CROSS-REFERENCE TABLE

 

TIA		Indenture
Section		Section
303		1.03
310(a)(1)		7.10
(a)(2)		7.10
(a)(3)		N.A.
(a)(4)		N.A.
(b)		7.10
(c)		N.A.
311(a)		7.11
(b)		7.11
(c)		N.A.
312(a)		2.05
(b)		11.03
(c)		11.03
313(a)		7.06
(b)(1)		7.06
(b)(2)		7.07
(c)		7.06; 11.02
(d)		7.06
314(a)		4.03(a); 11.05
(4)		4.04; 11.05
(b)		N.A.
(c)(1)		11.04
(c)(2)		11.04
(c)(3)		N.A.
(d)		N.A.
(e)		11.04; 11.05
(f)		N.A.
315(a)		7.01(b); 7.02
(b)		7.05; 11.02
(c)		7.01(a)
(d)		7.01(c)
(e)		6.11
316(a) (last sentence)		2.09
(a)(1)(A)		6.05
(a)(1)(B)		6.04
(a)(2)		N.A.
(b)		6.07
(c)		2.13
317(a)(1)		6.08
(a)(2)		6.09
(b)		2.04
318(a)		11.01
(c)		11.01

 

N.A. means Not Applicable.

Note:   This Cross-Reference Table shall not, for any purposes, be deemed to be part hereof.

 

 

TABLE OF CONTENTS

 

			Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.	Definitions		1
SECTION 1.02.	Other Definitions		13
SECTION 1.03.	Incorporation by Reference of Trust Indenture Act		13
SECTION 1.04.	Rules of Construction		14
SECTION 1.05.	Acts of Holders; Record Dates		14
ARTICLE 2
THE NOTES
SECTION 2.01.	Form and Dating		15
SECTION 2.02.	Form of Execution and Authentication		17
SECTION 2.03.	Registrar and Paying Agent		18
SECTION 2.04.	Paying Agent To Hold Money in Trust		18
SECTION 2.05.	Lists of Holders of the Notes		19
SECTION 2.06.	Transfer and Exchange		19
SECTION 2.07.	Replacement Notes		30
SECTION 2.08.	Outstanding Notes		30
SECTION 2.09.	Treasury Notes		31
SECTION 2.10.	Temporary Notes		31
SECTION 2.11.	Cancellation		31
SECTION 2.12.	Defaulted Interest		31
SECTION 2.13.	Record Date		32
SECTION 2.14.	CUSIP Number		32
SECTION 2.15.	Joint and Several Liability		32
ARTICLE 3
REDEMPTION
SECTION 3.01.	Notices to Trustee		32
SECTION 3.02.	Selection of Notes To Be Redeemed		32
SECTION 3.03.	Notice of Redemption		33
SECTION 3.04.	Effect of Notice of Redemption		34
SECTION 3.05.	Deposit of Redemption Price		34
SECTION 3.06.	Notes Redeemed in Part		34
SECTION 3.07.	Optional Redemption		34

 

i

 

		Page
ARTICLE 4
COVENANTS
SECTION 4.01.	Payment of Notes	35
SECTION 4.02.	Maintenance of Office or Agency	35
SECTION 4.03.	Reports	35
SECTION 4.04.	Compliance Certificate	36
SECTION 4.05.	Taxes	37
SECTION 4.06.	Stay, Extension and Usury Laws	37
SECTION 4.07.	Limitation on Liens	37
SECTION 4.08.	Additional Subsidiary Guarantees	37
SECTION 4.09.	Organizational Existence	37
SECTION 4.10.	Change of Control and Ratings Decline	38
SECTION 4.11.	Limitation on Sale and Leasebacks	39
SECTION 4.12.	Limitation on Activities of DIRECTV Financing	39
ARTICLE 5
SUCCESSORS
SECTION 5.01.	Merger, Consolidation or Sale of Assets	40
SECTION 5.02.	Successor Corporation Substituted	40
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01.	Events of Default	41
SECTION 6.02.	Acceleration	42
SECTION 6.03.	Other Remedies	43
SECTION 6.04.	Waiver of Past Defaults	43
SECTION 6.05.	Control by Majority	43
SECTION 6.06.	Limitation on Suits	44
SECTION 6.07.	Rights of Holders of Notes To Receive Payment	44
SECTION 6.08.	Collection Suit by Trustee	44
SECTION 6.09.	Trustee May File Proofs of Claim	45
SECTION 6.10.	Priorities	45
SECTION 6.11.	Undertaking for Costs	46
ARTICLE 7
TRUSTEE
SECTION 7.01.	Duties of Trustee	46
SECTION 7.02.	Rights of Trustee	47
SECTION 7.03.	Individual Rights of Trustee	48

 

ii

 

		Page
SECTION 7.04.	Trustee’s Disclaimer	48
SECTION 7.05.	Notice of Defaults	49
SECTION 7.06.	Reports by Trustee to Holders of the Notes	49
SECTION 7.07.	Compensation and Indemnity	49
SECTION 7.08.	Replacement of Trustee	50
SECTION 7.09.	Successor Trustee by Merger, Etc.	51
SECTION 7.10.	Eligibility; Disqualification	51
SECTION 7.11.	Preferential Collection of Claims Against Issuers	51
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01.	Termination of the Issuers’ Obligations	52
SECTION 8.02.	Option To Effect Legal Defeasance or Covenant Defeasance	52
SECTION 8.03.	Legal Defeasance and Covenant Discharge	53
SECTION 8.04.	Covenant Defeasance	53
SECTION 8.05.	Conditions to Legal or Covenant Defeasance	54
SECTION 8.06.	Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions	55
SECTION 8.07.	Repayment to Issuers	56
SECTION 8.08.	Reinstatement	56
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01.	Without Consent of Holders of Notes	56
SECTION 9.02.	With Consent of Holders of Notes	57
SECTION 9.03.	Compliance with Trust Indenture Act	58
SECTION 9.04.	Revocation and Effect of Consents	58
SECTION 9.05.	Notation on or Exchange of Notes	59
SECTION 9.06.	Trustee To Sign Amendments, Etc.	59
ARTICLE 10
GUARANTEES
SECTION 10.01.	Guarantee	59
SECTION 10.02.	Execution and Delivery of Guarantees	61
SECTION 10.03.	Releases from Guarantees	61
ARTICLE 11
MISCELLANEOUS
SECTION 11.01.	Trust Indenture Act Controls	63

 

iii

 

		Page
SECTION 11.02.	Notices	63
SECTION 11.03.	Communication by Holders of Notes with Other Holders of Notes	64
SECTION 11.04.	Certificate and Opinion as to Conditions Precedent	64
SECTION 11.05.	Statements Required in Certificate or Opinion	65
SECTION 11.06.	Rules by Trustee and Agents	65
SECTION 11.07.	No Personal Liability of Directors, Owners, Employees, Incorporators and Stockholders	65
SECTION 11.08.	Governing Law	65
SECTION 11.09.	No Adverse Interpretation of Other Agreements	66
SECTION 11.10.	Successors	66
SECTION 11.11.	Severability	66
SECTION 11.12.	Counterpart Originals	66
SECTION 11.13.	Table of Contents, Headings, Etc.	66
SECTION 11.14.	Force Majeure	66
SECTION 11.15.	Waiver of Jury Trial	66
EXHIBITS
EXHIBIT A-1	FORM OF 4.750% SENIOR NOTES DUE 2014
EXHIBIT A-2	FORM OF 5.875% SENIOR NOTES DUE 2019
EXHIBIT B	FORM OF GUARANTEE
EXHIBIT C-1	FORM OF CERTIFICATE OF TRANSFER - 4.750% SENIOR NOTES DUE 2014
EXHIBIT C-2	FORM OF CERTIFICATE OF TRANSFER - 5.875% SENIOR NOTES DUE 2019
EXHIBIT D-1	FORM OF CERTIFICATE OF EXCHANGE - 4.750% SENIOR NOTES DUE 2014
EXHIBIT D-2	FORM OF CERTIFICATE OF EXCHANGE - 5.875% SENIOR NOTES DUE 2019

 

iv

 

INDENTURE dated as of September 22, 2009 by and among DIRECTV Holdings LLC (the “ Company ” or an “ Issuer ”), a Delaware limited liability company, DIRECTV Financing Co., Inc. (“ DIRECTV Financing ” or an “ Issuer ” and together with the Company, the “ Issuers ”), a Delaware corporation, the Guarantors (as hereinafter defined) and The Bank of New York Mellon Trust Corporation, N.A., a national banking association, as trustee (the “ Trustee ”).

 

The Issuers, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Issuers’ 4.750% Senior Notes due 2014 and the Issuers’ 5.875% Senior Notes due 2019.

 

RECITALS

 

The Issuers and the Guarantors have duly authorized the execution and delivery hereof to provide for the issuance of the Notes and the Guarantees.

 

All things necessary (i) to make the Notes, when executed by the Issuers and authenticated and delivered hereunder and duly issued by the Issuers and delivered hereunder, the valid obligations of the Issuers, (ii) to make the Guarantees when executed by the Guarantors and delivered hereunder the valid obligations of the Guarantors, and (iii) to make this Indenture a valid and legally binding agreement of the Issuers and the Guarantors, all in accordance with their respective terms, have been done.

 

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed as follows for the equal and ratable benefit of the Holders of the Notes.

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.01.               Definitions.

 

“ 144A Global Note ” means a global note substantially in the form of Exhibit A-1 (in the case of the 2014 Notes) hereto or Exhibit A-2 (in the case of the 2019 Notes) hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

 

“ 2013 Notes ” means $910 million of 8  3 / 8 % Senior Notes due 2013 outstanding on the Issue Date issued by the Company and DIRECTV Financing under an indenture dated as of February 28, 2003.

 

“ 2014 Notes ” means the Initial 2014 Notes, the Exchange Notes issued in exchange for the Initial 2014 Notes and any other Notes designated as the 2014 Notes and issued after the Issue Date in accordance with the fourth paragraph of Section 2.02 hereof, treated as a single class of securities.

 

 

“ 2015 Notes ” means $1,000 million of 6  3 / 8 % Senior Notes due 2015 issued by the Company and DIRECTV Financing under an indenture dated as of June 15, 2005.

 

“ 2016 Notes ” means $1,500 million of 7  5 / 8 % Senior Notes due 2016 issued by the Company and DIRECTV Financing under an indenture dated as of May 14, 2008.

 

“ 2019 Notes ” means the Initial 2019 Notes, the Exchange Notes issued in exchange for the Initial 2019 Notes and any other Notes designated as the same 2019 Notes and issued after the Issue Date in accordance with the fourth paragraph of Section 2.02 hereof, treated as a single class of securities.

 

“ Acquired Debt ” means, with respect to any specified Person, Indebtedness of any other Person existing at the time such other Person merges with or into or becomes a Subsidiary of such specified Person, or Indebtedness incurred by such Person in connection with the acquisition of assets, in each case so long as such Indebtedness was not incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Subsidiary of such specified Person or the acquisition of such assets, as the case may be.

 

“ 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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided , however , that no individual, other than a director of Parent or the Company or their respective Subsidiaries or an officer of Parent or the Company or their respective Subsidiaries with a policy making function, shall be deemed an Affiliate of the Company or any of its Subsidiaries solely by reason of such individual’s employment, position or responsibilities by or with respect to Parent, the Company or any of their respective Subsidiaries.

 

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

 

“ 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 that apply to such transfer or exchange.

 

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

 

“ Board of Directors ” means (a) with respect to any Person that is a corporation, the board of directors of such Person or any duly authorized committee thereof and (b) as to any other Person, the functionally comparable body of such Person or any duly authorized committee thereof.

 

“ Broker-Dealer ” means any broker or dealer registered under the Exchange Act.

 

“ Business Day ” means any day other than a Legal Holiday.

 

2

 

“ Capital Lease Obligations ” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at the time any determination thereof is to be made shall be the amount of the liability in respect of a capital lease that would at such time be so required to be capitalized on a balance sheet in accordance with GAAP.

 

“ Capital Stock ” means any and all shares, interests, participations, rights or other equivalents, however designated, of corporate stock or partnership or membership interests, whether common or preferred.

 

“ Change of Control ” means the occurrence of any one of the following:

 

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

 

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

 

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

 

“ Change of Control Triggering Event ” means the occurrence of both a Change of Control and a Ratings Decline.

 

“ Commission ” means the Securities and Exchange Commission.

 

“ Communications Act ” means the Communications Act of 1934, as amended.

 

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

 

“ Comparable Treasury Price ” means, with respect to any redemption date for any Note:  (1) the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of four such Reference Treasury Dealer Quotations; or (2) if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the average of all quotations obtained by the Trustee.

 

“ Consolidated Net Tangible Assets ” of any Person means, for any period, the total amount of assets (less applicable reserves and other properly deductible items) after deducting (1) all current liabilities and (2) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other intangibles, all as set forth on the Company’s most recent consolidated balance sheet and computed in accordance with GAAP.

 

3

 

“ Continuing Director ” means, as of any date of determination, any member of the Company’s Board of Directors who:

 

(1)             was a member of such Board of Directors on the date hereof; or

 

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

 

“ Corporate Trust Office of the Trustee ” means the principal office of the Trustee at which any time its corporate trust business shall be administered, which office at the date hereof is located at 700 South Flower Street, Suite 500, Los Angeles, CA 90017, Attention:  Corporate Unit, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

“ 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.

 

“ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A-1 (in the case of a 2014 Note) hereto or Exhibit A-2 (in the case of a 2019 Note) hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

“ Depositary ” means The Depository Trust Company and any and all successors thereto appointed as depositary hereunder and having become such pursuant to an applicable provision hereof.

 

“ DIRECTV Group ” means The DIRECTV Group, Inc., a Delaware corporation, and its successors.

 

“ Domestic Subsidiaries ” shall mean all Subsidiaries incorporated, formed or organized under the laws of the United States of America, any State thereof or the District of Columbia.

 

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

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

 

“ Exchange Notes ” means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof or pursuant to a registered exchange offer for Notes with a Private Placement Legend issued after the Issue Date.

 

4

 

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

 

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

 

“ Existing Notes ” means the 2013 Notes, the 2015 Notes and the 2016 Notes.

 

“ Existing Satellites ” means the following satellites:  DIRECTV 1R, DIRECTV 4S, DIRECTV 5, DIRECTV 7S, DIRECTV 8, DIRECTV 9S, DIRECTV 10, DIRECTV 11, DIRECTV 12, Spaceway 1 and Spaceway 2.

 

“ FCC ” means the Federal Communications Commission.

 

“ Fitch ” means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.

 

“ Foreign Currency Obligations ” means, with respect to any Person, the obligations of such Person pursuant to any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any Subsidiary of the Company against fluctuations in currency values.

 

“ GAAP ” means United States generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are applicable as of the date of determination; provided that, except as otherwise specifically provided, all calculations made for purposes of determining compliance with the terms of the provisions hereof shall utilize GAAP as in effect on the Issue Date.

 

“ Global Note Legend ” means the legend set forth in Section 2.01 hereof, which is required to be placed on all Global Notes issued under this Indenture.

 

“ Global Notes ” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A-1 (in the case of a 2014 Note) hereto or Exhibit A-2 (in the case of a 2019 Note) hereto issued in accordance with Section 2.01 or 2.06 hereof.

 

“ 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, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness.

 

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

 

“ Guarantor ” means any Subsidiary of the Company that guarantees the Notes and its successors and assigns.

 

5

 

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

 

“ Holder ” means a Person in whose name a Note is registered.

 

“ incur ” means, collectively, either directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness (including Acquired Debt).

 

“ Indebtedness ” means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or representing the balance deferred and unpaid of the purchase price of any property (including pursuant to capital leases) or representing any Hedging Obligations or Foreign Currency Obligations, except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing (other than Hedging Obligations or Foreign Currency Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, and also includes the guarantee of items that would be included within this definition.

 

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

 

“ Independent Investment Banker ” means one of the Reference Treasury Dealers, to be appointed by the Company.

 

“ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

“ Initial 2014 Notes ” means the $1.0 billion in aggregate principal amount of the Issuers’ 4.750% Senior Notes due 2014 issued under this Indenture on the Issue Date.

 

“ Initial 2019 Notes ” means the $1.0 billion in aggregate principal amount of the Issuers’ 5.875% Senior Notes due 2019 issued under this Indenture on the Issue Date.

 

“ Initial Notes ” means, collectively, the Initial 2014 Notes and the Initial 2019 Notes.

 

“ Initial Purchasers ” means, with respect to the Initial Notes, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities Inc., Barclays Capital Inc., Mizuho Securities USA Inc. and UBS Securities LLC.

 

“ 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); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch).  In the event that the Company shall select any other Rating Agency, the equivalent of such ratings by such Rating Agency shall be used.

 

6

 

“ Issue Date ” means September 22, 2009, the date of original issuance of the Initial Notes.

 

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

 

“ Liberty Entertainment Merger ” means the mergers contemplated by the Agreement and Plan of Merger dated May 3, 2009, as amended, by and among The DIRECTV Group, Inc., DIRECTV, Liberty Media Corporation, Liberty Entertainment, Inc.  and several wholly-owned Subsidiaries of DIRECTV.

 

“ Letter of Transmittal ” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statute) of any jurisdiction).

 

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

 

“ Non-U.S. Person ” means a Person who is not a U.S. Person.

 

“ Notes ” means, collectively, the 2014 Notes and the 2019 Notes.

 

“ Offering Memorandum ” means the Offering Memorandum, dated September 14, 2009, relating to and used in connection with the initial offering of the Initial Notes.

 

“ Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, Controller, Secretary or any Vice President of such Person, or any other officer designated by the Board of Directors serving in a similar capacity.

 

“ Officers’ Certificate ” means a certificate signed on behalf of the Company or DIRECTV Financing, as the case may be, by two Officers of such Person or of such Person’s partner or managing member, one of whom must be the principal executive officer, principal financial officer, treasurer or principal accounting officer of such Person or of such Person’s partner or managing member.

 

“ Opinion of Counsel ” means an opinion from legal counsel, who may be an employee of or counsel to the Company or any Subsidiary of the Company.

 

7

 

“ Parent ” means DIRECTV Group and prior to the completion of the Liberty Entertainment Merger, shall mean Liberty Media Corporation, a Delaware corporation, and, after completion of the Liberty Entertainment Merger, shall mean DIRECTV, a Delaware corporation, and their respective successors, in each case together with each Subsidiary of Parent that beneficially owns any Equity Interests of the Company.

 

“ Parent Company ” means each of (a) Parent and (b) any direct or indirect Subsidiary of Parent that owns any of the Company’s Capital Stock.

 

“ Participant ” means, with respect to the Depositary, a Person who has an account with the Depositary.

 

“ Permitted Liens ” means:

 

(a)           Liens securing the Notes and Liens securing any Guarantee;

 

(b)           Liens securing Purchase Money Indebtedness; provided that such Liens do not extend to any assets of the Company or the Company’s Subsidiaries other than the assets so acquired;

 

(c)           Liens to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of instruction or improvement of property, plant or equipment or the purchase price or construction, improvement or launch of satellites (other than Existing Satellites) for use in the business of the Company or any Subsidiary of the Company; provided that such Liens do not apply to any assets other than the property acquired, constructed or improved or the satellite constructed, improved or launched (and in the case of any such satellite, other than any Existing Satellite, the related orbital slots, licenses and other related assets);

 

(d)           Liens on property of a Person existing at the time such Person is merged into or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were not incurred in connection with, or in contemplation of, such merger or consolidation, other than in the ordinary course of business;

 

(e)           Liens on property of a Subsidiary of the Company at the time that it becomes a Subsidiary of the Company; provided that such Liens were not incurred in connection with, or contemplation of, such Subsidiary becoming a Subsidiary of the Company;

 

(f)            Liens on property existing at the time of acquisition thereof by the Company or any Subsidiary of the Company; provided that such Liens were not incurred in connection with, or in contemplation of, such acquisition and do not extend to any assets of the Company or Subsidiary of the Company other than the property so acquired;

 

(g)           Liens to secure the performance of statutory obligations, surety or appeal bonds or performance bonds, or landlords’, carriers’, warehousemen’s, mechanics’, suppliers’, materialmen’s or other like Liens, in any case incurred in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate process of law, if a reserve or other appropriate provision, if any, as is required by GAAP shall have been made therefor;

 

8

 

(h)           Liens existing on the Issue Date securing Indebtedness existing on the Issue Date or incurred pursuant to commitments outstanding on the Issue Date;

 

(i)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;

 

(j)            any interest or title of a lessor under any Capital Lease Obligations;

 

(k)           Liens (other than Liens created or imposed under ERISA) incurred or deposits made by the Company or any of its Subsidiaries in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);

 

(l)            easements, rights-of-way, covenants, restrictions (including zoning restrictions), minor defects or irregularities in title and other similar charges or encumbrances not, in any material respect, impairing the use of the encumbered property for its intended purposes;

 

(m)          normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;

 

(n)           Liens not provided for in clauses (a) through (m) above securing Indebtedness incurred in compliance with the terms hereof so long as the Notes are secured by the assets subject to such Liens on an equal and ratable basis or on a basis prior to such Liens; provided that to the extent that such Lien secured Indebtedness that is subordinated to the Notes, such Lien shall be subordinated to and be later in priority than the Notes on the same basis;

 

(o)           extensions, renewals or refundings of any Liens referred to in clauses (a) through (n) above; provided that any such extension, renewal or refunding does not extend to any assets or secure any Indebtedness not securing or secured by the Liens being extended, renewed or refinanced; and

 

(p)           other Liens arising in connection with the Company’s and its Subsidiaries’ Indebtedness, in an aggregate principal amount for the Company and its Subsidiaries together with the amount of Attributable Indebtedness incurred in connection with Sale and Leaseback Transactions, not exceeding at the time such Lien is issued, created or assumed 15% of the Company’s Consolidated Net Tangible Assets.

 

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“ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust or unincorporated organization (including any subdivision or ongoing business of any such entity or substantially all of the assets of any such entity, subdivision or business).

 

“ Private Placement Legend ” means the legend set forth in Section 2.01 hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions hereof.

 

“ Purchase Money Indebtedness ” means (i) Indebtedness incurred (within 365 days of such purchase) to finance the purchase of any assets (including the purchase of Equity Interests of Persons that are not Affiliates of the Company or the Guarantors):  (a) to the extent the amount of Indebtedness thereunder does not exceed 100% of the purchase cost of such assets; and (b) so long as such Indebtedness is without recourse to the Company or any of its Subsidiaries or any of their respective assets, other than to the assets so purchased; or (ii) Indebtedness which refinances Indebtedness referred to in clause (i) of this definition; provided that such refinancing satisfies subclauses (a) and (b) of such clause (i).

 

“ 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 and Fitch ceases to provide rating services to issuers or investors, the Company may appoint a replacement for such Rating Agency that is reasonably acceptable to the Trustee.

 

“ Ratings Decline ” means with respect to a Series of Notes within 60 days after the earlier of, (i) the occurrence of a Change of Control or (ii) public notice of the occurrence of a Change of Control or the intention by the Company or any Parent Company to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) (the “ Trigger Period ”), the rating of such Series of Notes shall be reduced by at least two Rating Agencies and the Notes of such Series shall be rated below Investment Grade by each of the Rating Agencies.  Unless at least two of the three Rating Agencies are providing a rating for the Notes of such series at the commencement of any Trigger Period, the Notes will be deemed to have had a Ratings Decline to below Investment Grade by at least two of the three Rating Agencies during that Trigger Period.

 

“ Reference Treasury Dealer ” means four primary U.S. Government securities dealers to be selected by the Company.

 

“ Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date for any Note, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:00 p.m., New York City time, on the third Business Day preceding such redemption date.

 

“ Registration Rights Agreement ” means the Registration Rights Agreement for the Initial Notes, dated as of September 22, 2009, by and among the Issuers, the Guarantors and the Initial Purchasers, as such agreement may be amended, modified or supplemented from time to time.

 

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

 

“ Regulation S Global Note ” means a Global Note of a Series bearing the Private Placement Legend and deposited with or on behalf of the Depositary and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes of such Series issued on a single date and initially sold in reliance on Rule 903 of Regulation S.

 

“ Responsible Officer, ” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“ Restricted Definitive Note ” means a Definitive Note bearing the Private Placement Legend.

 

“ Restricted Global Note ” means a Global Note bearing the Private Placement Legend.

 

“ Restricted Period ” means the 40-day distribution compliance period as defined in Regulation S.

 

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

 

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

 

“ Rule 903 ” means Rule 903 promulgated under the Securities Act.

 

“ Rule 904 ” means Rule 904 promulgated under the Securities Act.

 

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

 

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

 

“ Senior Secured Credit Facility ” means any credit agreement to which the Company and/or one or more of its Domestic Subsidiaries is party from time to time including without limitation the credit agreement dated as of April 13, 2005 by and among the Company, as borrower, the lenders party thereto from time to time, Bank of America N.A., as administrative agent, and JPMorgan Chase Bank, N.A., as syndication agent, together with the related documents thereto (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring, whether in the bank or debt capital markets (or combination thereof) (including increasing the amount of available borrowings thereunder or adding Subsidiaries as additional

 

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borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders.

 

“ Series ” refers to all 2014 Notes or all 2019 Notes, as applicable.

 

“ Shelf Registration Statement ” means the Shelf Registration Statement as defined in the Registration Rights Agreement.

 

“ Significant Subsidiary ” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.

 

“ Subsidiary ” or “ Subsidiaries ” means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof.

 

“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date hereof.

 

“ Treasury Rate ” means, at the time of computation, (1) the semi-annual equivalent yield to maturity of the United States Treasury Securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) which has become publicly available at least two Business Days prior to the redemption date or, if such Statistical Release is no longer published, any publicly available source of similar market data) for the maturity corresponding to the Comparable Treasury Issue; provided , however , that if no maturity is within three months before or after the maturity date for the applicable Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if that release, or any successor release, is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using 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.  The Treasury Rate will be calculated on the third Business Day preceding the redemption date.

 

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

 

“Unrestricted Definitive Note ” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.

 

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“ Unrestricted Global Note ” means a permanent Global Note substantially in the form of Exhibit A-1 (in the case of a 2014 Note) hereto and Exhibit A-2 (in the case of a 2019 Note) hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.

 

“ U.S. Person ” means a U.S. Person as defined in Rule 902(k) under the Securities Act.

 

“ Voting Stock ” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock or other relevant equity interest has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person.

 

“ Wholly Owned Subsidiary ” means, with respect to any Person, any Subsidiary all of the outstanding voting stock (other than directors’ qualifying shares) of which is owned by such Person, directly or indirectly.

 

SECTION 1.02.                                          Other Definitions.

 

Term		Defined in Section
“Attributable Debt”		4.11
“Change of Control Offer”		4.10
“Change of Control Payment”		4.10
“Change of Control Payment Date”		4.10
“Company”		Preamble
“Covenant Defeasance”		8.04
“DTC”		2.01(b)
“Event of Default”		6.01
“Global Note Legend		2.01(b)
“Issuers”		Preamble
“Legal Defeasance”		8.03
“Paying Agent”		2.03
“Payment Default”		6.01(e)
“Private Placement Legend”		2.01(c)
“Registrar”		2.03
“Sale and Leaseback Transaction”		4.11

 

SECTION 1.03.                                          Incorporation by Reference of Trust Indenture Act.

 

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

 

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

 

“ indenture securities ” means the Notes;

 

“ indenture security holder ” means a Holder of a Note;

 

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“ indenture to be qualified ” means this Indenture;

 

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

 

“ obligor ” on the Notes means each of the Issuers and any successor obligor upon the Notes.

 

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

 

SECTION 1.04.                                          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)          words in the singular include the plural, and in the plural include the singular; and

 

(5)          provisions apply to successive events and transactions.

 

SECTION 1.05.                                          Acts of Holders; Record Dates.

 

(a)           Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders shall be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in Person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuers.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose hereof and conclusive in favor of the Trustee and the Issuers, if made in the manner provided in this Section 1.05.

 

(b)           The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such Person the execution thereof.  Where such execution is by a signer acting in a capacity other than such Person’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

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(c)           The Issuers may, in the circumstances permitted by the TIA, fix any date as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or take by Holders.  If not set by the Issuers prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 2.05 hereof) prior to such first solicitation or vote, as the case may be.  With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.

 

ARTICLE 2

 

THE NOTES

 

SECTION 2.01.                                                                  Form and Dating.

 

(a)           The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A-1 (in the case of a 2014 Note) hereto and Exhibit A-2 (in the case of a 2019 Note) hereto, the terms of which are incorporated in and made a part hereof.  The Notes may have notations, legends or endorsements approved as to form by the Issuers, and required by law, stock exchange rule, agreements to which the Issuers are subject or usage.  Each Note shall be dated the date of its authentication.  The Notes shall be issuable only in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

(b)           The Notes shall initially be issued in the form of one or more Global Notes and the Depository Trust Company (“ DTC ”), its nominees, and their respective successors, shall act as the Depositary with respect thereto.  Each Global Note shall (i) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions, and (iii) shall bear a legend (the “ Global Note Legend ”) substantially to the following effect:

 

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

 

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

 

(c)           Except as permitted by Section 2.06(g) hereof, any Note not registered under the Securities Act shall bear the following legend (the “ Private Placement Legend ”) on the face thereof:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR, OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(D) UNDER THE SECURITIES ACT, AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO AN ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

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(D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE ISSUERS’ AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

The Trustee must refuse to register any transfer of a Note bearing the Private Placement Legend that would violate the restrictions described in such legend.

 

SECTION 2.02.                                                                  Form of Execution and Authentication.

 

An Officer shall sign the Notes for each Issuer by manual or facsimile signature.

 

If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.

 

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

 

The Trustee shall authenticate (i) Initial Notes for original issue on the Issue Date consisting of (x) $1.0 billion aggregate principal amount of Initial 2014 Notes and (y) $1.0 billion aggregate principal amount of Initial 2019 Notes, (ii) pursuant to the Exchange Offer, Exchange Notes from time to time for issue only in exchange for a like principal amount of Initial Notes of the applicable Series and (iii) additional Notes of either Series for original issue after the Issue Date (such Notes to be substantially in the form of Exhibit A-1 (in the case of 2014 Notes) hereto or Exhibit A-2 (in the case of 2019 Notes) hereto) in an unlimited amount (and if issued with a Private Placement Legend, the same principal amount of Exchange Notes of the applicable Series in exchange therefor upon consummation of a registered exchange offer), in each case upon written orders of the Issuers in the form of an Officers’ Certificate.  Each such Officers’ Certificate shall specify the amount and Series of Notes to be authenticated, the date on which the Notes are to be authenticated, whether the Securities are to be Initial Notes, Exchange Notes or

 

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Notes issued under clause (iii) of the preceding sentence and the aggregate principal amount of Notes of such Series outstanding on the date of authentication, and shall further specify the amount of such Notes to be issued as a Global Note or Definitive Notes.  Such Notes shall initially be in the form of one or more Global Notes, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Notes to be issued, (ii) shall be registered in the name of the Depositary for such Global Note or Notes or its nominee and (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction.  All Notes of a Series issued under this Indenture shall vote and consent together on all matters as one class and no Notes of any Series will have the right to vote or consent as a separate class from any other Notes of such Series on any matter.

 

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

 

SECTION 2.03.                                                                  Registrar and Paying Agent.

 

The Issuers shall maintain (i) an office or agency where Notes may be presented for registration of transfer or for exchange (including any co-registrar, the “ Registrar ”) and (ii) an office or agency where Notes may be presented for payment (“ Paying Agent ”).  The Registrar shall keep a register of the Notes and of their transfer and exchange.  The Issuers may appoint one or more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any additional paying agent.  The Issuers may change any Paying Agent, Registrar or co-registrar without prior notice to any Holder of a Note.  The Issuers shall notify the Trustee in writing and the Trustee shall notify the Holders of the Notes of the name and address of any Agent not a party to this Indenture.  The Issuers may act as Paying Agent, Registrar or co-registrar.  The Issuers shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which shall incorporate the provisions of the TIA.  The agreement shall implement the provisions hereof that relate to such Agent.  The Issuers shall notify the Trustee in writing of the name and address of any such Agent.  If the Issuers fail to maintain a Registrar or Paying Agent, or fail to give the foregoing notice, the Trustee shall act, at the written direction of the Issuers, as such, and shall be entitled to appropriate compensation in accordance with Section 7.07 hereof.

 

The Issuers initially appoint the Trustee as Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes.

 

SECTION 2.04.                                                                  Paying Agent To Hold Money in Trust.

 

The Issuers shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders of the Notes of any Series or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, and interest on the Notes of such Series, and shall notify the Trustee in writing of any Default by the Issuers in making any such payment.  While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than an Issuer) shall have no further liability for the money delivered to the Trustee.  If an Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders of the applicable Series all money held by them as Paying Agent for such Series.

 

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SECTION 2.05.                                                                  Lists of Holders of the Notes.

 

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 of the Notes of each Series and shall otherwise comply with TIA § 312(a).  If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of the Notes of each Series, including the aggregate principal amount of the Notes of such Series held by each thereof, and the Issuers shall otherwise comply with TIA § 312(a).

 

SECTION 2.06.                                                                  Transfer and Exchange.

 

(a)                                   Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  Beneficial interests in Global Notes will be exchanged by the Issuers for Definitive Notes of the same Series, subject to any applicable laws, if (i) requested by a Holder of a beneficial ownership in the Global Notes or (ii) the Issuers deliver to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary and a successor Depositary is not appointed by the Issuers within 90 days after the date of such written notice from the Depositary.  In any such case, the Issuers will notify the Trustee in writing that, upon surrender by the Direct Participants and Indirect Participants of their interest in such Global Note, Certificated Notes of the same Series will be issued to each Person that such Direct Participants and Indirect Participants and DTC identify as being the beneficial owner of the related Notes.  Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.  Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note of the same Series.  A Global Note may not be exchanged for another Note other than as provided in this Section 2.06.  However, beneficial interests in a Global Note may be transferred and exchanged as provided in paragraph (b), (c) or (f) below.

 

(b)                                  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 hereof and the Applicable Procedures.  Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth in this Indenture 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:

 

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(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 Restricted Period, no transfer of beneficial interests in a Regulation S Global Note may be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser) unless permitted by applicable law and made in compliance with subparagraphs (ii) and (iii) below.  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 of the same Series.  No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this subparagraph (i) unless specifically stated above.

 

(ii)                                 All Other Transfers and Exchanges of Beneficial Interests in Global Notes .  In connection with all transfers and exchanges of beneficial interests that are not subject to subparagraph (i) above, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note of the same Series in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or, (B) (1) if Definitive Notes are at such time permitted to be issued pursuant to this Indenture, a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note of the same Series in an amount equal to the beneficial interest to be transferred or exchanged and (2) 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 (1) above.  Upon consummation of an Exchange Offer by the Issuers in accordance with paragraph (f) below, the requirements of this subparagraph (ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal 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 this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to paragraph (h) below.

 

(iii)                              Transfer of Beneficial Interests to Another Restricted Global Note .  A beneficial interest in any Restricted Global Note 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 subparagraph (ii) above and the Registrar receives the following:

 

(A)                               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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (1) thereof; and

 

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(B)                                 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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) 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 of the same Series or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such Series if the exchange or transfer complies with the requirements of subparagraph (ii) above and

 

(A)                             such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement 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 in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an “affiliate” (as defined in Rule 144) of the Issuers;

 

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

 

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

 

(D)                              the Registrar receives the following:

 

(y)           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 D-1 (in the case of a 2014 Note) hereto or Exhibit D-2 (in the case of a 2019 Note) hereto, including the certifications in item (1)(a) thereof, or

 

(z)            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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (4) thereof;

 

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and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Indenture 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 subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) 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.

 

(c)                                   Transfer or Exchange of Beneficial Interests for Definitive Notes.

 

(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:

 

(A)                               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 D-1 (in the case of a 2014 Note) hereto or Exhibit D-2 (in the case of a 2019 Note) hereto, including the certifications in item (2)(a) thereof;

 

(B)                                 if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (1) thereof;

 

(C)                                 if such beneficial interest is being transferred to a Non-U.S. 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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (2) thereof;

 

(D)                                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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (3)(a) thereof;

 

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(E)                                  if such beneficial interest is being transferred to the Issuers or any of their Subsidiaries, a certificate to the effect set forth in Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (3)(b) thereof; or

 

(F)                                  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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to paragraph (h) below, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Restricted Definitive Note of the same Series in the appropriate principal amount.  Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this paragraph (c) 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 subparagraph (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 of the same Series or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note of such Series only if

 

(A)                               such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the Registration Rights Agreement and the Holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an “affiliate” (as defined in Rule 144) of the Issuers;

 

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

 

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

 

(D)                                the Registrar receives the following:

 

(y)        if the Holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note that does not bear the Private Placement Legend, a certificate from such Holder in the form of Exhibit D-1 (in the case of a 2014 Note) hereto or Exhibit D-2 (in the case of a 2019 Note) hereto, including the certifications in item (1)(b) thereof; or

 

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(z)         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 Definitive Note that does not bear the Private Placement Legend, a certificate from such Holder in the form of Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (4) thereof,

 

and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Indenture 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 subparagraph (B) or (D) above at a time when an Unrestricted Global Note of the applicable Series has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes of such Series in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.

 

(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 a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in subparagraph (b)(ii) above, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to paragraph (h) below, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note of such Series in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this subparagraph (c)(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 the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this subparagraph (c)(iii) shall not bear the Private Placement Legend.

 

(d)                                  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 Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

 

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(A)                               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 D-1 (in the case of a 2014 Note) hereto or Exhibit D-2 (in the case of a 2019 Note) hereto, including the certifications in item (2)(b) thereof;

 

(B)                                 if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (1) thereof; or

 

(C)                                 if such Restricted Definitive Note is being transferred to a Non-U.S. 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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (2) thereof,

 

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note of such Series, in the case of clause (B) above, the 144A Global Note of such Series, and in the case of clause (C) above, the Regulation S Global Note of such Series.

 

(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 of such Series 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 of such Series only if

 

(A)                               such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an “affiliate” (as defined in Rule 144) of the Issuers;

 

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

 

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

 

(D)                                the Registrar receives the following:

 

(y)                                  if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit D-1 (in the case of a 2014 Note) hereto or Exhibit D-2 (in the case of a 2019 Note) hereto, including the certifications in item (1)(c) thereof; or

 

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(z)                                    if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note of such Series, a certificate from such Holder in the form of Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Indenture and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of any of the subparagraphs in this subparagraph (d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note of such Series.

 

(iii)                                Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.   A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note of such Series or transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such Series at any time.  Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes of such Series.

 

If any such exchange or transfer from an Unrestricted Definitive Note or a Restricted Definitive Note, as the case may be, to a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes of the applicable Series in an aggregate principal amount equal to the principal amount of Unrestricted Definitive Notes or Restricted Definitive Notes, as the case may be, so transferred.

 

(e)                                   Transfer and Exchange of Definitive Notes for Definitive Notes .  Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this paragraph (e), the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing.  In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this paragraph (e).

 

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(i)                                      Restricted Definitive Notes to Restricted Definitive Notes .  Any Restricted Definitive Note may be transferred to and registered in the name of a Person who takes delivery thereof in the form of a Restricted Definitive Note of such Series if the Registrar receives the following:

 

(A)                               if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (1) thereof;

 

(B)                                 if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (2) thereof; and

 

(C)                                 if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit C-1 (in the case of a due 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including, if the Registrar so requests, a certification or Opinion of Counsel in form reasonably acceptable to the Issuers to the effect that such transfer is in compliance with the Securities Act.

 

(ii)                                   Restricted Definitive Notes to Unrestricted Definitive Notes .  Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note of such Series or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note of such Series if

 

(A)                               such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an “affiliate” (as defined in Rule 144) of the Issuers;

 

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

 

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

 

(D)                                the Registrar receives the following:

 

(y)                                  if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit D-1 (in the case of a 2014 Note) hereto or Exhibit D-2 (in the case of a 2019 Note) hereto, including the certifications in item (1)(d) thereof; or

 

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(z)                                    if the Holder of such Restricted Definitive Notes proposes to transfer such Notes 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 C-1 (in the case of a 2014 Note) hereto or Exhibit C-2 (in the case of a 2019 Note) hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Issuers to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained in this Indenture and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(iii)                                Unrestricted Definitive Notes to Unrestricted Definitive Notes .  A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note of such Series.  Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

 

(f)                                     Exchange Offer .  Upon the occurrence of an Exchange Offer for any Series of Notes in accordance with the Registration Rights Agreement, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) one or more Unrestricted Global Notes of such Series in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes of such Series tendered for acceptance by Persons that make the certifications in the applicable Letters of Transmittal required by Section 2(a) of the Registration Rights Agreement, and accepted for exchange in an Exchange Offer and (ii) Definitive Notes of such Series in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes of such Series accepted for exchange in an Exchange Offer.  Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes of such Series to be reduced accordingly, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of Restricted Definitive Notes so accepted Unrestricted Definitive Notes of such Series in the appropriate principal amount.

 

(g)                                  Legends .  The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions hereof.

 

(i)                                      Private Placement Legend .

 

(A)                               Except as permitted by subparagraph (B) below, each Global Note (other than an Unrestricted Global Note) and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the Private Placement Legend.

 

(B)                                 Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

 

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(ii)                                   Global Note Legend .  Each Global Note shall bear the Global Note Legend.

 

(h)                                  Cancellation and/or Adjustment of Global Notes .  At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

(i)                                      General Provisions Relating to Transfers and Exchanges .

 

(i)                                      To permit registrations of transfers and exchanges, the Issuers shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon the Issuers’ order or at the Registrar’s request.

 

(ii)                                   No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note 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 taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06 and 9.05 hereof).

 

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

 

(iv)                               All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits hereof, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

 

(v)                                  The Issuers shall not be required (A) to issue, to register the transfer of or to exchange any Notes of a Series during a period beginning at the opening of business on a Business Day 15 days before the day of any selection of Notes of such Series for redemption under Section 3.02 hereof and ending at the close of business on the day of selection or (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

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(vi)                               Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers 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, any Agent or the Issuers shall be affected by notice to the contrary.

 

(vii)                            The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.

 

(viii)                         All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

 

SECTION 2.07.                                          Replacement Notes.

 

If any mutilated Note is surrendered to the Trustee, or the Issuers and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, the Issuers shall issue and the Trustee, upon the written order of the Issuers signed by two Officers of each Issuer, shall authenticate a replacement Note of such Series if the Trustee’s requirements for replacements of Notes are met.  If required by the Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent or any authenticating agent from any loss which any of them may suffer if a Note is replaced.  The Issuers and the Trustee may charge for its expenses in replacing a Note.

 

Every replacement Note is a joint and several obligation of the Issuers.

 

SECTION 2.08.                                          Outstanding Notes.

 

The Notes outstanding at any time of any Series are all the Notes of such Series authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding.

 

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

 

If the principal amount of any Note is considered paid under Section 4.01 hereof, it shall cease to be outstanding and interest on it shall cease to accrue.

 

Subject to Section 2.09 hereof, a Note does not cease to be outstanding because the Issuers, a Subsidiary of the Issuers or an Affiliate of the Issuers holds the Note.

 

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SECTION 2.09.                                          Treasury Notes.

 

In determining whether the Holders of the required principal amount of Notes of any Series have concurred in any direction, waiver or consent, Notes owned by the Issuers, any Subsidiary of the Issuers or any Affiliate of the Issuers shall be considered as though not outstanding, except that for purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Responsible Officer knows to be so owned shall be so considered.  Notwithstanding the foregoing, Notes that are to be acquired by the Issuers, any Subsidiary of the Issuers or an Affiliate of the Issuers pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by the Issuers, a Subsidiary of the Issuers or an Affiliate of the Issuers until legal title to such Notes passes to the Issuers, such Subsidiary or such Affiliate, as the case may be.

 

SECTION 2.10.                                          Temporary Notes.

 

Until definitive Notes are ready for delivery, the Issuers may prepare and the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuers and the Trustee consider appropriate for temporary Notes.  Without unreasonable delay, the Issuers shall prepare and the Trustee, upon receipt of the written order of the Issuers signed by two Officers of the Issuers, shall authenticate definitive Notes of a Series in exchange for temporary Notes of such Series.  Until such exchange, temporary Notes of a Series shall be entitled to the same rights, benefits and privileges as definitive Notes of such Series.

 

SECTION 2.11.                                          Cancellation.

 

The Issuers at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of all canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act), unless the Issuers direct canceled Notes to be returned to them.  The Issuers may not issue new Notes to replace Notes that they have redeemed or paid or that have been delivered to the Trustee for cancellation.  All canceled Notes held by the Trustee shall be disposed of and certification of their disposal delivered to the Issuers upon their request therefor, unless by a written order, signed by two Officers of the Issuers, the Issuers shall direct that canceled Notes be returned to them.

 

SECTION 2.12.                                          Defaulted Interest.

 

If the Issuers default in a payment of interest on the Notes of a Series, they shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders of such Series of Notes on a subsequent special record date, which date shall be at the earliest practicable date but in all events at least five Business Days prior to the payment date, in each case at the rate provided in the Notes of such Series.  The Issuers shall, with the consent of the Trustee, fix or cause to be fixed each such special record date and payment date.  At least 15 days before the special record date, the Issuers (or the

 

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Trustee, in the name of and at the expense of the Issuers) shall mail to Holders of the Notes of the applicable Series a notice that states the special record date, the related payment date and the amount of such interest to be paid.

 

SECTION 2.13.                                          Record Date.

 

The record date for purposes of determining the identity of Holders of the Notes entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture shall be determined as provided for in TIA § 316(c).

 

SECTION 2.14.                                          CUSIP Number.

 

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

 

SECTION 2.15.                                          Joint and Several Liability.

 

Except as otherwise expressly provided herein, the Issuers shall be jointly and severally liable for the performance of all obligations and covenants under this Indenture and the Notes.

 

ARTICLE 3

 

REDEMPTION

 

SECTION 3.01.                                          Notices to Trustee.

 

If the Issuers elect to redeem Notes of a Series pursuant to the optional redemption provisions of Section 3.07 hereof, they shall furnish to the Trustee, at least 35 days (unless a shorter period is acceptable to the Trustee) but not more than 60 days before a redemption date, an Officers’ Certificate of the Issuers identifying the Series of Notes to be redeemed and setting forth (i) the redemption date, (ii) the principal amount of Notes to be redeemed and (iii) the redemption price.

 

SECTION 3.02.                                          Selection of Notes To Be Redeemed.

 

(a)                                   If less than all of the Notes of any Series are to be redeemed at any time in accordance with Section 3.07 hereof, the selection of Notes of such Series for redemption shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes of such Series are listed, or if the Notes of such Series are not so listed on a pro rata basis, by lot or in accordance with any other method the Trustee deems fair and appropriate; provided that no Notes with a principal amount of $2,000 or less shall be redeemed in part.  In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption.

 

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(b)                                  The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed.  Notes and portions of them selected shall be in amounts of $2,000 or whole multiples of $1,000; except that if all of the Notes of a Series of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.  Except as provided in the preceding sentence, provisions hereof that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

SECTION 3.03.                                          Notice of Redemption.

 

At least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address.

 

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

 

(i)                                      the redemption date;

 

(ii)                                   the redemption price;

 

(iii)                                if any Note is being redeemed in part only, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes of such Series in principal amount equal to the unredeemed portion shall be issued in the name of the Holder thereof upon cancellation of the original Note;

 

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

 

(v)                                  that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(vi)                               that, unless the Issuers default in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

(vii)                            the paragraph of the Notes and/or Section hereof pursuant to which the Notes called for redemption are being redeemed; and

 

(viii)                         that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on such Notes.

 

At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided that the Company shall have delivered to the Trustee, at least 35 days (unless a shorter period is acceptable to the Trustee) prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

 

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SECTION 3.04.                                          Effect of Notice of Redemption.

 

Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become due and payable on the redemption date at the redemption price.

 

SECTION 3.05.                                          Deposit of Redemption Price.

 

On or prior to any redemption date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on that date.  The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed.

 

On and after the redemption date, if the Company does not default in the payment of the redemption price, interest shall cease to accrue on the Notes or the portions of Notes called for redemption.  If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date.  If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in such Notes.

 

SECTION 3.06.                                          Notes Redeemed in Part.

 

Upon surrender and cancellation of a Note that is redeemed in part, the Issuers shall issue and the Trustee shall authenticate for the Holder of such Note at the expense of the Issuers a new Note of such Series equal in principal amount to the unredeemed portion of the Note surrendered.

 

SECTION 3.07.                                          Optional Redemption.

 

At any time and from time to time the Company may redeem all or any portion of the Notes of any Series outstanding at a redemption price equal to the greater of:

 

(a)                                   100% of the aggregate principal amount of such Notes to be redeemed, and

 

(b)                                  an amount equal to the sum of the present values of the remaining scheduled payments of principal of and interest on such Notes to be redeemed (excluding accrued and unpaid interest to the redemption date and subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) discounted from their scheduled date of payment to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 40 basis points, plus, in each of the above cases, accrued and unpaid interest, if any, to such redemption date.

 

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ARTICLE 4

 

COVENANTS

 

SECTION 4.01.                                          Payment of Notes.

 

(a)                                   The Issuers shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than either Issuer, holds as of 10:00 a.m. Eastern Time on the due date money deposited by or on behalf of the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.

 

(b)                                  The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the applicable Series of Notes to the extent lawful; they shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

 

SECTION 4.02.                                          Maintenance of Office or Agency.

 

(a)                                   The Issuers shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be served.  The Issuers shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the 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.

 

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

 

(c)                                   The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or agency of the Issuers in accordance with Section 2.03 hereof.

 

SECTION 4.03.                                          Reports.

 

(a)                                   Whether or not required by the rules and regulations of the Commission, so long as any Notes of a Series are outstanding, the Issuers shall furnish to the Holders of Notes of such

 

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Series all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Issuers were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report thereon by the certified public accountants of the Issuers; provided , however , that to the extent such reports are filed with the Commission and publicly available, no additional copies need be provided to Holders of the Notes or the Trustee.  The Issuers shall also comply with the provisions of TIA §314(a).

 

(b)                                  The Issuers shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the Trustee may be required to deliver to the Holders of the Notes under this Section 4.03.

 

(c)                                   The Issuers will be deemed to have satisfied the requirements of paragraph (a) and (b) above if (i) any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, (ii) such Parent does not have any material assets or liabilities other than direct or indirect interests in the Issuers, and (iii) the Issuers are not required to file such reports, documents and information separately under the applicable rules and regulations of the Commission (after giving effect to any exemptive relief) because of the filings by such Parent.

 

SECTION 4.04.                                          Compliance Certificate.

 

(a)                                   The Issuers shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers’ Certificate of the Issuers stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuers and Guarantors have kept, observed, performed and fulfilled their obligations under this Indenture and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge each such entity has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof, including, without limitation, a default in the performance or breach of Section 4.10 hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action each is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes of any Series is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto.

 

(b)                                  The Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware of (i) any Default or Event of Default, or (ii) any default under any Indebtedness referred to in Section 6.01(f) or (g) hereof, an Officers’ Certificate of the Issuers specifying such Default, Event of Default or default and what action the Issuers or any of their Affiliates are taking or propose to take with respect thereto.

 

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SECTION 4.05.                                          Taxes.

 

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

 

SECTION 4.06.                                          Stay, Extension and Usury Laws.

 

The Issuers covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance hereof; and the Issuers (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 

SECTION 4.07.                                          Limitation on Liens.

 

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create or assume any Indebtedness for borrowed money that is secured by a Lien on any asset now owned or hereafter acquired, or on any income or profits therefrom or assign or convey any right to receive income therefrom, except Permitted Liens.

 

SECTION 4.08.                                          Additional Subsidiary Guarantees.

 

If any of the Company’s Domestic Subsidiaries, including any Domestic Subsidiary that the Company or any of its Subsidiaries may organize, acquire or otherwise invest in after the date of hereof, that is not a Guarantor guarantees or becomes otherwise obligated under the Senior Secured Credit Facility or the Existing Notes, then such Domestic Subsidiary shall (i) execute and deliver to the Trustee a supplemental indentur