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Section 1.01

Definitions .

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1)   the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

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Section 1.08

Effect of Headings and Table of Contents .

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

Section 1.09

Successors and Assigns .

All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

Section 1.10

Separability Clause .

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

Section 1.11

Benefits of Indenture .

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12

Governing Law .

This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof.

Section 1.13

Legal Holidays .

In any case where any Interest Payment Date, Redemption Date, Maturity or Stated Maturity of any Securities shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of the Securities of any series which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Maturity or Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Maturity or Stated Maturity, as the case may be.

Section 1.14

Personal Immunity from Liability for Incorporators, Stockholders, Etc.

No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on any Security, or for any claim based thereon, or otherwise in respect of any Security, or based on or in respect of this Indenture or any indenture supplemental hereto, against any incorporator, or against any past, present or future stockholder, officer, director, employee or agent, as such, of the Company or of any successor Person thereof, whether by virtue of any law, statute or constitutional provision, or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released as a condition of, and as consideration for, the execution of this Indenture and the issue of the Securities.

 

 

Section 1.15

Force Majeure .

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

 

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify, and record information that identifies each person that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information necessary for the Trustee to satisfy the requirements of the U.S.A. Patriot Act to the extent reasonably requested by the Trustee.

ARTICLE II
SECURITY FORMS

Section 2.01

Forms Generally .

The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution, or an Officers ’ Certificate executed by officers of the Company authorized by Board Resolution, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities.  If the form of Securities of any series is established by action pursuant to a Board Resolution, or an Officers ’ Certificate executed by officers of the Company authorized by Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of Securities.

The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution such Securities.

 

 

Section 2.02

Form of Face of Security .

[ Insert any legend required by the Internal Revenue Code and the regulations thereunder .]

HALFMOON PARENT, INC.
[_____%] [Zero Coupon] Senior [Note] [Debenture] Due [_____]
No _________	$_________

HALFMOON PARENT, INC., a Delaware corporation (herein called the “ Company ” ), for value received, hereby promises to pay to [ · ], or registered assigns, the principal sum of [ · ] [Dollars] [ If applicable, substitute other currency ] on   [ · ] [ If the Security is to bear interest prior to Maturity, insert – and to pay interest thereon from [ · ] or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [semi-annually on [ · ] and [ · ] in each year] [ If other than semi-annual payments, insert –   frequency of payments and payment dates], commencing [ · ], at [ If the Security   is to bear interest at a fixed rate, insert – the rate of [ · ]% per annum [ If the Security is a Floating or Adjustable Rate Security, [ · ] a rate per annum [computed-determined] in accordance with the [ insert defined name of Floating Adjustable Rate Provision] set forth below ] [ If the Security is to bear interest at a rate determined with reference to an index, refer to description of index below ], until the principal hereof is paid or made available for payment.  [ If applicable insert – , and (to the extent that the payment of such interest shall be legally enforceable) at the rate of [ · ]% per annum on any overdue principal and premium and on any overdue installment of interest].  The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the [ · ] or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.  Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 calendar days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].

[ If the Securities are Floating or Adjustable Rate Securities with respect to which the principal of or any premium or interest may be determined with reference to an index, insert the text of the Floating or Adjustable Rate Provision. ]

[ If the Security is not to bear interest prior to Maturity, insert – The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of [ · ]% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for.  Interest on any overdue principal shall be payable on demand.  Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of [ · ]% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]

 

 

Payment of the principal of (and premium, if any) and [ if applicable insert – any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in [ · ], in such coin or currency [of the United States of America] [ if applicable, substitute other currency ] as at the time of payment is legal tender for payment of public and private debts [ if applicable, insert – ; provided, however , that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].

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

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

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

Section 2.03

Form of Reverse of Security .

This Security is one of a duly authorized issue of securities of the Company (herein called the “ Securities ” ), issued and to be issued in one or more series under an Indenture, dated as of September 17, 2018 (herein called the “ Indenture ” ), between the Company and U.S. Bank National Association (herein called the “ Trustee , ” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.  This Security is one of the series designated on the face hereof [[initially], limited in aggregate principal amount to $[ · ]][, subject to future issuances of additional securities pursuant to Section 3.01 of the Indenture].

 

 

[ If applicable, insert – The Securities of this series are subject to redemption upon not less than 15 calendar days ’ nor more than 60 calendar days ’ notice by mail, [ if applicable, insert – (1) on [ · ] in any year commencing with the year [ · ] and ending with the year [ · ] through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [on or after   [ · ], [ · ]], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount):  If redeemed [on or before   [ · ], [ · ]%, and if, redeemed] during the 12-month period beginning [ · ] of the years indicated,

and thereafter at a Redemption Price equal to [ · ]% of the principal amount, together in the case of any such redemption [ if applicable , insert – (whether through operation of the sinking fund or otherwise)) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture;

[ If applicable, insert – The Securities of this series are subject to redemption upon not less than 15 calendar days ’ nor more than 60 calendar days ’ notice by mail, (1) on [ · ] in any year commencing with the year [ · ] and ending with the year [ · ] through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after [ · ]], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below:  If redeemed during the 12-month period beginning [ · ] of the years indicated,

 

 

 

and thereafter at a Redemption Price equal to [ · ]% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to Redemption Date, but interest installments whose Stated Maturity or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

[The sinking fund for this series provides for the redemption on [ · ] in each year beginning with the year [ · ] to and including the year [ · ] of [not less than] $[ · ] [( “ mandatory sinking fund ” ) and not more than $[ · ]] aggregate principal amount of Securities of this series.]  [Securities of this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made [ if applicable – in the inverse order in which they become due.]]

[ If this Security is subject to redemption ,   – In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

[ If the Security is not an Original Issue Discount Security ,   – If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]

[ If the Security is an Original Issue Discount Security ,   – If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.  Such amount shall be equal to – insert formula for determining the amount .  Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company ’ s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]

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

 

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, or the right of the Holder of this Security, which is absolute and unconditional, to pay, or, in the case of the Holder of this Security, to receive payment of, the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or such Holder ’ s attorney duly authorized in writing; and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities of this series are issuable only in registered form without coupons in denominations of $[ · ] and any integral multiple [thereof] [of $[ · ] in excess thereof].  As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for other Securities of this series, of a like tenor and aggregate principal amount but of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 of the Indenture not involving any transfer.

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

The Indenture provides that the Company, at the Company ’ s option, (a) will be discharged from any and all obligations in respect of the Securities (except for certain obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold moneys for payment in trust) or (b) need not comply with certain restrictive covenants of the Indenture, in each case if the Company deposits, in trust, with the Trustee money, or U.S. Government Obligations (or Foreign Government Obligations if the Securities are denominated in a foreign currency or currencies) which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal (including any mandatory sinking fund payments) of, and (premium, if any) and interest on, the Securities on the dates such payments are due in accordance with the terms of such Securities, and certain other conditions are satisfied.

 

 

No recourse shall be had for the payment of the principal of (and premium, if any) or interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer, employee, agent or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

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

Section 2.05

Additional Provisions Required in Global Security .

Any Global Security issued hereunder shall, in addition to the provisions contained in Sections 2.02 and 2.03 , bear the following legend (and/or such additional or alternate legend(s) relative to the terms of Global Securities as the Depository may request or the Company authorizes in a Board Resolution, Officers ’ Certificate or supplemental indenture pursuant to Section 2.01):

“ This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository.  This Global Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances hereinafter described and may not be transferred except as a whole by the Depository to a nominee of the Depository to the Depository or another nominee of the Depository. ”

 

 

In addition, except to the extent otherwise provided in a Board Resolution, Officers’ Certificate or supplemental indenture pursuant to Section 2.01  relating to such Global Security, any Global Security issued hereunder shall include a provision containing the language set forth below, or language of similar effect:

“ This Security is a Global Security and shall be exchangeable for Securities registered in the names of Persons other than the Depository with respect to this Global Security or its nominee only if (x) such Depository notifies the Company that it is unwilling or unable to continue as Depository for the series of Securities of which this Security is a part or at any time ceases to be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, and a successor depository is not appointed by the Company within 90 days, (y) the Company executes and delivers to the Trustee a Company Order that this Global Security shall be so exchangeable or (z) there shall have occurred and be continuing an Event of Default with respect to the Securities of which this Security is a part and the Depository notifies the Trustee of its decision to exchange any Global Securities of such series for Securities registered in the names of Persons other than the Depository.  If this Global Security is exchangeable pursuant to the preceding sentence it shall be exchangeable for Securities issuable in denominations of $1,000 and any integral multiple thereof, registered in such names as such Depository shall direct. ”

ARTICLE III
THE SECURITIES

Section 3.01

Amount Unlimited; Issuable in Series .

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

The Securities may be issued in one or more series.  Prior to the issuance of Securities of any series, there shall be (i) established in or pursuant to a Board Resolution and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officers ’ Certificate or (ii) established in one or more indentures supplemental hereto:

(1)   the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);

(2)   any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05 , 3.06 , 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03 , are deemed never to have been authenticated and delivered hereunder);

(3)   the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date of such interest;

 

 

(4)   the date or dates (or manner of determining the same) on which the principal of the Securities of the series is payable;

(5)   the rate or rates (or manner of determining the same) at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Interest Payment Date;

(6)   if other than as set forth herein, the place or places where the principal of (and premium, if any) and interest on Securities of the series shall be payable;

(7)   the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;

(8)   the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

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

(10)   if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 ;

(11)   the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of “ Outstanding ” in Section 1.01 ;

(12)   if the amount of payments of principal of (and premium, if any) or interest on the Securities of the series may be determined with reference to an index or formula, the manner in which such amounts shall be determined;

(13)   the application, if any, of Section 10.06 to the Securities of the series;

(14)   if any of the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities, a statement to that effect and, in such case, the Depository for such Global Security or Securities; and

(15)   any other terms of the series.

 

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officers ’ Certificate referred to above or in any such indenture supplemental thereto.

If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers ’ Certificate setting forth the terms of the series.

Section 3.02

Denominations .

The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.01 .  In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.

Section 3.03

Execution, Authentication, Delivery and Dating .

The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, .  The signature of any of these officers on the Securities may be manual or facsimile.

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and make available for delivery such Securities.  If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01 , in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Section 6.01 ) shall be fully protected in conclusively relying upon, an Opinion of Counsel stating,

(a)   if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;

(b)   if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.01 , that such terms have been established in conformity with the provisions of this Indenture; and

(c)   that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors ’ rights and to general equity principles.

 

 

With respect to Securities of a series constituting a medium-term note program, the Trustee may conclusively rely on the documents and opinion delivered pursuant to Sections 2.01 and 3.01 and this Section 3.03 , as applicable (unless revoked by superseding comparable documents or opinions) as to the authorization of the Board of Directors of any Securities delivered hereunder, the form thereof and the legality, validity, binding effect and enforceability thereof.  With respect to Securities of a series constituting a medium-term note program, if the form and general terms of the Securities of such series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01 , in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01 ) shall be fully protected in relying upon, an Opinion of Counsel stating, that the Securities have been duly authorized by the Company and, when duly executed by the Company and completed and authenticated by the Trustee in accordance with this Indenture and issued, delivered and paid for in accordance with any applicable distribution agreement will have been duly issued under this Indenture and will constitute valid and binding obligations of the Company entitled to the benefits provided by this Indenture, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors ’ rights and to general equity principles.  If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee ’ s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers ’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series.

Each Security shall be dated the date of its authentication.

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.  Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

 

Section 3.04

Temporary Securities .

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and make available for delivery, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive, Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.

If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay.  After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Security of such series) the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of authorized denominations and of a like aggregate principal amount and tenor.  Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.

Section 3.05

Registration, Registration of Transfer and Exchange .

The Company shall cause to be kept a security register (the register so maintained being herein sometimes referred to as the “ Security Register ” ) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.  The Trustee shall have the right to examine the Security Register at all reasonable times.  Unless otherwise designated by the Company by written notice to the Trustee, the Trustee shall be, and is hereby appointed “ Security Registrar ” for the purpose of registering Securities and transfers of Securities as herein provided.

Upon surrender for registration of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

 

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

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04 , 9.06 , or 11.07 not involving any transfer.

The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 3.01 , a Global Security of any series shall be exchangeable pursuant to this Section for Securities registered in the names of Persons other than the Depository with respect to such series or its nominee only as provided in this paragraph.  A Global Security of a series shall be exchangeable pursuant to this Section if (x) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such series or at any time ceases to be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, and a successor depository is not appointed by the Company within 90 days, (y) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so exchangeable or (z) there shall have occurred and be continuing an Event of Default with respect to the Securities of such series and the Depository notifies the Trustee of its decision to exchange any Global Securities of such series for Securities registered in the names of Persons other than the Depository.  Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, registered in such names as the Depository for such Global Security shall direct.

Notwithstanding any other provision of this Section, a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository.

Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depository.

 

 

Section 3.06

Mutilated, Destroyed, Lost and Stolen Securities .

If any mutilated Security is surrendered to the Trustee, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them and any agent of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

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

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

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

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

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

Section 3.07

Payment of Interest; Interest Rights Preserved .

Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

Unless otherwise provided with respect to the Securities of any series, at the option of the Company payment of interest may be made (i) with respect to Securities held in certificated form at the designated office of the Trustee, (ii) with respect to Securities held in book-entry form, by wire transfer or by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (iii) by such method or methods as any Holder shall specify in writing from time to time to the Company or its agent.

 

 

Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “ Defaulted Interest ” ) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:

(1)   The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).

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

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

Section 3.08

Persons Deemed Owners .

Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.07 ) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

 

No holder of any beneficial interest in any Global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such Global Security, and such Depository may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee from giving effect to any written certification, proxy, or other authorization furnished by a Depository, or impair, as between a Depository and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depository as Holder of any Security.

Section 3.09

Cancellation .

All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it; and any Security surrendered to the Trustee for any such purpose shall be promptly cancelled by it.  The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.  Notwithstanding any other provision of this Indenture to the contrary, in the case of a series all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to the Trustee shall be promptly cancelled by it.  No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee ’ s customary procedures.

Section 3.10

Computation of Interest .

Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

 

Section 3.11

CUSIP Numbers .

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

ARTICLE IV
SATISFACTION AND DISCHARGE

Section 4.01

Satisfaction and Discharge of Indenture .

This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) as to all outstanding Securities of any series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging such satisfaction and discharge of this Indenture with respect to such Securities, when

(1)   either

(A)   all Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03 ) have been delivered to the Trustee for cancellation; or

(B)   all Securities of such series not theretofore delivered to the Trustee for cancellation

(i)   have become due and payable, or

(ii)   will become due and payable at their Stated Maturity within one year, or

(iii)   are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,


and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire indebtedness on such Securities of such series not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest on the Securities of such series to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;  provided  that if on the date of such deposit, the interest payable to, or any premium payable on, the Stated Maturity or Redemption Date cannot be calculated, the amount deposited shall be sufficient to the extent that an amount is deposited with the Trustee equal to the interest payable to, or the premium payable on, the Stated Maturity or the Redemption Date calculated by reference to the interest rate, or treasury rate or discount, in effect on the date of such deposit, with any deficit on the Stated Maturity or Redemption Date, as applicable (any such amount, the “ Applicable Deficit ”), only required to be deposited with the Trustee on or prior to such Stated Maturity or Redemption Date, as applicable (it being understood that any satisfaction and discharge shall be subject to the condition subsequent that such deficit is in fact paid); provided further , any Applicable Deficit shall be set forth in an Officers’ Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Deficit that confirms that such Applicable Deficit shall be applied to the interest or other amounts payable at the Stated Maturity or on the Redemption Date, as applicable;

 

 

(2)   the Company has paid or caused to be paid all other sums payable hereunder by the Company in respect of such series of Securities; and

(3)   the Company has delivered to the Trustee an Officers ’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series of Securities have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company under Section 3.06, the obligations of the Company to the Trustee under Section 6.07 , if money or U.S. Government Obligations shall have been deposited with the Trustee in accordance with Section 10.06 , the obligations of the Company to the Trustee under Section 4.02(b) , and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03, shall survive.

Section 4.02

Application of Trust Money .

(a)   Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 , all money and U.S. Government Obligations deposited with the Trustee (or other trustee satisfying the requirements of Section 6.09 , collectively, for purposes of this Section 4.02 , the “ Trustee ” ) pursuant to Section 10.06 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 10.06 , shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Section 10.06 .

 

 

(b)   The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 10.06 or the interest and principal received in respect of such U.S. Government Obligations other than any such tax, fee or other charge which by law is payable by or on behalf of Holders.

(c)   Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 10.06 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then have been required to be deposited for the purpose for which such money or U.S. Government Obligations were deposited or received.

ARTICLE V
REMEDIES

Section 5.01

Events of Default .

“ Event of Default , ” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(1)   default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or

(2)   default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or

(3)   default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or

(4)   default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in any material respect (other than a covenant or warranty a default in the performance of which or the breach of which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by overnight mail or other same day or overnight delivery service which can provide evidence of delivery, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “ Notice of Default ” hereunder; or

 

 

(5)   the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of all or substantially all of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or

(6)   the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of all or substantially all of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due; or

(7)   any other Event of Default provided with respect to Securities of that series.

Section 5.02

Acceleration of Maturity; Rescission and Annulment .

If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if

 

 

(1)   the Company has paid or deposited with the Trustee a sum sufficient to pay

(A)   all overdue interest on all Securities of that series,

(B)   the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

(C)   to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and

(D)   all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, the Security Registrar, any Paying Agent and their agents and counsel; and

(2)   all Events of Default with respect to Securities of that series, other than the nonpayment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13 .

No such rescission shall affect any subsequent default or impair any right consequent thereon.

Section 5.03

Collection of Indebtedness and Suits for Enforcement by Trustee .

The Company covenants that if

(1)   default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

(2)   default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the reasonable costs and expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and other amounts due the Trustee under Section 6.07.

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

 

 

Section 5.04

Trustee May File Proofs of Claim .

In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 5.05

Trustee May Enforce Claims without Possession of Securities .

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

Section 5.06

Application of Money Collected .

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

FIRST:  To the payment of all amounts due the Trustee under Section 6.07; and

SECOND:  To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and

 

 

THIRD:  The remainder, if any, to the Company, its successors or assigns, or to whomsoever may be lawfully entitled to receive such remainder or as a court of competent jurisdiction shall direct.

Section 5.07

Limitation on Suits .

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

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

(2)   the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3)   such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

(4)   the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5)   no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

Section 5.08

Unconditional Right of Holders to Receive Principal, Premium and Interest .

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.07 ) any interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

 

Section 5.09

Restoration of Rights and Remedies .

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

Section 5.10

Rights and Remedies Cumulative .

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06 , no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 5.11

Delay or Omission Not Waiver .

No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

Section 5.12

Control by Holders .

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that

(1)   such direction shall not be in conflict with any rule of law or with this Indenture,

(2)   the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

(3)   the Trustee shall have the right to decline to follow such direction if the Trustee in good faith shall, by a Responsible Officer or Officers, determine that such direction would be prejudicial to the Holders not joining in such direction or would involve the Trustee in personal liability.

 

 

Section 5.13

Waiver of Past Defaults .

The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

(1)   in the payment of the principal of (or premium, if any) or interest on any Security of such series, or

(2)   in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured and shall cease to exist, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other, default or impair any right consequent thereon.

Section 5.14

Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including attorneys ’ fees and expenses, against, any such party litigant, to the extent that the Trust Indenture Act applies to this Indenture or any Securities, in the manner and to the extent provided in the Trust Indenture Act.  This Section 5.14 does not apply to a suit by the Company or the Trustee or a suit by a Holder pursuant to Section 5.08 hereof.

Section 5.15

Waiver of Stay or Extension Laws .

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE VI
THE TRUSTEE

Section 6.01

Certain Duties and Responsibilities .

To the extent that the Trust Indenture Act applies to this Indenture or any Securities, the duties and responsibilities of the Trustee shall be as provided in the Trust Indenture Act.  Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.  Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

 

Section 6.02

Notice of Defaults .

If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default, to the extent that the Trust Indenture Act applies to this Indenture or such series of Securities as and to the extent provided by the Trust Indenture Act; provided, however , that in the case of any default of the character specified in Section 5.01(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 90 days after the occurrence thereof.  For the purpose of this Section, the term “ default ” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

Except in the case of an Event of Default arising from the failure to make a payment of principal, premium, if any, or interest, if any, on any Security, the Trustee may withhold the notice if and so long as, it in good faith determines that withholding the notice is in the interests of the Holders.

Section 6.03

Certain Rights of Trustee .

Subject to the provisions of Section 6.01 :

(a)   the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b)   any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(c)   whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers ’ Certificate;

(d)   the Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(e)   the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

 

(f)   the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit;

(g)   the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(h)   the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

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

(j)   the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

(k)   the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

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

(m)   the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture (which certificate may be amended, supplemented or modified by the Company from time to time).

Section 6.04

Not Responsible for Recitals or Issuance of Securities .

The recitals contained herein and in the Securities, except the Trustee ’ s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.  The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

 

Section 6.05

May Hold Securities .

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13 , may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

Section 6.06

Money Held in Trust .

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

Section 6.07

Compensation and Reimbursement .

The Company agrees

(1)   to pay to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2)   except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(3)   to indemnify the Trustee for, and to hold it harmless against, any and all loss, damage, claim, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder.

The provisions of this Section shall survive the termination of this Indenture.

Section 6.08

Disqualification; Conflicting Interests .

To the extent that the Trust Indenture Act applies to this Indenture or any Securities, if the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

 

 

Section 6.09

Corporate Trustee Required; Eligibility

There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000.  If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 6.10

Resignation and Removal; Appointment of Successor .

(a)   No resignation or removal of the Trustee and no appointment of a successor Trustee, pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.

(b)   The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.  If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(c)   The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.

(d)   If at any time:

(1)   the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(2)   the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or

(3)   the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by or pursuant to a Board Resolution may remove the Trustee with respect to all Securities or (ii) subject to Section 5.14 , any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

 

(e)   If an instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(f)   If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11 .  If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11 , become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11 , any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(g)   The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06.  Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

Section 6.11

Acceptance of Appointment by Successor .

(a)   In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, at the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

 

(b)   In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

(c)   Upon request of any such successor Trustee, the Company shall execute any and all instruments which may be reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.

(d)   No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

Section 6.12

Merger, Conversion, Consolidation or Succession to Business .

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

 

Section 6.13

Preferential Collection of Claims Against Company .

To the extent that the Trust Indenture Act applies to this Indenture or any Securities, if and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

Section 6.14

Appointment of Authenticating Agent .

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06 , and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.  Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee, the Trustee ’ s certificate of authentication, or the delivery of the Securities to the Trustee for authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent, a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent or delivery of Securities to the Authenticating Agent for authentication in place of the Trustee, as the case may be.  Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority.  If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company.  The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.  No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in lieu of the Trustee ’ s certificate of authentication, an alternate certificate of authentication in the following form:

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

ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

Section 7.01

Company to Furnish Trustee Names and Addresses of Holders .

To the extent that the Trust Indenture Act applies to this Indenture or any Securities, the Company will furnish or cause to be furnished to the Trustee

(a)   semi-annually, not later than May 1 and November 1 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of the preceding April 15 or October 15, as the case may be, and

(b)   at such other times as the Trustee may request in writing, within 90 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.

 

 

Section 7.02

Preservation of Information; Communications to Holders .

(a)   The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

(b)   To the extent that the Trust Indenture Act applies to this Indenture or any Securities, the rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

(c)   Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

Section 7.03

Reports by Trustee .

(a)   During any time period in which the Trust Indenture Act applies to this Indenture or any Securities, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  If required by Section 3.13(a) of the Trust Indenture Act, to the extent the Trust Indenture Act applies to this Indenture or any Securities, the Trustee shall, within 60 days after each May 15 following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 3.13(a).

(b)   A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company.  During any time period in which the Trust Indenture Act applies to this Indenture or any Securities, the Company will promptly notify the Trustee in writing when any Securities are listed on any stock exchange and of any delisting thereof.

Section 7.04

Reports by Company .

During any time period in which the Trust Indenture Act applies to this Indenture or any Securities, the Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission; provided that the Trustee shall have no responsibility to determine if such reports have been filed.  Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers ’ Certificates).

 

 

ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

Section 8.01

Company May Consolidate, Etc., Only on Certain Terms .

The Company shall not consolidate with or merge with or into any other Person (other than in a merger or consolidation in which the Company is the surviving Person) or sell its properties and assets as, or substantially as, an entirety to any Person, unless:

(1)   the Person formed by the consolidation or with or into which the Company is merged or the Person that purchases the properties and assets of the Company as, or substantially as, an entirety is a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed, by supplemental indenture reasonably satisfactory in form to the Trustee, executed and delivered to the Trustee;

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

(3)   the Company has delivered to the Trustee an Officers ’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, or sale and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

Section 8.02

Successor Corporation Substituted .

Upon any consolidation of the Company with, or merger by the Company with or into, any other Person or any sale of the properties and assets of the Company as, or substantially as, an entirety in accordance with Section 8.01, the successor corporation formed by such consolidation or into which the Company is merged or to which such sale is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company herein, and thereafter, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

 

ARTICLE IX
SUPPLEMENTAL INDENTURES

Section 9.01

Supplemental Indentures without Consent of Holders .

Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:

(1)   to evidence the succession of another corporation to the Company and the assumption by any such successor of the obligations of the Company herein and in the Securities; or

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

(3)   to add any additional Events of Default; or

(4)   to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or

(5)   to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or

(6)   to secure the Securities pursuant to the requirements of Section 10.05 or otherwise or to perfect the security interest securing the Company’s obligations in respect of any Securities; or

(7)   to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01 ; or

(8)   to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b) ; or

 

 

(9)   to add any provision to or change or supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of previously issued and Outstanding Securities pursuant to Section 10.06, provided that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect; or

(10)   to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under the Indenture, provided that such action pursuant to this Clause (10) shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or

(11)   to provide for the guarantee by any Person of any series of previously issued and Outstanding Securities; or

(12)   to conform the text of the Indenture or the Securities to any provision of any relevant offering memorandum or prospectus; or

(13)   to conform to any mandatory provisions of law.

Section 9.02

Supplemental Indentures with Consent of Holders .

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

(1)   change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02 , or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

(2)   reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

 

(3)   modify any of the provisions of this Section, Section 5.13 or Section 10.08 , except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, provided , however , that this Clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “ the Trustee ” and concomitant changes in this Section and Section 10.08 in accordance with the requirements of Sections 6.11(b) and 9.01(8) .

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

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

Section 9.03

Execution of Supplemental Indentures .

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in conclusively relying upon, an Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee ’ s own rights, duties or immunities under this Indenture or otherwise.

Section 9.04

Effect of Supplemental Indentures .

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

Section 9.05

Conformity with Trust Indenture Act .

To the extent that the Trust Indenture Act applies to this Indenture or any Securities, every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

Section 9.06

Reference in Securities to Supplemental Indentures .

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

 

Section 9.07

Waiver of Compliance by Holders .

Anything in this Indenture to the contrary notwithstanding, any of the acts which the Company is required to do, or is prohibited from doing, by any of the provisions of this Indenture may, to the extent that such provisions might be changed or eliminated by a supplemental indenture pursuant to Section 9.02 upon consent of Holders of not less than a majority in aggregate principal amount of the then Outstanding Securities of the series affected, be omitted or done by the Company if there is obtained the prior consent or waiver of the Holders of at least a majority in aggregate principal amount of the then Outstanding Securities of such series.

ARTICLE X
COVENANTS

Section 10.01

Payment of Principal Premium and Interest .

The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.

Section 10.02

Maintenance of Office or Agency .

The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.  Unless otherwise designated by the Company by written notice to the Trustee, such office or agency shall be the designated office of the Trustee in New York, New York.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes.  The Company will 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.

 

 

Section 10.03

Money for Securities Payments to Be Held in Trust .

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act to the extent that the Trust Indenture Act applies to this Indenture or any Securities, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company will cause each Paying Agent for any series of Securities other than the Trustee or the Company to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, and upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.

Section 10.04

Existence .

Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however , that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.

 

 

Section 10.05

Limitation on Liens on Common Stock of Designated Subsidiaries .

So long as any Securities of any series shall remain Outstanding, the Company will not, and will not permit any Subsidiary to, directly or indirectly, create, issue, assume, incur or guarantee any indebtedness for borrowed money which is secured by a mortgage, pledge, lien, security interest or other encumbrance of any nature on any of the common stock of a Designated Subsidiary, which common stock is directly or indirectly owned by the Company, unless the Securities and, if the Company so elects, any other indebtedness of the Company ranking on parity with, or prior to, the Securities, shall be secured equally and ratably with, or prior to, such other secured indebtedness for borrowed money so long as it is outstanding and is so secured.

Section 10.06

Defeasance and Covenant Defeasance .

(a)   Company’s Option to Effect Defeasance and Covenant Defeasance .  The Company may elect, at any time, to have either Section 10.06(b) or Section 10.06(c) applied to the Outstanding Securities of any series upon compliance with the conditions set forth in this Section 10.06.

(b)   Defeasance and Discharge .  Upon the Company ’ s exercise of the option provided in Section 10.06(a) to have this Section 10.06(b) applied to the Outstanding Securities of any series, the Company shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series as provided in this Section 10.06(b) on and after the date the conditions set forth in Section 10.06(d) are satisfied (hereinafter called “ Defeasance ” ).  For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all of the Company ’ s other obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Securities of such series to receive, solely from the trust fund described in Section 10.06(d) and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities of such series when payments are due, (2) the Company ’ s obligations with respect to the Securities of such series under Sections 3.04 , 3.05 , 3.06 , 10.02 and 10.03 , (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including, without limitation, its rights under Section 6.07 and (4) this Section 10.06 .  Subject to compliance with this Section 10.06 , the Company may exercise its option provided in Section 10.06(a) to have this Section 10.06(b) applied to the Outstanding Securities of any series notwithstanding the prior exercise of its option provided in Section 10.06(a) to have Section 10.06(c) applied to the Outstanding Securities of such series.

 

 

(c)   Covenant Defeasance .  Upon the Company ’ s exercise of the option provided in Section 10.06(a) to have this Section 10.06(c) applied to the Outstanding Securities of any series, (1) the Company shall be released from its obligations under Sections 8.01 and 10.05 and (2) the occurrence of any event specified in Section 5.01(4) (with respect to Sections 8.01 and 10.05 ), in each case with respect to the Outstanding Securities of such series as provided in this Section 10.06(c) on and after the date the conditions set forth in Section 10.06(d) are satisfied (hereinafter called “ Covenant Defeasance ” ).  For this purpose, such Covenant Defeasance means that the Company may omit to comply with (and no Event of Default shall arise out of such non-compliance) and shall have no liability in respect of any term, condition or limitation set forth in Section 8.01 and/or 10.05 , whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby.

(d)   Conditions to Defeasance or Covenant Defeasance .  The following shall be the conditions to application of either Section 10.06(b) or Section 10.06(c) to the Outstanding Securities of any series:

(1)   The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Section 10.06 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Outstanding Securities of such series, (A) in the case of Securities of such series denominated in U.S. dollars, (i) money in an amount, (ii) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one Business Day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium, interest and any other sums due on the Securities of such series on the respective Stated Maturities, in accordance with the terms of this Indenture and the Securities of such series or (B) in the case of Securities of such series denominated in a currency other than the U.S. dollar, (i) money in such currency in an amount or (ii) Foreign Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one Business Day before the due date of any payment, money in such currency in an amount, or (iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on the Securities of such series on the respective Stated Maturities, in accordance with the terms of this Indenture and the Securities of such series.

 

 

(2)   In the case of an election under Section 10.06(b) , the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the U.S. Internal Revenue Service a letter ruling, or there has been published by the U.S. Internal Revenue Service a Revenue Ruling or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

(3)   In the case of an election under Section 10.06(c) , the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as result of the deposit and Covenant Defeasance to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

(4)   The Company shall have delivered to the Trustee an Officers ’ Certificate to the effect that the Securities of such series, if then listed on any securities exchange, will not be delisted as a result of such deposit.

(5)   No Event of Default or event that (after notice or lapse of time or both) would become an Event of Default shall have occurred and be continuing at the time of such deposit or, with regard to any Event of Default or any such event specified in Sections 5.01(5) and 5.01(6) , at any time on or prior to the 90th calendar day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th calendar day).

(6)   The Company shall have delivered to the Trustee an Officers ’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

(7)   Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be qualified under such Act or exempt from regulation thereunder.

(e)   Deposited Money and U.S. Government Obligations or Foreign Government Obligations to Be Held in Trust; Other Miscellaneous Provisions .  Subject to the provisions of the last paragraph of Section 10.03 , all money and U.S. Government Obligations or Foreign Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 10.06(e) and Section 10.06(f) , the Trustee and any such other trustee are referred to collectively as the “ Trustee ”) pursuant to Section 10.06(d) in respect of the Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities of such series and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of Securities of such series, of all sums due and to become due on such Securities in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

 

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Section 10.06(d) or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities.

Anything in this Section 10.06 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations or Foreign Government Obligations held by the Trustee as provided in Section 10.06(d) with respect to Securities of any series that, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such series.

(f)   Reinstatement .  If the Trustee or the Paying Agent is unable to apply any money in accordance with this Section 10.06 with respect to the Securities of any series by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company ’ s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Section 10.06 with respect to Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 10.06(e) with respect to Securities of such series in accordance with this Section 10.06 ; provided, however , that if the Company makes any payment of principal of or any premium or interest on any Security of such series following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of Securities of such series to receive such payment from the money so held in trust.

Section 10.07

Statement by Officers as to Default .

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers ’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

 

 

Section 10.08

Waiver of Certain Covenants .

The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 10.04 or 10.05 , inclusive, with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

ARTICLE XI
REDEMPTION OF SECURITIES

Section 11.01

Applicability of Article .

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.

Section 11.02

Election to Redeem; Notice to Trustee .

The election of the Company to redeem any Securities shall be evidenced by an Officers ’ Certificate.  In case of any redemption at the election of the Company of the Securities of any series, the Company shall, at least 20 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.  In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers ’ Certificate evidencing compliance with such restriction.

Section 11.03

Selection by Trustee of Securities to Be Redeemed .

If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by lot or such other method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.  If less than all of the Securities of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.

 

 

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

Section 11.04

Notice of Redemption .

Notice of redemption shall be mailed or otherwise delivered in accordance with the applicable procedures of the Depository not less than 15 nor more than 60 days prior to the Redemption Date, to each holder of Securities to be redeemed, at his address appearing in the Security Register.

All notices of redemption shall identify the Securities to be redeemed (including “CUSIP” number(s)) and shall state:

(1)   the Redemption Date,

(2)   the Redemption Price,

(3)   if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed,

(4)   that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

(5)   the place or places where such Securities are to be surrendered for payment of the Redemption Price, and

(6)   that the redemption is for a sinking fund, if such is the case.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company.

Section 11.05

Deposit of Redemption Price .

On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03 ) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified as contemplated by Section 3.01 ) accrued interest on, all the Securities which are to be redeemed on that date.

 

 

Section 11.06

Securities Payable on Redemption Date .

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest.  Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however , that, unless otherwise specified as contemplated by Section 3.01 , installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07 .

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

Section 11.07

Securities Redeemed in Part .

Any Security (including any Global Security) which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered; provided that if a Global Security is so surrendered, the new Global Security shall be in a denomination equal to the unredeemed portion of the principal of the Global Security so surrendered.

ARTICLE XII
SINKING FUNDS

Section 12.01

Applicability of Article .

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities of such series.

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “ mandatory sinking fund payment , ” and any payment in excess of, such minimum amount provided for by the terms of Securities of any series is herein referred to as an “ optional sinking fund payment . ”   If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02.  Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

 

Section 12.02

Satisfaction of Sinking Fund Payments with Securities .

The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited.  Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

Section 12.03

Redemption of Securities for Sinking Fund .

Not less than 60 days prior to each sinking fund payment date for any series of Securities (unless a shorter period of time shall be acceptable to the Trustee), the Company will deliver to the Trustee an Officers ’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered.  Not less than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04.  Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07 .

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

[ Signature page follows ]

 

 

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

 

 

 

 

 

[ Signature Page to Halfmoon Parent, Inc. Base Indenture ]

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Exhibit 4.2

SUPPLEMENTAL INDENTURE

SUPPLEMENTAL INDENTURE No. 1 , dated as of September 17, 2018 (the " Supplemental Indenture "), between HALFMOON PARENT, INC. , a corporation duly organized and existing under the laws of the State of Delaware (the " Company "), and U.S. BANK NATIONAL ASSOCIATION , a national banking association duly organized and existing under the laws of the United States of America, as trustee and collateral agent (the " Trustee ").

RECITALS:

WHEREAS, the Company and the Trustee are parties to a Senior Indenture, dated as of September 17, 2018 (the " Base Indenture " and, as supplemented by this Supplemental Indenture, the " Indenture "), relating to the issuance from time to time by the Company of its Securities on terms to be specified at the time of issuance;

WHEREAS, Section 9.01(7) of the Base Indenture provides that the Company may enter into a supplemental indenture to establish the terms and provisions of Securities of any series issued pursuant to the Indenture;

WHEREAS, the Company desires to issue ten separate series of Securities, and has duly authorized the creation and issuance of such Securities and the execution and delivery of this Supplemental Indenture to modify the Base Indenture and provide certain additional provisions as hereinafter described;

WHEREAS, the parties hereto deem it advisable to enter into this Supplemental Indenture for the purpose of establishing the terms of such Securities, providing for the rights, obligations and duties of the Trustee with respect to such Securities; and

WHEREAS, all conditions and requirements of the Base Indenture necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto.

NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged by the parties hereto, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section I.01   Definitions .

(a)   For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:

" Acquisition " means the acquisition by the Company of Cigna and its Subsidiaries and Express Scripts and its Subsidiaries.

 

 

" Applicable Procedures " means, with respect to any transfer or transaction involving a Regulation S Global Note or beneficial interest therein, the rules and procedures of the Depository for such Global Note, Euroclear and Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.

" Business Day ," means any day other than a Saturday, Sunday or other day on which banking institutions in The City of New York are authorized or obligated by law or executive order to be closed.

" Cigna " means Cigna Corporation, a Delaware corporation.

" Clearstream " means Clearstream Banking, S.A., Luxembourg.

" Definitive Note " means a certificated Senior Note bearing, if required, the appropriate Restricted Notes Legend set forth in Section 2.12(d) .

" Depository " means The Depository Trust Company, its nominees and their respective successors.

" Designated Subsidiary "   means (i) from and after the date upon which the Acquisition is consummated, each of Cigna, Connecticut General Life Insurance Company, Life Insurance Company of North America, Express Scripts, Express Scripts, Inc. and Medco Health Solutions, Inc., so long as it remains a Subsidiary, or any Subsidiary which is a successor of a Designated Subsidiary or (ii) from and after the date upon which the Required Merger is consummated, each of Connecticut General Life Insurance Company and Life Insurance Company of North America, so long as it remains a Subsidiary, or any Subsidiary which is a successor of a Designated Subsidiary.

" Domestic Subsidiary " means a Subsidiary that is organized or established under the laws of the United States of America, any state thereof or the District of Columbia.

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

" Exchange Notes " has the meaning specified in the Registration Rights Agreement.

" Express Scripts " means Express Scripts Holding Company, a Delaware corporation.

" Global Notes Legend " means the legend set forth in Section 2.12(e)(i) .

" Guarantors " means each of Cigna and Express Scripts from and after the date, if any, that such entity executes a supplemental indenture pursuant to Section 4.06 hereof until the date that such entity is released from its Guarantee pursuant to Section 4.03 hereof or otherwise .

" Initial Notes " means the Senior Notes issued pursuant to this Supplemental Indenture on the date hereof.

 

 

" Interest Payment Date " when used with respect to any Senior Notes, means the date specified in such Senior Notes as the fixed date on which an installment of interest is due and payable.

" Mandatorily Redeemable Notes " means the 18-Month Floating Rate Notes, the 2-Year Fixed Rate Notes, the 3-Year Floating Rate Notes, the 3-Year Fixed Rate Notes, the 5-Year Floating Rate Notes, the 5-Year Fixed Rate Notes, the 7-Year Fixed Rate Notes, the 10-Year Fixed Rate Notes and the 20-Year Fixed Rate Notes, each as defined in Section 2.01 hereof.

" Notes Custodian " means the custodian with respect to a Global Note (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee.

" Offering Memorandum " means the offering memorandum, dated as of September 6, 2018, relating to the offering of the Initial Notes.

" Purchase Agreement " means the Purchase Agreement dated as of September 6, 2018 among the Company, Cigna and the Representatives.

" Qualified Institutional Buyer " or " QIB " has the meaning specified in Rule 144A promulgated under the Securities Act.

" Record Date " means the close of business on the date that is fifteen (15) calendar days prior to the date on which interest is scheduled to be paid, regardless of whether such date is a Business Day; provided that if any of the Senior Notes are held by a securities depositary in book-entry form, the record date for such Senior Notes will be the close of business on the Business Day immediately preceding the date on which interest is scheduled to be paid.

" Registered Exchange Offer " means the offer by the Company (or, if applicable, Cigna), pursuant to the Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to such Holders, in exchange for their Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities Act.

" Registration Rights Agreement " means the Registration Rights Agreement dated as of September 17, 2018, among the Company and the Representatives.

" Regulation S " means Regulation S promulgated under the Securities Act.

" Regulation S Notes " means all Senior Notes offered and sold in an offshore transaction in reliance on Regulation S.

" Representatives " means Morgan Stanley & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Wells Fargo Securities LLC, as representatives of the initial purchasers named in Schedule I to the Purchase Agreement.

" Restricted Notes Legend " means the legend set forth in Section 2.12(e)(ii) .

 

 

 

" Restricted Period " means with respect to any Senior Notes the period that is 40 consecutive days beginning on and including the later of (i) the day on which such Senior Notes are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the date of original issuance with respect to such Senior Notes.

" Rule 144 " means Rule 144 promulgated under the Securities Act.

" Rule 144A " means Rule 144A promulgated under the Securities Act.

" Rule 144A Notes " means all Senior Notes offered and sold to purchasers reasonably believed to be QIBs in reliance on Rule 144A.

" Securities Act " means the U.S. Securities Act of 1933, as amended.

" Security Agreement " means the Security Agreement dated as of September 17, 2018, among the Company and the Trustee, as Secured Party.

" Stated Maturity " means, with respect to each series, the relevant date set forth in Section 2.03 .

" Transfer Restricted Note " means any Senior Note that bears or is required to bear a Restricted Notes Legend.

" Trigger Date " shall mean the earlier to occur of:

(i)   the date on which the Company shall have delivered to the Trustee  a certificate signed by its Chairman of the Board, its Vice Chairman of the Board, the President, a Vice President, the Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant Corporate Secretary of the Company certifying that:

(A)   substantially concurrently with the release of the liens granted under the Security Agreement, the Acquisition shall have been or shall be consummated; and

(B)   Cigna and Express Scripts (or their respective successors) shall have guaranteed (or shall, promptly following such date, guarantee) the Senior Notes; and

(ii)   the Special Mandatory Redemption Date.

(b)   The terms defined in this Section have the meanings assigned to them in this Section and include the plural as well as the singular.

(c)   terms used herein without definition shall have the meanings specified in the Base Indenture.

(d)   All references to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture.

 

 

 

(e)   The terms " herein ," " hereof ," " hereunder " and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

(f)   All references to "interest" on the Senior Notes shall be deemed to include any additional interest thereof pursuant to the Registration Rights Agreement.

Section I.02   Index of Defined Terms .

Term	Page
10-Year Fixed Rate Notes	8
18-Month Floating Rate Notes	7
20-Year Fixed Rate Note	8
2-Year Fixed Rate Notes	7
30-Year Fixed Rate Notes	8
3-Year Fixed Rate Notes	8
3-Year Floating Rate Notes	8
5-Year Fixed Rate Notes	8
5-Year Floating Rate Notes	8
7-Year Fixed Rate Notes	8
Account Control Agreement	31
Acquisition	1
Additional Senior Notes	9
Adjustments	14
Agent Members	16
Alternative Rate	14
Applicable Procedures	2
Base Indenture	1, B-1
Below Investment Grade Rating Event	26
Business Day	2
Calculation Agent	12
Change of Control	27
Change of Control Offer	25
Change of Control Payment	25
Change of Control Payment Date	25
Change of Control Triggering Event	27
Cigna	2
Clearstream	2
Collateral Default	35
Company	1, A-1, B-1
Comparable Treasury Issue	29
Comparable Treasury Price	29
Covenant Defeasance	40
Daily Interest Amount	14
Definitive Note	2
Depository	2

Designated Subsidiary	2
Domestic Subsidiary	2
Euroclear	2
Event of Default	34
Exchange Act	25
Exchange Notes	2
Express Scripts	2
First Supplemental Indenture	B-1
Fitch	27
Fixed Rate Make Whole Redemption Price	28
Fixed Rate Notes	8
Floating Rate Interest Payment Date	12
Floating Rate Notes	8
Guarantee	41, B-2
Guarantee Release Condition	42
Guarantor	B-1
Guarantors	2, B-1
IFA	14
Indenture	1, B-1
Independent Investment Banker	29
Initial Notes	2
Interest Determination Date	13
Interest Payment Date	3
Interest Reset Date	12
Investment Grade Rating	27
LIBOR Alternative Rate Provision	14
LIBOR Event	14
London Business Day	13
Make-Whole Basis Points	29
Mandatorily Redeemable Notes	3
Moody's	28
nationally recognized statistical rating organization	28
Notes	B-1
Notes Custodian	3
Notice of Default	34
Offering Memorandum	3
Par Call	28
Par Call Date	29
Permitted Investments	32
person	27
Pledged Property	31
Primary Treasury Dealer	30
Purchase Agreement	3
QIB	3
Qualified Institutional Buyer	3
Rating Agencies	28

Record Date	3
Redemption Exclusive Control Trigger Event	32
Reference Treasury Dealer	30
Reference Treasury Dealer Quotations	30
Registered Exchange Offer	3
Registration Rights Agreement	3
Regular Record Date	11
Regulation S	3
Regulation S Global Note	15
Regulation S Notes	3
Required Merger	32
Restricted Notes Legend	2, 3
Restricted Period	4
Rule 144	4
Rule 144A	4
Rule 144A Global Note	15
Rule 144A Notes	4
S&P	28
Securities	A-1
Securities Act	4, A-1
Security Agreement	4
Segregated Collateral Accounts	31
Senior Notes	8
Special Mandatory Redemption	30
Special Mandatory Redemption Date	31
Special Mandatory Redemption Price	31
Special Mandatory Redemption Trigger Date	30
Stated Maturity	4
Supplemental Indenture	1, B-1
Transfer Restricted Note	4
Treasury Rate	30
Trigger Date	4
Trustee	1
Use of Proceeds Exclusive Control Trigger Event	32
voting stock	27

 

ARTICLE II
THE SENIOR NOTES

Section 2.01   Title of Securities .  There shall be:

(a)   a series of Securities designated the "Senior Floating Rate Notes due 2020" of the Company (the " 18-Month Floating Rate Notes ");

(b)   a series of Securities designated the "3.200% Senior Notes due 2020" of the Company (the " 2-Year Fixed Rate Notes ");

 

 

 

(c)   a series of Securities designated the "Senior Floating Rate Notes due 2021" of the Company (the " 3-Year Floating Rate Notes ");

(d)   a series of Securities designated the "3.400% Senior Notes due 2021" of the Company (the " 3-Year Fixed Rate Notes ");

(e)   a series of Securities designated the "Senior Floating Rate Notes due 2023" of the Company (the " 5-Year Floating Rate Notes " and, together with the 18-Month Floating Rate Notes and the 3-Year Floating Rate Notes, the " Floating Rate Notes ");

(f)   a series of Securities designated the "3.750% Senior Notes due 2023" of the Company (the " 5-Year Fixed Rate Notes ");

(g)   a series of Securities designated the "4.125% Senior Notes due 2025" of the Company (the " 7-Year Fixed Rate Notes ");

(h)   a series of Securities designated the "4.375% Senior Notes due 2028" of the Company (the " 10-Year Fixed Rate Notes ");

(i)   a series of Securities designated the "4.800% Senior Notes due 2038" of the Company (the " 20-Year Fixed Rate Notes "); and

(j)   a series of Securities designated the "4.900% Senior Notes due 2048" of the Company (the " 30-Year Fixed Rate Notes " and, together with the 2-Year Fixed Rate Notes, the 3-Year Fixed Rate Notes, the 5-Year Fixed Rate Notes, the 7-Year Fixed Rate Notes, the 10-Year Fixed Rate Notes and the 20-Year Fixed Rate Notes, the " Fixed Rate Notes ," and the Fixed Rate Notes together with the Floating Rate Notes, the " Senior Notes ").

Section 2.02   Limitation of Aggregate Principal Amount .

(a)   The aggregate principal amount of the 18-Month Floating Rate Notes shall initially be limited to $1,000,000,000.

(b)   The aggregate principal amount of the 2-Year Fixed Rate Notes shall initially be limited to $1,750,000,000.

(c)   The aggregate principal amount of the 3-Year Floating Rate Notes shall initially be limited to $1,000,000,000.

(d)   The aggregate principal amount of the 3-Year Fixed Rate Notes shall initially be limited to $1,250,000,000.

(e)   The aggregate principal amount of the 5-Year Floating Rate Notes shall initially be limited to $700,000,000.

(f)   The aggregate principal amount of the 5-Year Fixed Rate Notes shall initially be limited to $3,100,000,000.

 

 

 

(g)   The aggregate principal amount of the 7-Year Fixed Rate Notes shall initially be limited to $2,200,000,000.

(h)   The aggregate principal amount of the 10-Year Fixed Rate Notes shall initially be limited to $3,800,000,000.

(i)   The aggregate principal amount of the 20-Year Fixed Rate Notes shall initially be limited to $2,200,000,000.

(j)   The aggregate principal amount of the 30-Year Fixed Rate Notes shall initially be limited to $3,000,000,000.

(k)   In the case of each series of Senior Notes, the aggregate principal amount specified in this Section shall be subject to the amount of such series that is authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, such series pursuant to Section 3.04 , 3.05 , 3.06 , 9.06 or 11.07 of the Base Indenture and the amount of such series which, pursuant to Section 3.03 of the Base Indenture, is deemed never to have been authenticated and delivered thereunder.

(l)   The Company may from time to time, without notice to or the consent of the Holders of any series of Senior Notes, create and issue further Senior Notes of any such series ranking equally with the Senior Notes of such series (and being treated as a single class with the Senior Notes of such series) in all respects (" Additional Senior Notes "); provided , however , that if such Additional Senior Notes are not fungible with the initial Senior Notes of such series for U.S. federal income tax purposes, such Additional Senior Notes will have a separate CUSIP number. The Senior Notes of each series and any Additional Senior Notes of such series, together with any Exchange Notes issued with respect to such series in accordance with the Registration Rights Agreement, will be treated as a single series or class for all purposes under the Indenture, including, without limitation, waivers, amendments and redemptions.

Section 2.03   Principal Payment Date .

(a)   The principal amount of the 18-Month Floating Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on March 17, 2020, which date shall be the Stated Maturity of the 18-Month Floating Rate Notes.

(b)   The principal amount of the 2-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on September 17, 2020, which date shall be the Stated Maturity of the 2-Year Fixed Rate Notes.

(c)   The principal amount of the 3-Year Floating Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on September 17, 2021, which date shall be the Stated Maturity of the 3-Year Floating Rate Notes.

(d)   The principal amount of the 3-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on September 17, 2021, which date shall be the Stated Maturity of the 3-Year Fixed Rate Notes.

 

 

 

(e)   The principal amount of the 5-Year Floating Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on July 15, 2023, which date shall be the Stated Maturity of the 5-Year Floating Rate Notes.

(f)   The principal amount of the 5-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on July 15, 2023, which date shall be the Stated Maturity of the 5-Year Fixed Rate Notes.

(g)   The principal amount of the 7-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on November 15, 2025, which date shall be the Stated Maturity of the 7-Year Fixed Rate Notes.

(h)   The principal amount of the 10-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on October 15, 2028, which date shall be the Stated Maturity of the 10-Year Fixed Rate Notes.

(i)   The principal amount of the 20-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on August 15, 2038, which date shall be the Stated Maturity of the 20-Year Fixed Rate Notes.

(j)   The principal amount of the 30-Year Fixed Rate Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on December 15, 2048, which date shall be the Stated Maturity of the 30-Year Fixed Rate Notes.

Section 2.04   Interest on the Fixed Rate Notes .

(a)   The rate of interest on each 2-Year Fixed Rate Note shall be 3.200% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 2-Year Fixed Rate Note shall be payable semi-annually in arrears on March 17 and September 17 of each year, commencing on March 17, 2019, and on the Maturity of such series.

(b)   The rate of interest on each 3-Year Fixed Rate Note shall be 3.400% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 3-Year Fixed Rate Note shall be payable semi-annually in arrears on March 17 and September 17 of each year, commencing on March 17, 2019, and on the Maturity of such series.

(c)   The rate of interest on each 5-Year Fixed Rate Note shall be 3.750% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 5-Year Fixed Rate Note shall be payable semi-annually in arrears on January 15 and July 15 of each year, commencing on January 15, 2019, and on the Maturity of such series.

(d)   The rate of interest on each 7-Year Fixed Rate Note shall be 4.125% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 7-Year Fixed Rate Note shall be payable semi-annually in arrears on May 15 and November 15 of each year, commencing on May 15, 2019, and on the Maturity of such series.

 

 

(e)   The rate of interest on each 10-Year Fixed Rate Note shall be 4.375% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 10-Year Fixed Rate Note shall be payable semi-annually in arrears on April 15 and October 15 of each year, commencing on April 15, 2019, and on the Maturity of such series.

(f)   The rate of interest on each 20-Year Fixed Rate Note shall be 4.800% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 20-Year Fixed Rate Note shall be payable semi-annually in arrears on February 15 and August 15 of each year, commencing on February 15, 2019, and on the Maturity of such series.

(g)   The rate of interest on each 30-Year Fixed Rate Note shall be 4.900% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, and interest on each 30-Year Fixed Rate Note shall be payable semi-annually in arrears on June 15 and December 15 of each year, commencing on June 15, 2019, and on the Maturity of such series.

(h)   The amount of interest payable on the Fixed Rate Notes on any Interest Payment Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months.  The amount of interest payable for any period shorter than a full monthly period shall be computed on the basis of the actual number of calendar days elapsed in such a period.

(i)   If the date on which a payment of interest or principal on the Fixed Rate Notes is scheduled to be paid is not a Business Day, then that interest or principal payable on such date will be paid on the next succeeding Business Day, and no further interest will accrue as a result of such delay.

(j)   The interest payable in respect of any Fixed Rate Notes, and punctually paid or duly provided for, on any Interest Payment Date in respect of such Fixed Rate Notes will be paid to the Person in whose name such Fixed Rate Note (or one or more Predecessor Securities) is registered at the close of business on the date that is fifteen (15) calendar days prior to the date on which interest is scheduled to be paid, regardless of whether such date is a Business Day (the " Regular Record Date "), provided that if any of the Fixed Rate Notes are held by a securities depositary in book-entry form, the Regular Record Date for such Fixed Rate Notes will be the close of business on the Business Day immediately preceding the date on which interest is scheduled to be paid; provided , further , that interest payable at the relevant Maturity will be payable to the Persons to whom the principal of such Fixed Rate Notes is payable.

Section 2.05   Interest on the Floating Rate Notes .

(a)   The rate of interest on each 18-Month Floating Rate Note shall be a floating rate, reset quarterly, equal to LIBOR determined as described herein plus 0.35% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, payable quarterly in arrears on March 17, June 17, September 17 and December 17 of each year, commencing on December 17, 2018 and on the Maturity of such series.

 

 

 

(b)   The rate of interest on each 3-Year Floating Rate Note shall be a floating rate, reset quarterly, equal to LIBOR determined as described herein plus 0.65% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, payable quarterly in arrears on March 17, June 17, September 17 and December 17 of each year, commencing on December 17, 2018 and on the Maturity of such series.

(c)   The rate of interest on each 5-Year Floating Rate Note shall be a floating rate, reset quarterly, equal to LIBOR determined as described herein plus 0.89% per annum, accruing from the date of original issuance or from the most recent date to which interest has been paid or duly provided for, payable semi-annually in arrears on January 15, April 15, July 15 and October 15 of each year, commencing on October 15, 2018 and on the Maturity of such series.

(d)   The amount of interest payable in respect of any Floating Rate Note, and punctually paid or duly provided for, on any interest payment date specified in Section 2.05(a), (b) and (c) (each, a " Floating Rate Interest Payment Date ") will be paid to the Person in whose name such Floating Rate Note (or one or more Predecessor Securities) is registered on the Regular Record Date, provided that if any of the Floating Rate Notes are held by a securities depositary in book-entry form, the Regular Record Date for such Floating Rate Notes will be the close of business on the Business Day immediately preceding the date on which interest is scheduled to be paid; provided , further , that interest payable at the relevant Maturity will be payable to the Persons to whom the principal of such Fixed Rate Notes is payable.

(e)   If a Floating Rate Interest Payment Date (other than any Maturity) is not a Business Day, then such Floating Rate Interest Payment Date shall be the next succeeding Business Day, unless the next succeeding Business Day is in the next succeeding calendar month, in which case such Floating Rate Interest Payment Date shall be the immediately preceding Business Day.  If the relevant Maturity of any Floating Rate Note falls on a day that is not a Business Day, the payment of principal and interest, if any, otherwise payable on such date will be postponed to the next succeeding Business Day, and no interest on such payment will accrue from and after such Maturity.

(f)   The Floating Rate Notes will bear interest for each Interest Period at a rate determined by U.S. Bank National Association, acting as calculation agent, or any successor thereto, including a successor appointed pursuant to 2.05(i) (the " Calculation Agent ").

(g)   The interest rate for each Interest Period will be reset for the 18-Month Floating Rate Notes and the 3-Year Floating Rate Notes on March 17, June 17, September 17 and December 17 of each year and for the 5-Year Floating Rate Notes on January 15, April 15, July 15 and October 15 of each year (each such date, an " Interest Reset Date "), and will be set for the initial Interest Period on the date of original issuance on the Floating Rate Notes. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be the next succeeding Business Day, unless the next succeeding Business Day is in the next succeeding calendar month, in which case such Interest Reset Date shall be the immediately preceding Business Day. The initial Interest Period for the Floating Rate Notes will be the period from and including September 17, 2018 to, but excluding, the first Interest Reset Date. Thereafter, an " Interest Period " shall mean the period from and including an Interest Reset Date to, but excluding, the next succeeding Interest Reset Date and, in the case of the last such period, from and including the Interest Reset Date immediately preceding Maturity,  but excluding, such Maturity.

 

 

(h)   The interest determination date for the initial Interest Period will be the date that is the second London Business Day preceding the date of original issuance of the Floating Rate Notes and for any other Interest Period will be the second London Business Day preceding the relevant Interest Reset Date (the " Interest Determination Date "). A " London Business Day " is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market. Promptly upon determination, the Calculation Agent will inform the Company of the interest rate for the next Interest Period.

(i)   Absent manifest error, the determination of the interest rate by the Calculation Agent shall be conclusive and binding on the Holders of the Floating Rate Notes, the Trustee and the Company. So long as LIBOR is required to be determined with respect to the Floating Rate Notes, there will at all times be a Calculation Agent. In the event that any then acting Calculation Agent shall be unable or unwilling to act, or that such Calculation Agent shall fail to duly establish LIBOR for any Interest Period, or that the Company proposes to remove such Calculation Agent, the Company shall appoint another Person which is a bank, trust company, investment banking firm or other financial institution to act as the Calculation Agent.

(j)   On any Interest Determination Date, LIBOR will be equal to the offered rate for deposits in U.S. dollars having an index maturity of three months as such rate appears on "Reuters Page LIBOR01" at approximately 11:00 a.m., London time, on such Interest Determination Date. If on an Interest Determination Date, such rate does not appear on the "Reuters Page LIBOR01" at approximately 11:00 a.m., London time, or if "Reuters Page LIBOR01" is not available at such time, the Calculation Agent will obtain such rate from Bloomberg L.P.'s page "BBAM."

(k)   Subject to Section 2.05(l), if no offered rate appears on "Reuters Page LIBOR01" or Bloomberg L.P.'s page "BBAM" on an Interest Determination Date at approximately 11:00 a.m., London time, then the Company will select four major banks in the London interbank market and shall request each of their principal London offices to provide to the Calculation Agent a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1 million are offered by it to prime banks in the London interbank market, on that date and at that time, that is representative of single transactions at that time. If at least two quotations are provided, LIBOR will be the arithmetic average of the quotations provided. Otherwise, the Company will select three major banks in New York City and shall request each of them to provide to the Calculation Agent a quotation of the rate offered by them at approximately 11:00 a.m., New York City time, on the Interest Determination Date for loans in U.S. dollars to leading European banks having an index maturity of three months for the applicable Interest Period in an amount of at least $1 million that is representative of single transactions at that time. If three quotations are provided, LIBOR will be the arithmetic average of the quotations provided. Otherwise, the rate of LIBOR for the next Interest Period will be set equal to the rate of LIBOR for the then current Interest Period.

 

 

(l)   Notwithstanding Section 2.05(k), if the Company, in its sole discretion, determines that LIBOR has been permanently discontinued and the Company has notified the Calculation Agent of such determination (a " LIBOR Event "), the Calculation Agent will use, as directed by the Company, as a substitute for LIBOR (the " Alternative Rate ") for each future floating rate Interest Determination Date, the alternative reference rate selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee or working group thereof) that is consistent with market practice regarding a substitute for LIBOR. As part of such substitution, the Calculation Agent will, as directed by the Company, make such adjustments to the Alternative Rate or the spread thereon, as well as the business day convention, interest determination dates and related provisions and definitions (" Adjustments "), in each case that are consistent with market practice for the use of such Alternative Rate. Notwithstanding the foregoing, if the Company determines that there is no alternative reference rate selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee or working group thereof) that is consistent with market practice regarding a substitute for LIBOR, the Company may, in its sole discretion, appoint an independent financial advisor (" IFA ") to determine an appropriate Alternative Rate and any Adjustments, and the decision of the IFA will be conclusive and binding on the Company, the Calculation Agent, the Trustee and the Holders of Floating Rate Notes. If a LIBOR Event has occurred, but for any reason an Alternative Rate has not been determined or there is no such market practice for the use of such Alternative Rate (and, in each case, an IFA has not determined an appropriate Alternative Rate and Adjustments), the rate of LIBOR for the next Interest Period will be set equal to the rate of LIBOR for the then current Interest Period (for purposes hereof, this Section 2.05(l) will be referred to as the " LIBOR Alternative Rate Provision ").

(m)   The amount of interest for each day that the Floating Rate Notes of any series are Outstanding (the " Daily Interest Amount ") will be calculated by dividing the floating interest rate in effect for such day for such series by 360 and multiplying the result by the principal amount of the Floating Rate Notes of such series (known as the "Actual/360" day count). The amount of interest to be paid on the Floating Rate Notes for any Interest Period will be calculated by adding the Daily Interest Amounts for each day in such Interest Period.

(n)   Notwithstanding the foregoing or anything to the contrary provided herein, the interest rate on the Floating Rate Notes will be limited to the maximum rate permitted by New York law, as the same may be modified by United States law of general application.

(o)   All percentages resulting from any calculation of any interest rate for the Floating Rate Notes will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all U.S. dollar amounts will be rounded to the nearest cent, with one-half cent being rounded upward.

(p)   Upon prior written request from any Holder of the Floating Rate Notes, the Calculation Agent will provide the interest rate in effect on the Floating Rate Notes for the current Interest Period and, if it has been determined, the interest rate to be in effect for the next Interest Period.

 

 

Section 2.06   Place of Payment .  The place where the Senior Notes may be presented or surrendered for payment, where the Senior Notes may be surrendered for registration of transfer or exchange and where notices and demand to or upon the Company in respect of the Senior Notes and the Indenture may be served, shall be the Corporate Trust Office of the Trustee or the Paying Agent's office maintained for that purpose in the Borough of Manhattan, City of New York.

Section 2.07   Sinking Fund Obligations .  The Company has no obligation to redeem or purchase any Senior Notes pursuant to any sinking fund or analogous requirement.

Section 2.08   Denomination .  The Senior Notes shall be issued only in fully registered form, without coupons, in denominations of $2,000 and multiples of $1,000 in excess thereof.

Section 2.09   Currency .  Principal and interest on the Senior Notes shall be payable in such coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts.

Section 2.10   Security Registrar and Paying Agent for the Senior Notes .  The Trustee shall serve initially as the Security Registrar and the Paying Agent for the Senior Notes.

Section 2.11   Form of Senior Notes; Book Entry Provisions .

(a)   Each series of the Senior Notes shall be substantially in the form of the corresponding Annex attached hereto (other than, with respect to (x) any Additional Senior Notes of any series of the Senior Notes, changes related to issue date, issue price and first Interest Payment Date of such Additional Senior Notes and (y) any Exchange Notes of any series of the Senior Notes, changes related to legends, transfer restrictions, CUSIP/ISIN numbers and other changes customary for registered notes).  The Senior Notes may have notations, legends or endorsements required by law, rule or usage to which the Company is subject.  Each Senior Note shall be dated the date of its authentication.

(b)

(i)  The Initial Notes shall be offered and sold by the Company pursuant to the Purchase Agreement.  The Senior Notes shall be resold initially only (A) to persons reasonably believed to be QIBs in reliance on Rule 144A under the Securities Act or (B) outside the United States, to persons other than "U.S. persons" as defined in Rule 902 under the Securities Act in compliance with Regulation S.  Senior Notes may thereafter be transferred to, among others,  purchasers reasonably believed to be QIBs, and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein.  Senior Notes initially resold pursuant to Rule 144A shall be issued in the form of one or more permanent global securities in fully registered form (collectively, the " Rule 144A Global Note ") and Senior Notes initially resold pursuant to Regulation S shall be issued in the form of one or more permanent global securities in fully registered form (collectively, the " Regulation S Global Note "), in each case without interest coupons and with the Global Notes Legend and the applicable Restricted Notes Legend set forth in Section 2.12(d) hereof, which shall be deposited on behalf of the purchasers of the Senior Notes represented thereby with the Notes Custodian and registered in the name of the Depository or a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as provided in this Indenture.

(ii)

Beneficial interests in Regulation S Global Notes may be exchanged for interests in Rule 144A Global Notes of the same series if (1) such exchange occurs in connection with a transfer of Senior Notes in compliance with Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Note first delivers to the Trustee a written certificate (in the form of the Form of Exchange Certificate attached to the applicable Annex hereto) to the effect that the beneficial interest in the Regulation S Global Note, is being transferred to a Person (A) who the transferor reasonably believes to be a QIB, (B) purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (C) in accordance with all applicable securities laws of the States of the United States and other jurisdictions.

(iii)

Beneficial interests in Rule 144A Global Notes may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Note only if the transferor first delivers to the Trustee a written certificate (in the form of Exhibit A ) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S (if applicable).

(iv)

The Rule 144A Global Notes and the Regulation S Global Notes are collectively referred to herein as " Global Notes ".  The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.

(c)   This Section 2.11(c) shall apply only to a Global Note deposited with or on behalf of the Depository.

(i)

The Company shall execute and the Trustee shall, in accordance with this Section 2.11(c), authenticate and deliver initially one or more Global Notes that (A) shall be registered in the name of the Depository for such Global Note or the nominee of such Depository and (B) shall be delivered by the Trustee to such Depository or pursuant to such Depository's instructions or held by the Trustee as custodian for the Depository.

(ii)

Members of, or participants in, the Depository (" Agent Members ") shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depository or by the Trustee as the custodian of the Depository or under such Global Note, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.

 

 

(d)   Except as provided in Section 2.12 or 2.13 , owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.

(e)   The terms and provisions contained in the Senior Notes shall constitute, and are expressly made, a part of this Supplemental Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and agree to be bound thereby.  If there is any conflict between the terms of the Senior Notes and this Supplemental Indenture, the terms of this Supplemental Indenture shall govern.

(f)   The Senior Notes may be presented for registration of transfer and exchange at the offices of the Security Registrar.

Section 2.12   Special Transfer Provisions .

(a)   Transfer and Exchange of Definitive Notes .  When Definitive Notes are presented to the Security Registrar with a request:

(i)	to register the transfer of such Definitive Notes; or

(ii)

to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations, the Security Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:

(A)   shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and

(B)   are accompanied by the following additional information and documents, as applicable: (x) if such Definitive Notes are being delivered to the Security Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or (y) if such Definitive Notes are being transferred to the Company, a certification to that effect (in the form set forth on the reverse side of the Initial Note); or

(C)   if such Definitive Notes are being transferred pursuant to an exemption from registration in accordance with Rule 144 under the Securities Act or in reliance upon another exemption from the registration requirements of the Securities Act, (i) a certification to that effect (in the form set forth on the reverse side of the Initial Note) and (ii) if the Company or Security Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.12(e)(i) .

 

 

(b)   Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note .  A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.  Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar, together with:

(i)

certification (in the form set forth on the reverse side of the Initial Note) that such Definitive Note is being transferred (A) to a QIB in accordance with Rule 144A or (B) outside the United States in an offshore transaction within the meaning of Regulation S and in compliance with Rule 903 or Rule 904 under the Securities Act; and

(ii)

written instructions directing the Trustee to make, or to direct the Notes Custodian to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Senior Notes represented by the Global Note, such instructions to contain information regarding the Depository account to be credited with such increase, then the Trustee shall cancel such Definitive Note and cause, or direct the Notes Custodian to cause, in accordance with the standing instructions and procedures existing between the Depository and the Notes Custodian, the aggregate principal amount of Senior Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled.  If no Global Notes are then outstanding and the Global Note has not been previously exchanged for certificated securities pursuant to Section 2.13 , the Company shall issue and the Trustee shall authenticate, upon receipt of a Company order, a new Global Note in the appropriate principal amount.

(c)   Transfer and Exchange of Global Notes .

(i)

The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depository, in accordance with this Supplemental Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor.  A transferor of a beneficial interest in a Global Note shall deliver a written order given in accordance with the Depository's procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in such Global Note or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.  Transfers by an owner of a beneficial interest in a Rule 144A Global Note to a transferee who takes delivery of such interest through a Regulation S Global Note, whether before or after the expiration of the Restricted Period, shall be made only upon receipt by the Trustee of a certification from the transferor to the effect that such transfer is being made in accordance with Rule 903 or Rule 904 of Regulation S or (if available) Rule 144 under the Securities Act and that, if such transfer is being made prior to the expiration of the Restricted Period, the interest transferred shall be held immediately thereafter through Euroclear or Clearstream.

 

 

(ii)

If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.

(iii)

Notwithstanding any other provisions of this Supplemental Indenture (other than the provisions set forth in Section 2.13 ), a Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.

(iv)

In the event that a Global Note is exchanged for Definitive Notes pursuant to Section 2.13 prior to the consummation of the Registered Exchange Offer or the effectiveness of the shelf registration statement with respect to such Senior Notes, such Senior Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section (including the certification requirements set forth on the reverse of the Initial Notes intended to ensure that such transfers comply with Rule 144, Rule 144A, Regulation S or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.

(d)   Restrictions on Transfer of Regulation S Global Notes .

(i)

Prior to the expiration of the Restricted Period, interests in a Regulation S Global Note may only be held through Euroclear or Clearstream.  During the Restricted Period, beneficial ownership interests in a Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures and only (a) to the Company, (b) so long as such security is eligible for resale pursuant to Rule 144A, to a person whom the selling holder reasonably believes is a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, (c) in an offshore transaction in accordance with Regulation S, (d) pursuant to an available exemption from registration under the Securities Act or (e)  pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States; provided , however , that prior to the expiration of the Restricted Period, transfers of beneficial interests in a Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person.  Prior to the expiration of the Restricted Period, transfers by an owner of a beneficial interest in a Regulation S Global Note to a transferee who takes delivery of such interest through a Rule 144A Global Note shall be made only in accordance with the Applicable Procedures, pursuant to Rule 144 or 144A of the Securities Act and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse of the Initial Note to the effect that such transfer is being made to a person whom the transferor reasonably believes is a QIB within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A.  Such written certification shall no longer be required after the expiration of the Restricted Period.  In the case of a transfer of a beneficial interest in a Regulation S Global Note for an interest in a Rule 144A Global Note, the transferee must, at the request of the Company, deliver an opinion of counsel reasonably acceptable to the Company stating that the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

 

 

 

(ii)	Upon the expiration of the Restricted Period, beneficial ownership interests in a Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.

(e)   Legend .

(i)

Each Senior Note certificate evidencing the Global Notes (and all Senior Notes that Global Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only), which is an alternate legend as contemplated by Section 2.05 of the Base Indenture:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

(ii)

Except as permitted by the following paragraphs (iii), (iv), (v) or (vi) each Senior Note certificate evidencing the Global Notes and the Definitive Notes (and all Senior Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only):

 

 

 

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. 

BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER REPRESENTS THAT

(1) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A "QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR

(2) IT IS NOT A "U.S. PERSON" AND IS OUTSIDE OF THE UNITED STATES (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT).

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 [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (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, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) 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.

 

 

Each Senior Note evidencing a Global Note offered and sold to QIBs pursuant to Rule 144A shall bear a legend in substantially the following form:

EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

Each Definitive Note shall bear the following additional legend:

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

(iii)

Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Security Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the legends set forth above and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Security Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Initial Note).

(iv)

After a transfer of any Initial Notes during the period of the effectiveness of a shelf registration statement with respect to such Initial Notes, as the case may be, all requirements pertaining to the Restricted Notes Legend on such Initial Notes shall cease to apply and the requirements that any such Initial Notes be issued in global form shall continue to apply.

(v)

Upon the consummation of a Registered Exchange Offer with respect to the Initial Notes pursuant to which Holders of such Initial Notes are offered Exchange Notes in exchange for their Initial Notes, all requirements pertaining to Initial Notes that Initial Notes be issued in global form shall continue to apply, and Exchange Notes in global form without the Restricted Notes Legend shall be available to Holders that exchange such Initial Notes in such Registered Exchange Offer.

(vi)

Upon a sale or transfer after the expiration of the Restricted Period of any Initial Note acquired pursuant to Regulation S, all requirements that such Initial Note bear the Restricted Notes Legend shall cease to apply and the requirements requiring any such Initial Note be issued in global form shall continue to apply.

 

 

(f)   Cancellation or Adjustment of Global Note .  At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by the Depository to the Trustee for cancellation or retained and canceled by the Trustee.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.

(g)   Obligations with Respect to Transfers and Exchanges of Notes .

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

(ii)

No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Section 9.06 or 11.06 of the Base Indenture).

(h)   Prior to the due presentation for registration of transfer of any Senior Note, the Company, the Trustee, the Paying Agent or the Security Registrar may deem and treat the person in whose name a Senior Note is registered as the absolute owner of such Senior Note for the purpose of receiving payment of principal of and interest on such Senior Note and for all other purposes whatsoever, whether or not such Senior Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.

(i)   The Company shall not be required to make and the Security Registrar need not register transfers or exchanges of Senior Notes selected for redemption (except, in the case of Notes to be redeemed in part, the portion thereof not to be redeemed) or any Senior Notes for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed.

(j)   All Senior Notes issued upon any transfer or exchange pursuant to the terms of this Supplemental Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as the Senior Notes surrendered upon such transfer or exchange.

(k)   No Obligation of the Trustee .

(i)

The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depository or any other Person with respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Senior Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Senior Notes.  All notices and communications to be given to the Holders and all payments to be made to Holders under the Senior Notes shall be given or made only to the registered Holders (which shall be the Depository or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through the Depository subject to the applicable rules and procedures of the Depository.  The Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners.

 

 

 

(ii)

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

Section 2.13   Definitive Notes .

(a)   A Global Note deposited with the Depository or with the Trustee as Notes Custodian for the Depository pursuant to Section 2.11 hereof shall be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.12 hereof and if  (x) such Depository notifies the Company that it is unwilling or unable to continue as Depository for the series of Securities of which this Security is a part or at any time ceases to be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, and a successor depository is not appointed by the Company within 90 days, (y) the Company executes and delivers to the Trustee a Company order that this Global Security shall be so exchangeable or (z) there shall have occurred and be continuing an Event of Default with respect to the Securities of which this Security is a part and the Depository notifies the Trustee of its decision to exchange any Global Securities of such series for Securities registered in the names of Persons other than the Depository.

(b)   Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section shall be surrendered by the Depository to the Trustee at the Corporate Trust Office of the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.  Any portion of a Global Note transferred pursuant to this Section shall be executed, authenticated and delivered only in denominations of US$2,000 principal amount or any integral multiple of US$1,000 in excess thereof and registered in such names as the Depository shall direct.  Any Definitive Note delivered in exchange for an interest in the Transfer Restricted Note shall, except as otherwise provided by Section 2.12(d) hereof, bear the applicable Restricted Notes Legend set forth in Section 2.12(d) hereof.

 

 

 

(c)   Subject to the provisions of Section 2.13(b)   hereof, the registered Holder of a Global Note shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Senior Notes.

(d)   In the event of the occurrence of one of the events specified in Section 2.13(a) hereof, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in definitive, fully registered form without interest coupons.  In the event that the Definitive Notes are not issued to each such beneficial owner promptly after the Security Registrar has received a request from the Holder of a Global Note to issue such Definitive Note, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Article V of the Base Indenture (as modified herein), the right of any beneficial Holder of Senior Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial Holder's Senior Notes as if such Definitive Notes had been issued.

(e)   By its acceptance of any Senior Note bearing any legend in Section 2.12(d) , each Holder of such Senior Note acknowledges the restrictions on transfer of such Senior Note set forth in this Indenture and in such legend in Section 2.13(d) and agrees that it shall transfer such Senior Note only as provided in this Indenture.

(f)   The Security Registrar shall retain for a period of two years copies of all letters, notices and other written communications received pursuant to Section 2.11 or this Section 2.12 .  The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable notice to the Security Registrar.

Section 2.14   Change of Control Offer .

(a)   If a Change of Control Triggering Event occurs with respect to any series of the Senior Notes, unless the Company has exercised its right to redeem such Senior Notes, in full, the Company will make an offer to each Holder (the " Change of Control Offer ") of Senior Notes of such series to repurchase any and all of such Holder's Senior Notes of such series, at a repurchase price in cash equal to 101% of the aggregate principal amount of the Senior Notes of such series repurchased plus accrued and unpaid interest, if any, thereon to, but excluding, the date of repurchase (the " Change of Control Payment "). Within thirty (30) days following any Change of Control Triggering Event, the Company will mail (or otherwise deliver in accordance with the applicable procedures of the Depository) a notice to Holders of Senior Notes describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Senior Notes on the date specified in the notice, which date will be no less than fifteen (15) days and no more than sixty (60) days from the date such notice is mailed (or otherwise delivered in accordance with the applicable procedures of the Depository) (the " Change of Control Payment Date "), pursuant to the procedures required by the Senior Notes, and described in such notice.

(b)   The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the " Exchange Act "), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Senior Notes as a result of a Change of Control Triggering Event.  To the extent that the provisions of any securities laws or regulations conflict with this Section, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section by virtue of such conflicts.

 

 

 

(c)   The Company will not be required to offer to repurchase the Senior Notes upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party repurchases on the applicable date all Senior Notes properly tendered and not withdrawn under its offer; provided that for all purposes of the Senior Notes and the Indenture, a failure by such third party to comply with the requirements of such offer and to complete such offer shall be treated as a failure by the Company to comply with its obligations to offer to purchase the Senior Notes unless the Company promptly makes an offer to repurchase the Senior Notes at 101% of the principal amount thereof plus accrued and unpaid interest, if any, thereon, to the date of repurchase, which shall be no later than thirty (30) days after the third party's scheduled Change of Control Payment Date.

(d)   On the Change of Control Payment Date, the Company will, to the extent lawful:

(i)	accept or cause a third party to accept for payment all Senior Notes properly tendered pursuant to the Change of Control Offer;

(ii)	deposit or cause a third party to deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Senior Notes properly tendered; and

(iii)

deliver or cause to be delivered to the Trustee the Senior Notes properly accepted, together with an Officers' Certificate stating the principal amount of the Senior Notes being purchased.

(e)   For the purposes of this Section, the terms below are defined as follows:

" Below Investment Grade Rating Event " with respect to any series of Senior Notes means such Senior Notes are rated below all Investment Grade Ratings by at least two of the three Rating Agencies on any date from the earlier of (1) the occurrence of a Change of Control and (2) public notice of the Company's intention to effect a Change of Control, in each case until the end of the 60-day period following public notice of the occurrence of the Change of Control; provided , however , that if (a) during such 60-day period, one or more Rating Agencies has publicly announced that it is considering the possible downgrade of such series of Senior Notes, and (b) a downgrade by each of the Rating Agencies that has made such an announcement would result in a Below Investment Grade Rating Event, then such 60-day period shall be extended for such time as the rating of such series of Senior Notes by any such Rating Agency remains under publicly announced consideration for possible downgrade to a rating below an Investment Grade Rating and a downgrade by such Rating Agency to a rating below an Investment Grade Rating could cause a Below Investment Grade Rating Event. Notwithstanding the foregoing, a rating event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a rating event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company's or the Trustee's request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the rating event).

 

 

" Change of Control " means the occurrence of any of the following:  (1) direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any " person " (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its subsidiaries; or (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any " person " (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or one of its subsidiaries becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company's voting stock; provided , however , that (i) a transaction will not be deemed to involve a Change of Control if (A) the Company becomes a wholly owned subsidiary of a holding company and (B)(x) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Company's voting stock immediately prior to that transaction or (y) immediately following that transaction no Person is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company and (ii) in no event will either of (A) the Acquisition or any transaction undertaken in connection therewith or (B) the Required Merger be deemed to involve a Change of Control. For purposes of this definition, " voting stock " of a person means capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right to vote has been suspended by the happening of such a contingency

" Change of Control Triggering Event " means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

" Fitch " means Fitch Ratings Inc. and any successor to its rating agency business.

" Investment Grade Rating " means a rating by Moody's equal to or higher than Baa3 (or the equivalent under a successor rating category of Moody's), a rating by S&P equal to or higher than BBB- (or the equivalent under any successor rating category of S&P), a rating by Fitch equal to or higher than BBB- (or the equivalent under any successor rating category of Fitch), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by the Company under the circumstances permitting the Company to select a replacement agency and in the manner for selecting a replacement agency, in each case as set forth in the definition of "Rating Agencies".

 

 

 

" Moody's " means Moody's Investors Service, Inc. and any successor to its rating agency business.

" Rating Agencies " means (1) Moody's, S&P and Fitch; and (2) if any or all of Moody's, S&P or Fitch ceases to rate any series of the Senior Notes or fails to make a rating of any series of the Senior Notes publicly available for reasons outside of the Company's control, a " nationally recognized statistical rating organization " within the meaning of Section 3(a)(62) of the Exchange Act, that the Company selects (pursuant to a resolution of the Company's Board of Directors) as a replacement agency for any of Moody's, S&P or Fitch, or all of them, as the case may be, with respect to such series of the Senior Notes, as applicable.

" S&P " means Standard & Poor's Ratings Services, a Standard & Poor's Financial Services LLC business and any successor to its rating agency business.

Section II.15   Optional Redemption .

(a)   At any time prior to (i) the Par Call Date (as defined below) in respect of a series of Fixed Rate Notes other than the 2-Year Fixed Rate Notes and the 3-Year Fixed Rate Notes and (ii) the Stated Maturity with respect to the 2-Year Fixed Rate Notes and the 3-Year Fixed Rate Notes, the Company may redeem Fixed Rate Notes of such series, in whole or in part, at a redemption price equal to the greater of (i) 100% of the principal amount of the Fixed Rate Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest (excluding interest accrued to the Redemption Date) on the Fixed Rate Notes to be redeemed from the Redemption Date to either (A) the Par Call Date of such series of Fixed Rate Notes other than the 2-Year Fixed Rate Notes or the 3-Year Fixed Rate Notes or (B) the Stated Maturity in the case of the 2-Year Fixed Rate Notes and the 3-Year Fixed Rate Notes, in each case, discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Rate plus the Make-Whole Basis Points applicable to such series of Fixed Rate Notes, plus, in each case, accrued and unpaid interest, if any, on the principal amount of the Fixed Rate Notes being redeemed to but excluding the Redemption Date (the " Fixed Rate Make Whole Redemption Price ").

(b)   Subject to the immediately following sentence, at any time on or after the Par Call Date in respect of a series of Senior Notes, the Company may redeem Senior Notes of such series, in whole or in part, at a redemption price equal to 100% of the principal amount of the Senior Notes being redeemed, plus any interest accrued but not paid to, but excluding, the Redemption Date (such redemption, a " Par Call "). The 18-Month Floating Rate Notes, the 2-Year Fixed Rate Notes and the 3-Year Fixed Rate Notes shall not be subject to a Par Call.

(c)   In the event of a redemption where the Fixed Rate Make Whole Redemption Price is payable, the Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.

(d)   Notice of redemption shall be mailed or otherwise delivered in accordance with the applicable procedures of the Depository in accordance with Section 11.04 of the Base Indenture at least fifteen (15) but not more than sixty (60) days before the Redemption Date, to each Holder of the Senior Notes to be redeemed.  If less than all of the Senior Notes then Outstanding of any series are to be redeemed, the Trustee will select the particular Senior Notes or portions thereof in accordance with Section 11.03 of the Base Indenture.

 

 

(e)   For the purposes of this Section, the terms below are defined as follows:

" Comparable Treasury Issue " means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Fixed Rate Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Fixed Rate Notes to be redeemed (assuming, for this purpose, that such Fixed Rate Notes mature on the Par Call Date applicable thereto).

" Comparable Treasury Price " means, with respect to any Redemption Date for any Fixed Rate Notes, the average of all Reference Treasury Dealer Quotations obtained by the Company.

" Independent Investment Banker " means one of the Reference Treasury Dealers appointed by the Company from time to time.

" Make-Whole Basis Points " in respect of a series of Fixed Rate Notes means the number of basis points set forth below under the heading "Make-Whole Basis Points" across from the name of such series of Fixed Rate Notes.

" Par Call Date " in respect of a series of Senior Notes means the date set forth under the heading "Par Call Date" below across from the name of such series of Senior Notes.

 

 

 

" Primary Treasury Dealer " means a primary U.S. government securities dealer in the United States.

" Reference Treasury Dealer " means each of Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities LLC and Citigroup Global Markets Inc. and their respective successors; provided , however , that if any Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer for that dealer.

" Reference Treasury Dealer Quotations " means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third (3 ^rd ) Business Day preceding such Redemption Date.

" Treasury Rate " means, with respect to any Redemption Date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated " H.15 " or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption " Treasury Constant Maturities, " for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Stated Maturity for the Senior Notes to be redeemed yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release referred to in Clause (1) (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 semi-annual 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 such Redemption Date.

Section 2.16   Special Mandatory Redemption .

(a)   If (x) the consummation of the Acquisition does not occur on or before September 4, 2019 or (y) the Company notifies the Trustee that the Company will not pursue the consummation of the Acquisition (the " Special Mandatory Redemption Trigger Date "), the Company will be required to redeem the Mandatorily Redeemable Notes then outstanding (such redemption, the " Special Mandatory Redemption ") at a redemption price equal to 101% of the principal amount of the Mandatorily Redeemable Notes plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (the " Special Mandatory Redemption Price "). The 30-Year Fixed Rate Notes are not subject to the Special Mandatory Redemption.

 

 

(b)   In the event that the Company becomes obligated to redeem the Mandatorily Redeemable Notes pursuant to the Special Mandatory Redemption, the Company will promptly, and in any event not more than five (5) business days after the Special Mandatory Redemption Trigger Date, deliver notice to the Trustee of the Special Mandatory Redemption and the date upon which such Mandatorily Redeemable Notes will be redeemed (the " Special Mandatory Redemption Date ," which date shall be no later than the third (3rd) Business Day following the date of such notice) together with a notice of Special Mandatory Redemption for the Trustee to deliver to each registered Holder of Mandatorily Redeemable Notes to be redeemed.  The Trustee will then promptly mail, or electronically deliver, according to the procedures of the Depository, such notice of Special Mandatory Redemption to each registered Holder of Mandatorily Redeemable Notes to be redeemed.  Unless the Company defaults in payment of the Special Mandatory Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Mandatorily Redeemable Notes to be redeemed.

(c)   Notwithstanding the foregoing, installments of interest on any series of Mandatorily Redeemable Notes that are due and payable on Interest Payment Dates falling on or prior to the Special Mandatory Redemption Date will be payable on such Interest Payment Dates to the registered Holders as of the close of business on the relevant record dates in accordance with the Mandatorily Redeemable Notes and the Indenture.

(d)   For the avoidance of doubt, Article XI of the Base Indenture shall not apply to the Special Mandatory Redemption.

Section 2.17   Segregated Collateral Accounts .

(a)   Substantially concurrently with the initial issuance of the Senior Notes, the Company will deposit into one or more segregated accounts (any such segregated collateral account into which the amounts described in this sentence are deposited on such date or transferred thereafter, the " Segregated Collateral Accounts ") cash equal to the net proceeds of the offering of the Mandatorily Redeemable Notes, plus additional cash that would be necessary to fund the redemption of the Mandatorily Redeemable Notes at the Special Mandatory Redemption Price and pay accrued and unpaid interest on the Mandatorily Redeemable Notes to, but excluding September 16, 2019 (such cash, such accounts and any other property held in such accounts, the " Pledged Property "). The Company will grant to the Trustee, for the benefit of the Trustee and the Holders of the Mandatorily Redeemable Notes, a security interest in the Pledged Property to secure the Company's payment obligations under the Mandatorily Redeemable Notes until the Trigger Date, as set forth in the Security Agreement.  Each Segregated Collateral Account will be subject to a control agreement (each, an " Account Control Agreement ") that will perfect such security interest.  By its acceptance of any Mandatorily Redeemable Note, each Holder consents and agrees to the terms of each of the Security Agreement and any Account Control Agreement (including, without limitation, the provisions providing for remedies with respect to, or the release of, Pledged Property) as the same may be in effect or may be amended from time to time in accordance with its terms and authorizes and directs the Trustee to enter into any such documents and perform it obligations and exercise its rights thereunder in accordance therewith.

(b)   Each Account Control Agreement will provide that (i) the bank holding the applicable Segregated Collateral Account is obligated to follow the instructions of the Company prior to receiving a notice of exclusive control from the Trustee and (ii) after a bank holding a Segregated Collateral Account has received a notice of exclusive control from the Trustee, and had reasonable time to comply with it, the bank will be obligated pursuant to the applicable Account Control Agreement to follow only the instructions of the Trustee and not the Company. The Trustee shall deliver a notice of exclusive control to each bank holding a Segregated Collateral Account in the event that (a) the Company fails to redeem the Mandatorily Redeemable Notes at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date (a " Redemption Exclusive Control Trigger Event ") or (b) an Event of Default arising from a failure to comply in any material respect with any obligation of the Company described in Section 2.19 hereof occurs and is continuing (a " Use of Proceeds Exclusive Control Trigger Event ").

(c)   The Trustee's lien on the Pledged Property will be released, and the Security Agreement shall be terminated, immediately and automatically upon the earlier to occur of (i) the Trigger Date and (ii) the date on which the Secured Obligations (as defined in the Security Agreement) have been paid in full (other than any contingent indemnification obligations for which claims have not yet been made).

(d)   The Trustee shall terminate the Account Control Agreement relating to each Segregated Collateral Account upon or promptly following the Trigger Date.

(e)   The rights and remedies of the Trustee set forth in the Security Agreement shall be cumulative and in addition to every other right and remedy given under the Indenture.  The proceeds received by the Trustee as secured party under the Security Agreement in respect of any Pledged Property shall be applied as set forth in the Security Agreement.

Section 2.18   Required Merger .  In the event that the Special Mandatory Redemption Date occurs, the Company shall, by a date no later than the earlier of (x) the date that is twenty (20) business days following the Special Mandatory Redemption Date and (y) September 17, 2019, merge with and into Cigna (such merger, the " Required Merger "); provided that the Company shall not be required to consummate the Required Merger if the Acquisition has been consummated.

Section 2.19   Use of Proceeds Pending Trigger Date .

(a)   From September 17, 2018 until the Trigger Date, the Company shall not use the cash or other assets in any Segregated Collateral Accounts other than to invest in Permitted Investments, to pay interest or satisfy other obligations with respect to the Mandatorily Redeemable Notes when due under the Indenture or to pay fees and expenses and satisfy other obligations under the Company's agreements with any custodian or other counterparty to any agreement relating to the administration of any Segregated Collateral Account.

(b)   For the purposes hereof, " Permitted Investments " means:

 

 

(i)	U.S. dollars;

(ii)	securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof in each case maturing not more than two years from the date of acquisition;

(iii)

certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances, in each case with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $250.0 million and whose long-term debt is rated "A" or the equivalent thereof by Moody's or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency);

(iv)	repurchase obligations for underlying securities of the types described in Clauses (i) and (ii) above entered into with any financial institution meeting the qualifications specified in Clause (iii) above;

(v)

commercial paper issued by a person (other than an affiliate of the Company) rated at least "A-1" or the equivalent thereof by Moody's or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing within one year after the date of acquisition;

(vi)

readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having at least a rating of Aa3 from Moody's or a rating of AA- from S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition; and

(vii)

investment funds following Rule 2A-7 guidelines as defined by the SEC and rated AAAmf by Moody's, or AAAm by S&P, or AAAmmf by Fitch.

Section 2.20   Future Guarantors .

In the event that the Acquisition is consummated prior to the consummation of the Required Merger, the Company shall cause each of Cigna and Express Scripts to promptly execute and deliver to the Trustee a supplemental indenture of the type contemplated by Section 4.06 hereof, whereupon such entities shall each become a Guarantor for all purposes under the Indenture.

ARTICLE III

AMENDMENTS TO BASE INDENTURE

 

Section 3.01   Amendment to Section 5.01 of the Base Indenture .

Solely as it relates to the Senior Notes, Section 5. 01 of the Base Indenture is hereby amended by replacing it with the following:

 

 

 

Section 5.01   Events of Default .

" Event of Default ," wherever used herein with respect to the Senior Notes of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(1)	default in the payment of any interest upon any Senior Note of that series when it becomes due and payable, and continuance of such default for a period of thirty (30) days; or

(2)	default in the payment of the principal of (or premium, if any, on) any Senior Note of that series at its Maturity; or

(3)	[reserved];

(4)

default in the performance, or breach, of any covenant or warranty of the Company in this Indenture in any material respect (other than a covenant or warranty a default in the performance of which or the breach of which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Senior Notes other than that series), and continuance of such default or breach for a period of ninety (90) days after there has been given, by overnight mail or other same day or overnight delivery service which can provide evidence of delivery, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25.0% in principal amount of the Outstanding Senior Notes of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a " Notice of Default " hereunder; or

(5)

the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of all or substantially all of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of ninety (90) consecutive days; or

(6)

the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of all or substantially all of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due; or

(7)	any default in the performance, or breach, in any material respect with any obligation of the Company set forth in Section 2.16 , 2.17 , 2.18 or 2.19 of the Supplemental Indenture; or

(8)

any Guarantee with respect to such series of Senior Notes is not issued as required under Section 2.20 of the Supplemental Indenture or ceases to be in full force and effect (except as contemplated by the terms thereof) or any Guarantor asserts in writing that its obligations under its Guarantee with respect to such series of Senior Notes has ceased to be or otherwise is not in full force and effect (except as contemplated by the terms thereof), and such Guarantee has not been issued or returned to full force and effect within, or such assertion has not be rescinded, by the date that is ten (10) days after receipt of a specified written notice to the Company from the Trustee or a Holder of outstanding Senior Notes of any relevant series of Senior Notes; or

(9)

prior to the Trigger Date, the security interest granted in the Pledged Property held in the Segregated Collateral Accounts to secure the Company's obligations under the Mandatorily Redeemable Notes (a) ceases to be in full force and effect (other than in accordance with its terms) or (b) is asserted by the Company in writing not to be a valid, perfected security interest (other than in accordance with its terms) (each of (a) and (b), a " Collateral Default ") and such Collateral Default continues for a period of ten (10) days after receipt of a specified written notice to the Company from the Trustee or a Holder of outstanding Senior Notes of any relevant series of Senior Notes.

Section 3.02   Amendment to Section 6.03 of the Base Indenture

Solely as it relates to the Senior Notes, Section 6.03 of the Base Indenture shall be amended by:

(1)	deleting the "and" at the end of clause (l) thereof;

(2)	deleting the "." at the end of clause (m) thereof;

(3)	and adding a new clause (n) that states, "the Trustee shall have no liability as a result of losses suffered due to the lack of an applicable rate of interest or in connection with the use of an Alternative Rate."

Section 3.03   Amendment to Section 8.01 of the Base Indenture .

 

 

Solely as it relates to the Senior Notes, Section 8.01 of the Base Indenture is hereby amended by replacing it with the following:

Section 8.01.   Company May Consolidate, Etc., Only on Certain Terms.

The Company shall not consolidate with or merge with or into any other Person (other than in a merger or consolidation in which the Company is the surviving Person) or sell its properties and assets as, or substantially as, an entirety to any Person, unless:

(1)

the Person formed by the consolidation or with or into which the Company is merged or the Person that purchases the properties and assets of the Company as, or substantially as, an entirety a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume the due and punctual payment of the principal of and any premium and interest on the Senior Notes and the performance of every covenant of this Indenture on the part of the Company to be performed or observed, by supplemental indenture reasonably satisfactory in form to the Trustee, executed and delivered to the Trustee;

(2)	other than in the case of the Required Merger, immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and

(3)

the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, or sale and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

Section 3.04   Amendment to Section 9.01 of the Base Indenture .

Solely as it relates to the Senior Notes, Section 9.01 of the Base Indenture is hereby amended by replacing it with the following:  

Section 9.01   Supplemental Indentures without Consent of Holders .

Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto or other instruments, in form reasonably satisfactory to the Trustee, for any of the following purposes:

(1)	to evidence the succession of another corporation to the Company and the assumption by any such successor of the obligations of the Company herein and in the Senior Notes; or

(2)

to add to the covenants of the Company for the benefit of the Holders of all or any series of Senior Notes (and if such covenants are to be for the benefit of less than all series of Senior Notes, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power of the Company under the Indenture, the Senior Notes, any Guarantee, the Security Agreement or any Account Control Agreement; or

 

 

(3)	to add any additional Events of Default; or

(4)

to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Senior Notes in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Senior Notes in uncertificated form; or

(5)

to add to, change or eliminate any of the provisions of this Indenture, the Senior Notes, any Guarantee, the Security Agreement or any Account Control Agreement, provided that any such addition, change or elimination (i) shall neither (A) apply to any Senior Note of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Senior Note with respect to such provision or (ii) shall become effective only when there is no such Senior Note Outstanding; or

(6)	to secure the Senior Notes pursuant to the requirements of Section 10.05 or otherwise or to perfect the security interest securing the Company's obligations in respect of the Senior Notes; or

(7)	to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01 ; or

(8)

to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Senior Notes of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b) ; or

(9)

to add any provision to or change or supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of previously issued and Outstanding Senior Notes pursuant to Section 10.06 , provided that any such action shall not adversely affect the interests of the Holders of Senior Notes of such series or any other series of Senior Notes in any material respect; or

(10)

to cure any ambiguity, to correct or supplement any provision in the Indenture, any Guarantee, the Security Agreement or the Account Control Agreement which may be inconsistent with any other provision of the Indenture, any Guarantee, the Security Agreement or the Account Control Agreement , or to make any other provisions with respect to matters or questions arising thereunder, provided that such action pursuant to this Clause (10) shall not adversely affect the interests of the Holders of Senior Notes of any affected series in any material respect; or

 

 

(11)	to provide for the guarantee by any Person of any series of previously issued and Outstanding Senior Notes;

(12)	to make any change of the type described in the LIBOR Alternative Rate Provision;

(13)	to conform the text of the Indenture, the Senior Notes, the Guarantees, the Security Agreement or any Account Control Agreement to any provision of the Offering Memorandum; or

(14)	to conform the Indenture, the Senior Notes, the Guarantees, the Security Agreement or any Account Control Agreement to any mandatory provisions of law.

Section 3.05   Amendment to Section 9.02 of the Base Indenture .

Solely as it relates to the Senior Notes, Section 9.02 of the Base Indenture is hereby amended by replacing it with the following:  

Section 9.02   Supplemental Indentures with Consent of Holders .

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Senior Notes of each series affected by such supplemental indenture or other instrument, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto or any other instrument for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Senior Notes of such series under this Indenture or otherwise; provided , however , that no such supplemental indenture or other instrument shall, without the consent of the Holder of each Outstanding Senior Note affected thereby,

(1)

change the Stated Maturity (as defined in the Base Indenture) of the principal of, or any installment of principal of or (subject to the LIBOR Alternative Rate Provision) interest on, any Senior Note, or reduce the principal amount thereof or (subject to the LIBOR Alternative Rate Provision) the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Stated Maturity (as defined in the Base Indenture) thereof pursuant to Section 5.02 of the Base Indenture, or change any Place of Payment where, or the coin or currency in which, any Senior Note or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity (as defined in the Base Indenture) thereof (or, in the case of redemption, on or after the Redemption Date), or