of Notes as provided in Article II of the Base Indenture and which at all reasonable times shall be open for inspection by the Trustee.

 

To permit registrations of transfers and exchanges, the Issuers shall execute a new Note or Notes presented for a like aggregate principal amount and in authorized denominations and the Trustee shall authenticate and deliver such Note or Notes upon receipt of an Issuer Order for the authentication and delivery of such Notes.  The Trustee shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuers, evidencing the same indebtedness, and entitled to the same benefits under the Indenture, as the Notes surrendered upon such registration of transfer or exchange.  Prior to such due presentment for the registration of a transfer of any Note, the Trustee, the Issuers, any Paying Agent and the Registrar 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 none of the Trustee, the Issuers, the Paying Agent or the Registrar shall be affected by notice to the contrary.

 

All certifications, certificates and opinions of counsel required to be submitted to the Trustee pursuant to this Section 1.04 to effect a registration of transfer or exchange may be submitted via facsimile, electronic mail or other electronic means.

 

(b)   Service Charge .  No service charge shall be made for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.13, 5.7 or 9.5 of the Base Indenture).

 

(c)   Transfer and Exchange of Global Notes .  A Global Note may not be exchanged for Notes registered in the names of Holders other than the Depositary except as provided in Sections 2.8 and 2.16 of the Base Indenture.  In any such event, the Issuers will execute the Definitive Notes, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note and, subject to this Section 1.04 , the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Issuers, if applicable, will authenticate and deliver such Definitive Notes in exchange for such Global Note.  Upon the exchange of the Global Note for such Definitive Notes, the Global Note shall be canceled by the Trustee.  Such Definitive Notes shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its Participants or Indirect Participants or otherwise, shall in writing instruct the Trustee.

 

Except as provided in Sections 2.9 and 2.13 of the Base Indenture, a Global Note may not be exchanged for another Note other than as provided in this Section 1.04(c) ; provided that beneficial interests in a Global Note may be transferred and exchanged as provided in Sections 1.04(d) , 1.04(e) or 1.04(h) hereof.

 

(d)   Transfer and Exchange of Beneficial Interests in the Global Notes .  The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

 

(i)   Transfer of Beneficial Interests in the Same Global Note .  Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided , however , that prior to the expiration of the Distribution Compliance Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a United States Person or for the account or benefit of a United States Person (other than an Initial Purchaser).  Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note.  Subject to Section 1.04(d)(iv) hereof, no written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 1.04(d)(i) .

 

(ii)   All Other Transfers and Exchanges of Beneficial Interests in Global Notes .  Subject to Section 1.04(c) hereof, in connection with all transfers and exchanges of beneficial interests that are not subject to Section 1.04(d)(i) above, the transferor of such beneficial interest must deliver to the Registrar, as applicable, either:

 

(1)   both (x) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the relevant Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (y) instructions given in accordance with the relevant Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

 

(2)   both (x) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the relevant Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (y) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in Section 1.04(d)(ii)(1) above.

 

Upon consummation of an Exchange Offer by the Issuers in accordance with Section 1.04(h) hereof, the requirements of this Section 1.04(d)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions delivered by the holder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in the Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note or Notes pursuant to Section 1.04(i) hereof.

 

(iii)   Transfer of Beneficial Interests to Another Restricted Global Note .  A beneficial interest in any Restricted Global Notes may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 1.04(d)(ii) hereof and the Registrar receives the following:

 

(1)   if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

 

(2)   if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

 

(iv)   Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note .  A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 1.04(d)(ii) hereof and:

 

(1)   such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and Section 1.04(h) hereof, and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies that it is not (x) a Broker-Dealer, (y) a Person participating in the distribution of the Exchange Securities, or (z) a person who is an affiliate (as defined in Rule 144) of either of the Issuers;

 

(2)   such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

(3)   such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

 

(4)   the Registrar receives the following: (x) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or (y) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in this Section 1.04(d)(iv)(4) , if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form, and from legal counsel, reasonably acceptable to the Registrar and the Issuers to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

If any such transfer is effected pursuant to Sections 1.04(d)(iv)(2) or (4) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Issuer Order for the authentication of such Unrestricted Global Note in accordance with Section 2.4 of the Base Indenture, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests so transferred pursuant to Sections 1.04(d)(iv)(2) or (4) above.  Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

(e)   Transfer or Exchange of Beneficial Interests for Definitive Notes .  Subject to Section 1.04(c) hereof:

 

(i)   Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes .  If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

 

(1)   if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

 

(2)   if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

(3)   if such beneficial interest is being transferred to a Person who is not a United States Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

(4)   if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(5)   if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in Sections 1.04(e)(i)(2) through (4) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;

 

(6)   if such beneficial interest is being transferred to the Issuers or any of their respective Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

 

(7)   if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Note to be reduced accordingly pursuant to Section 1.04(i) hereof, and the Issuers shall execute a Restricted Definitive Note in the appropriate principal amount and, upon receipt of an Issuer Order for the authentication and delivery of such Restricted Definitive Note pursuant to Section 2.4 of the Base Indenture, the Trustee shall authenticate and deliver to the Person designated in the instructions such Restricted Definitive Note.  Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 1.04(e) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered.  Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 1.04(e)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

(ii)   Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes .  A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

 

(1)   such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and Section 1.04(h) hereof, and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies that it is not (x) a Broker-Dealer, (y) a Person participating in the distribution of the Exchange Securities or (z) a Person who is an affiliate (as defined in Rule 144) of either of the Issuers;

 

(2)   such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

 

(3)   such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

 

(4)   the Registrar receives the following: (x) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or (y) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in this Section 1.04(e)(ii)(4) , if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form, and from legal counsel, reasonably acceptable to the Registrar and the Issuers to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(iii)   Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes .  If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 1.04(d)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 1.04(i) hereof, and the Issuers shall execute an Unrestricted Definitive Note in the appropriate principal amount and, upon receipt of an Issuer Order for the authentication and delivery of such Unrestricted Definitive Note in accordance with Section 2.4 of the Base Indenture, the Trustee shall authenticate and deliver to the Person designated in the instructions such Unrestricted Definitive Note.  Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 1.04(e)(iii) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered.  Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 1.04(e)(iii) shall not bear the Private Placement Legend.

 

(f)   Transfer and Exchange of Definitive Notes for Beneficial Interests .

 

(i)   Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes .  If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Trustee of the following documentation:

 

(1)   if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

(2)   if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

(3)   if such Restricted Definitive Note is being transferred to a Person who is not a United States Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

(4)   if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(5)   if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in Sections 1.04(f)(i)(2) through (4) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;

 

(6)   if such Restricted Definitive Note is being transferred to the Issuers or any of their respective Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

(7)   if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of Section 1.04(f)(i)(1)  above, the appropriate Restricted Global Note and, in the case of Section 1.04(f)(i)(2)  above, the 144A Global Note and, in the case of Section 1.04(f)(i)(3) above, the Regulation S Global Note, as applicable.

 

(ii)   Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes .  A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if: