Exhibit 4.1

 

EXECUTION VERSION

 

MAPLE ESCROW SUBSIDIARY, INC.

 

and

 

WELLS FARGO BANK, N.A.,

as Trustee

 

INDENTURE

 

Dated as of May 25, 2018

 

SENIOR DEBT SECURITIES

 

 

TABLE OF CONTENTS

 

ARTICLE I	Definitions and Incorporation by Reference	1
Section 1.1	Definitions	1
Section 1.2	Other Definitions	3
Section 1.3	Incorporation by Reference of Trust Indenture Act	3
Section 1.4	Rules of Construction	4
ARTICLE II	The Securities	4
Section 2.1	Form, Dating and Terms	4
Section 2.2	Denominations	5
Section 2.3	Forms Generally	5
Section 2.4	Execution, Authentication, Delivery and Dating	5
Section 2.5	Registrar and Paying Agent	6
Section 2.6	Paying Agent to Hold Money in Trust	6
Section 2.7	Holder Lists	7
Section 2.8	Transfer and Exchange	7
Section 2.9	Mutilated, Destroyed, Lost or Wrongfully Taken Securities	7
Section 2.10	Outstanding Securities	7
Section 2.11	Cancellation	8
Section 2.12	Payment of Interest; Defaulted Interest	8
Section 2.13	Temporary Securities	8
Section 2.14	Persons Deemed Owners	8
Section 2.15	Computation of Interest	9
Section 2.16	Global Securities; Book-Entry Provisions	9
Section 2.17	CUSIP Numbers, Etc.	9
Section 2.18	Original Issue Discount and Foreign-Currency Denominated Securities	10
ARTICLE III	Covenants	10
Section 3.1	Payment of Securities	10
Section 3.2	Reports	10
Section 3.3	Maintenance of Office or Agency	10
Section 3.4	Corporate Existence	10
Section 3.5	Compliance Certificate	10
Section 3.6	Statement by Officer as to Default	11
Section 3.7	Additional Amounts	11
ARTICLE IV	Successors	11
Section 4.1	Merger, Consolidation or Sale of Assets	11
ARTICLE V	Redemption of Securities	11
Section 5.1	Applicability of Article	11
Section 5.2	Election to Redeem; Notice to Trustee	11
Section 5.3	Selection by Trustee of Securities to Be Redeemed	11
Section 5.4	Notice of Redemption	12
Section 5.5	Deposit of Redemption Price	12
Section 5.6	Securities Payable on Redemption Date	12
Section 5.7	Securities Redeemed in Part	12
ARTICLE VI	Defaults and Remedies	13
Section 6.1	Events of Default	13
Section 6.2	Acceleration	13

 

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Section 6.3	Other Remedies	13
Section 6.4	Waiver of Past Defaults	14
Section 6.5	Control by Majority	14
Section 6.6	Limitation on Suits	14
Section 6.7	Rights of Holders to Receive Payment	14
Section 6.8	Collection Suit by Trustee	14
Section 6.9	Trustee May File Proofs of Claim	14
Section 6.10	Priorities	14
Section 6.11	Undertaking for Costs	15
ARTICLE VII	Trustee	15
Section 7.1	Duties of Trustee	15
Section 7.2	Rights of Trustee	15
Section 7.3	Individual Rights of Trustee	16
Section 7.4	Trustee’s Disclaimer	16
Section 7.5	Notice of Defaults	16
Section 7.6	Reports by Trustee to Holders	16
Section 7.7	Compensation and Indemnity	16
Section 7.8	Replacement of Trustee	17
Section 7.9	Successor Trustee by Merger	17
Section 7.10	Eligibility; Disqualification	18
Section 7.11	Preferential Collection of Claims Against Issuer	18
ARTICLE VIII	Legal Defeasance and Covenant Defeasance	18
Section 8.1	Option to Effect Legal Defeasance or Covenant Defeasance	18
Section 8.2	Legal Defeasance and Discharge	18
Section 8.3	Covenant Defeasance	18
Section 8.4	Conditions to Legal or Covenant Defeasance	18
Section 8.5	Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions	19
Section 8.6	Repayment to Issuer	19
Section 8.7	Reinstatement	19
ARTICLE IX	Amendments	20
Section 9.1	Without Consent of Holders	20
Section 9.2	With Consent of Holders	20
Section 9.3	Compliance with Trust Indenture Act	21
Section 9.4	Revocation and Effect of Consents and Waivers	21
Section 9.5	Notation on or Exchange of Securities	21
Section 9.6	Trustee To Sign Amendments	21
ARTICLE X	Securities Guarantee	21
Section 10.1	Securities Guarantee	21
Section 10.2	Execution and Delivery of Securities Guarantees; Notations of Guarantees	22
Section 10.3	Limitation on Liability; Termination, Release and Discharge	23
Section 10.4	Limitation of Guarantors’ Liability	23
Section 10.5	Contribution	23
Section 10.6	Guarantors May Consolidate, etc., on Certain Terms	23
ARTICLE XI	Satisfaction and Discharge	23
Section 11.1	Satisfaction and Discharge	23
ARTICLE XII	Miscellaneous	24

 

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Section 12.1	Trust Indenture Act Controls	24
Section 12.2	Notices	24
Section 12.3	Communication by Holders with other Holders	24
Section 12.4	Certificate and Opinion as to Conditions Precedent	24
Section 12.5	Statements Required in Certificate or Opinion	25
Section 12.6	When Securities Disregarded	25
Section 12.7	Rules by Trustee, Paying Agent and Registrar	25
Section 12.8	Legal Holidays	25
Section 12.9	GOVERNING LAW; WAIVER OF JURY TRIAL	25
Section 12.10	No Recourse Against Others	25
Section 12.11	Successors	25
Section 12.12	Multiple Originals	25
Section 12.13	Severability	25
Section 12.14	No Adverse Interpretation of Other Agreements	25
Section 12.15	Table of Contents; Headings	25
Section 12.16	Force Majeure	25
Section 12.17	U.S.A. Patriot Act	26

 

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CROSS-REFERENCE TABLE

 

TIA		Indenture
Section		Section
310(a)(1)		7.10
(a)(2)		7.10
(a)(3)		N.A.
(a)(4)		N.A.
(b)		7.8; 7.10
(c)		N.A.
311(a)		7.11
(b)		7.11
(c)		N.A.
312(a)		2.7
(b)		12.3
(c)		12.3
313(a)		7.6
(b)(1)		7.6
(b)(2)		7.6
(c)		7.6
(d)		7.6
314(a)		3.2; 3.5; 12.2
(b)		N.A.
(c)(1)		12.4
(c)(2)		12.4
(c)(3)		N.A.
(d)		N.A.
(e)		12.5
315(a)		7.1
(b)		7.5; 12.2
(c)		7.1
(d)		7.1
(e)		6.11
316(a)(last sentence)		12.6
(a)(1)(A)		6.5
(a)(1)(B)		6.4
(a)(2)		N.A.
(b)		6.7
317(a)(1)		6.8
(a)(2)		6.9
(b)		2.6
318(a)		12.1

 

N.A. means Not Applicable.

 

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

 

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THIS INDENTURE, dated as of May 25, 2018, is entered into by and between MAPLE ESCROW SUBSIDIARY, INC., a Delaware corporation (the “ Issuer ”), and WELLS FARGO BANK, N.A., a national banking association, as trustee (the “ Trustee ”).

 

W I T N E S S E T H :

 

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

 

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

 

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

 

NOW, THEREFORE:

 

In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:

 

ARTICLE I

 

Definitions and Incorporation by Reference

 

Section 1.1                                     Definitions .

 

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

 

“ Additional Interest ” means any additional interest required to be paid on the Securities.

 

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

 

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

 

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

 

(1)		with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(2)		with respect to a partnership, the board of directors of the general partner of the partnership;
(3)		with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4)		with respect to any other Person, the board or committee of such Person serving a similar function.

 

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the applicable Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“ Business Day ” means any day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or another place of payment on the Securities of that series are authorized or required by law to close.

 

“ Capital Stock ” means:

 

(1)		in the case of a corporation, corporate stock;
(2)		in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3)		in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4)		any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“ Company Order ” means a written order signed in the name of the Issuer by an Officer of the Issuer, and delivered to the Trustee.

 

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

 

“ Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

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

 

 

“Depositary” shall mean or include that successor.

 

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

 

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

 

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

 

“ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Public Company Accounting Oversight Board (U.S.) and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.

 

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

 

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

 

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

 

“ Guarantors ” means, with respect to any series of Securities, the Person or Persons, if any, named in accordance with Section 2.1(9)  as the “Guarantors” with respect to such series and which shall have entered into a supplemental indenture pursuant to Section 9.1(11) hereof whereby such Person shall have executed a Securities Guarantee under this Indenture with respect to such series of Securities until, as to any particular Guarantor, a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter any reference to such “Guarantor” shall mean such successor Person. If a series of Securities does not have any Guarantors, all references in this Indenture to Guarantors shall have no effect and shall be ignored with respect to such Securities.

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Officer ” means the Chairman of the Board, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Issuer.

 

“ Officer’s Certificate ” means a certificate signed by an Officer.

 

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

 

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

 

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

 

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

 

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

 

“ SEC ” means the Securities and Exchange Commission.

 

“ Securities ” has the meaning ascribed to it in the second introductory paragraph of this Indenture. “ Securities Act ” means the Securities Act of 1933, as amended.

 

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

 

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

 

“ Significant Subsidiary ” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule

 

2

 

1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.

 

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

 

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

 

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

 

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

 

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

 

Section 1.2                                     Other Definitions.

 

		Defined in
Term		Section
“Agent Members”		2.16
“Certificate of Destruction”		2.11
“Corporate Trust Office”		3.3
“Covenant Defeasance”		8.3
“Defaulted Interest”		2.12
“Event of Default”		6.1
“Exchange Rate”		2.18
“Funding Guarantor”		10.5
“Legal Defeasance”		8.2
“Legal Holiday”		12.8
“Notation of Guarantee”		10.2
“Paying Agent”		2.5
“protected purchaser”		2.9
“Registrar”		2.5
“Securities Register”		2.5
“Special Interest Payment Date”		2.12(a)
“Special Record Date”		2.12(a)
“Surviving Entity”		4.1

 

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

 

“Commission” means the SEC.

 

“indenture securities” means the Securities.

 

“indenture security holder” means a Holder of a Security. “indenture to be qualified” means this Indenture.

 

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

 

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

 

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

 

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

 

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

 

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

 

(3)     “or” is not exclusive;

 

(4)     “including” means including without limitation;

 

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

 

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

 

(7)     provisions apply to successive events and transactions.

 

ARTICLE II

 

The Securities

 

Section 2.1                                     Form, Dating and Terms.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(12)                                 if other than Dollars, the currency or currencies (including composite currencies) or the form, including equity securities, other debt securities (including Securities), warrants or any other securities or property of the Issuer, any

 

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Guarantor or any other Person, in which payment of the principal of, premium (if any) and interest (including any Additional Interest) on and any Additional Amounts with respect to the Securities of the series shall be payable;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 2.3 ) set forth, or determined in the manner provided, in the Officer’s Certificate or Company Order referred to above or in any such indenture supplemental hereto.

 

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, together with such Board Resolution, shall be set forth in an Officer’s Certificate or certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate or Company Order setting forth the terms of the series.

 

Section 2.2                                     Denominations . The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 2.1 . In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in minimum denominations of $2,000 and integral multiples of $1,000 thereof.

 

Section 2.3                                     Forms Generally .  The Securities of each series shall be in fully registered form and in substantially such form or forms (including temporary or permanent global form) established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto. The Securities may have notations, legends or endorsements required by law, securities exchange rule, the Issuer’s certificate of incorporation, bylaws or other similar governing documents, agreements to which the Issuer is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Issuer). A copy of the Board Resolution establishing the form or forms of Securities of any series shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.4 for the authentication and delivery of such Securities.

 

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

 

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

 

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

 

	Wells Fargo Bank, N.A., as Trustee
	By:
		Authorized Signatory”

 

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

 

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

 

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

 

At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer (and, if applicable, the Notation of Guarantee for such series executed by each Guarantor with respect to such series) to the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for original issue upon a Company Order for the authentication and delivery of such Securities or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such order shall specify the amount of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, the name or names of the initial Holder or Holders and any other terms of the Securities of such series not otherwise determined. If provided for in such procedures, such Company Order may authorize (1) authentication and delivery of Securities of such series for original issue from time to time, with certain terms (including, without limitation, the Maturity dates or dates, original issue date or dates and interest rate or rates) that differ from Security to Security and (2) may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent, which instructions shall be promptly confirmed in writing.

 

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 Section 2.1 , in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in addition to the Company Order referred to above and the other documents required by Section 12.4 ), and (subject to Section 7.1 ) shall be fully protected in relying upon:

 

(a)                                  an Officer’s Certificate of the Issuer setting forth the Board Resolution and, if applicable, an appropriate record of any action taken pursuant thereto, as contemplated by the last paragraph of Section 2.1 ; and

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Each Security shall be dated the date of its authentication.

 

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

 

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

 

The Issuer initially appoints the Trustee as Registrar and Paying Agent for the Securities.

 

Section 2.6                                     Paying Agent to Hold Money in Trust .  By no later than 11:00 a.m. (New York City time) on the date on which any amount or Additional Amounts, if any, in respect of any Security is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such amount or Additional Amounts, if any, when due. The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of the applicable Holders or the Trustee all money held by such Paying Agent for the payment of such amount and Additional Amounts, if any, on the applicable Securities and shall notify the Trustee in writing of any default by the Issuer

 

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or any Guarantor in making any such payment. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.6 , the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as Paying Agent for the Securities.

 

Section 2.7                                     Holder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar with respect to a series of Securities, or to the extent otherwise required under the TIA, the Issuer shall furnish to the Trustee, in writing at least five Business Days before each interest payment date with respect to such series of Securities and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of such series.

 

Section 2.8                                     Transfer and Exchange .  Except as set forth in Section 2.16 or as may be provided pursuant to Section 2.1 , when Securities of any series are presented to the Registrar with the request to register the transfer of those Securities or to exchange those Securities for an equal principal amount of Securities of the same series of like tenor and of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements and the requirements of this Indenture for those transactions are met; provided, however , that the Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form reasonably satisfactory to the Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on which instruction the Registrar can rely.

 

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

 

The transferor of any Security shall provide or cause to be provided to the Trustee all information reasonably requested by the Trustee that is necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045 of the Internal Revenue Code of 1986. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information. In connection with any proposed exchange of a certificated Security for a Global Security, the Issuer or the Depositary shall provide or cause to be provided to the Trustee all information reasonably requested by the Trustee that is necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045 of the Internal Revenue Code of 1986. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.

 

Section 2.9                                     Mutilated, Destroyed, Lost or Wrongfully Taken Securities .  If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Security with respect to such series if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Issuer or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Issuer or Trustee prior to the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “ protected purchaser ”) and (c) satisfies any other reasonable requirements of the Trustee. Such Holder shall furnish an indemnity bond sufficient in the judgment of each of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security is replaced, and, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a protected purchaser, the Issuer shall execute and, upon a Company Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.

 

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

 

Upon the issuance of any new Security under this Section 2.9 , the Issuer 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) in connection therewith.

 

Every new Security issued pursuant to this Section in lieu of any mutilated, destroyed, lost or wrongfully taken Security shall constitute an original additional contractual obligation of the Issuer, any Guarantor (if applicable) and any other obligor upon the Securities of such series, whether or not the mutilated, destroyed, lost or wrongfully taken Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.

 

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

 

Section 2.10                              Outstanding Securities .  Securities outstanding at any time are all Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.10 as not outstanding. A Security ceases to be outstanding in the event the Issuer or a Subsidiary of the Issuer holds the Security, provided , however , that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section

 

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12.6   shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Securities are present at a meeting of Holders of Securities for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Securities which a Trust Officer of the Trustee actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered outstanding.

 

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

 

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

 

Section 2.11                              Cancellation . The Issuer at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and destroy such Securities in accordance with its internal policies, including, upon written request of the Issuer, delivery of a certificate (a “ Certificate of Destruction ”) describing such Securities disposed (subject to the record retention requirements of the Exchange Act). The Issuer may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.

 

Section 2.12                              Payment of Interest; Defaulted Interest .  Unless otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, interest (including any Additional Interest) and Additional Amounts, if any, on any Security of such series which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section 2.8 .

 

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

 

(a)                                  The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date (not less than 30 days after such notice) of the proposed payment (the “ Special Interest Payment Date ”), and at the same time the Issuer 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 Issuer shall fix a record date (the “ Special Record Date ”) for the payment of such Defaulted Interest, which date shall be not more than 15 days and not less than 10 days prior to the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly notify the Trustee of such Special Record Date, and the Trustee, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 12.2 , not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).

 

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

 

(c)                                   The Trustee will have no duty whatsoever to determine whether any Defaulted Interest is payable or the amount thereof.

 

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

 

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

 

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

 

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Section 2.15                              Computation of Interest .  Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 2.16                              Global Securities; Book-Entry Provisions .  If Securities of a series are issuable in global form as a Global Security, as contemplated by Section 2.1 , then, notwithstanding clause (11) of Section 2.1 and the provisions of Section 2.2 , any such Global Security shall represent those of the outstanding Securities of that series as shall be specified therein and may provide that it shall represent the aggregate amount of outstanding Securities of that series from time to time endorsed thereon and that the aggregate amount of outstanding Securities of that series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Securities of that series represented thereby shall be made by the Trustee (i) in such manner and upon instructions given by such Person or Persons as shall be specified in that Security or in a Company Order to be delivered to the Trustee pursuant to Section 2.4 or (ii) otherwise in accordance with written instructions or such other written form of instructions as is customary for the Depositary for that Security, from that Depositary or its nominee on behalf of any Person having a beneficial interest in that Global Security. Subject to the provisions of Section 2.4 and, if applicable, Section 2.13 , the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in that Security or in the applicable Company Order. With respect to the Securities of any series that are represented by a Global Security, the Issuer and any Guarantors authorize the execution and delivery by the Trustee of a letter of representations or other similar agreement or instrument in the form customarily provided for by the Depositary appointed with respect to that Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions by the Issuer with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 12.5 and need not be accompanied by an Opinion of Counsel.

 

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

 

Notwithstanding Section 2.8 , and except as otherwise provided pursuant to Section 2.1 , transfers of a Global Security shall be limited to transfers of that Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Security may be transferred in accordance with the rules and procedures of the Depositary. Securities of any series shall be transferred to all beneficial owners of a Global Security of that series in exchange for their beneficial interests in that Global Security if, and only if, either (1) the Depositary notifies the Issuer that it is unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when the Depositary is required to be so registered in order to act as depositary, and, in either case, a successor depositary is not appointed by the Issuer within 90 days of such notice, (2) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of definitive Securities or (3) a Default or Event of Default has occurred and is continuing with respect to the Securities.

 

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

 

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

 

Neither the Issuer, any Guarantor nor the Trustee will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to those Securities. Neither the Issuer, any Guarantor or the Trustee shall be liable for any delay by the related Global Security Holder or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in relying on, instructions from that Global Security Holder or the Depositary for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Securities to be issued).

 

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

 

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

 

Section 2.17                              CUSIP Numbers, Etc .  The Issuer in issuing the Securities of any series may use CUSIP numbers (if then generally in use) and, if so, the Trustee shall use CUSIP, ISIN and Common Code numbers in notices of redemption as a

 

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

 

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

 

ARTICLE III

 

Covenants

 

Section 3.1                                     Payment of Securities . The Issuer shall promptly pay the principal of, premium, if any, on, and interest (including any Additional Interest) and Additional Amounts, if any, on the Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal, premium, if any, interest (including any Additional Interest) and Additional Amounts, if any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds as of 11:00 a.m. New York City time in accordance with this Indenture immediately available funds sufficient to pay all principal, premium and interest (including any Additional Interest) and Additional Amounts, if any, then due and the Trustee or Paying Agent, as the case may be, is not prohibited from paying money to the Holders on that date pursuant to the terms of this Indenture.

 

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

 

Notwithstanding anything to the contrary contained in this Indenture, the Issuer may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.

 

Section 3.2                                     Reports . So long as the Securities of any series are outstanding, the Issuer shall furnish to the Trustee, within 15 days after the Issuer files the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Issuer files with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act and comply with the other provisions of TIA § 314(a).

 

The requirements for the Issuer to provide reports, information and documents pursuant to this Section 3.2 shall be satisfied by filing of such reports, information and documents via the SEC’s EDGAR system (or any successor electronic filing system) or posting such reports, information and documents on its website, in each case within the time periods specified herein; and

 

Delivery of reports, information and documents pursuant to this Section 3.2 to the Trustee is for informational purposes only and the Trustee’s receipt thereof shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s or any other person’s compliance with any of the covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee will not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s or any other person’s compliance with any of the covenants described herein or to determine whether such reports, information or documents have been filed via the SEC’s EDGAR system (or any successor electronic filing system) or posted on any website or other online data system.

 

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

 

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

 

Section 3.4                                     Corporate Existence .  Subject to Article IV , the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. This Section 3.4 shall not prohibit or restrict the Issuer from converting into a different form of legal entity.

 

Section 3.5                                     Compliance Certificate .  The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer an Officer’s Certificate stating that in the course of the performance by the signer of his or her duties as an Officer of the Issuer he or she would normally have knowledge of any Default or Event of Default and whether or not the signer

 

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knows of any Default or Event of Default that occurred during such period. If he or she does, the certificate shall describe the Default or Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto. The Issuer also shall comply with TIA § 314(a)(4).

 

Section 3.6                                     Statement by Officer as to Default . So long as Securities of any series are outstanding, the Issuer shall deliver to the Trustee, as soon as possible and in any event within 5 Business Days after the Issuer becomes aware of the occurrence of any Event of Default or Default with respect to that series an Officer’s Certificate setting forth the details of such Event of Default or Default and the action which the Issuer is taking or proposes to take in respect thereof.

 

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

 

Unless otherwise provided pursuant to Section 2.1 with respect to Securities of any series, if the Securities of a series provide for the payment of Additional Amounts, at least ten days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least ten days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Issuer shall furnish the Trustee and the Issuer’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether that payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then that Officer’s Certificate shall specify by country the amount, if any, required to be withheld on those payments to those Holders of Securities, and the Issuer will pay to that Paying Agent the Additional Amounts required by this Section. The Trustee will have no duty whatsoever to determine whether any Additional Amounts are payable or the amount thereof. The Issuer covenants to indemnify the Trustee and any Paying Agent for and to hold them harmless against any loss, liability or expense reasonably incurred without negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment) on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 3.7 .

 

ARTICLE IV

 

Successors

 

Section 4.1                                     Merger, Consolidation or Sale of Assets .  The Issuer shall not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all of its assets to any Person or Persons in a single transaction or through a series of transactions, unless:

 

(1)                                  the Issuer shall be the successor or continuing Person or, if the Issuer is not the successor or continuing Person, the resulting, surviving or transferee Person (the “ Surviving Entity ”) is a company organized and existing under the laws of the United States, any State thereof or the District of Columbia that expressly assumes all of the Issuer’s obligations under the Securities and this Indenture pursuant to a supplement hereto executed and delivered to the Trustee;

 

(2)                                  immediately after giving effect to such transaction or series of transactions, no Event of Default has occurred and is continuing; and

 

(3)                                  the Issuer or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel stating that the transaction or series of transactions and any supplement hereto complies with the terms of this Indenture.

 

If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s assets occurs in accordance with the terms hereof, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under this Indenture with the same effect as if such Surviving Entity had been named as the Issuer. The Issuer shall (except in the case of a lease) be discharged from all obligations and covenants under this Indenture and any Securities issued hereunder, and may be liquidated and dissolved. Notwithstanding the foregoing, the Issuer may merge or consolidate into or with any Subsidiary.

 

ARTICLE V

 

Redemption of Securities

 

Section 5.1                                     Applicability of Article .  Redemption of Securities at the election of the Issuer or otherwise, as permitted or required by any provision of this Indenture, shall be made in accordance with such provision and (except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series) this Article V .

 

Section 5.2                                     Election to Redeem; Notice to Trustee . In case of any redemption of any series of Securities at the election of the Issuer, the Issuer shall, not later than three Business Days prior to the date on which notice is given to the Holders of such redemption (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities of such series to be redeemed pursuant to Section 5.3 .

 

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

 

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

 

(2)                                  if the Securities are not listed on any national securities exchange, on a pro rata basis (or in the case of the Securities in global form, by such methods as DTC may require).

 

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Section 5.4                                     Notice of Redemption .  Notice of redemption shall be given in the manner provided for in Section 12.2 not less than 15 nor more than 30 days prior to the Redemption Date, to each Holder of Securities to be redeemed, except that redemption notices may be delivered more than 30 days prior to a Redemption Date if such notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture. The Trustee shall give notice of redemption in the Issuer’s name and at the Issuer’s expense; provided , however , that the Issuer shall deliver to the Trustee, at least three Business Days prior to the giving of notice of redemption to the Holders (unless a shorter notice shall be satisfactory to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice in the Issuer’s name and at the Issuer’s expense and setting forth the information to be stated in such notice as provided in the following items.

 

All notices of redemption shall state:

 

(1)                                     the Redemption Date;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(10)                           the section of this Indenture and the paragraph of the Securities pursuant to which the Securities are to be redeemed.

 

Any redemption and notice thereof pursuant to this Indenture may, in the Issuer’s discretion, be subject to the satisfaction of one or more conditions.

 

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

 

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

 

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

 

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

 

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ARTICLE VI

 

Defaults and Remedies

 

Section 6.1                                     Events of Default .  Unless either inapplicable to a particular series or specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution establishing such series of Securities or in the form of Security for such series, an “ Event of Default ,” wherever used herein with respect to Securities of any series, occurs if:

 

(1)                                     the Issuer defaults in the payment of any installment of interest or Additional Interest, if any, on or Additional Amounts, if any, with respect to any Security of that series under this Indenture when due, and such default continues for 30 days or longer;

 

(2)                                     the Issuer defaults in the payment when due (at Stated Maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the Securities of that series;

 

(3)                                     the Issuer fails to comply with the provisions of Section 4.1 hereof;

 

(4)                                     the Issuer fails for 90 days after notice to the Issuer by the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities of that series then outstanding to comply with any of the other covenants or agreements in this Indenture;

 

(5)                                     the Issuer fails to deposit any sinking fund payment, when due, in respect of any debt security of that series;

 

(6)                                     (a) except as permitted by this Indenture, any Security Guarantee of that series shall be held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect or (b) any Guarantor of that series, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee (except pursuant to the release or termination of such Security Guarantee in accordance with this Indenture); and

 

(7)                                  (a) the Issuer or any Significant Subsidiary or a group of Subsidiaries that, taken together (as of the latest available consolidated financial statements of the Issuer), would constitute a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:

 

(i)                                      commences a voluntary case or proceeding

 

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

 

(iii)                                consents to the appointment of a Custodian of it or for any substantial part of its property;

 

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

 

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

 

or takes any comparable action under any foreign laws relating to insolvency; or

 

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

 

(i)                                      is for relief against the Issuer or any Significant Subsidiary;

 

(ii)                                   appoints a Custodian of the Issuer or any Significant Subsidiary; or

 

(iii)                                orders the winding up or liquidation of the Issuer or any Significant Subsidiary;

 

or any similar relief is granted under any foreign laws and the order, decree or relief remains unstayed and in effect for

 

90 days.

 

Section 6.2                                     Acceleration . Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of such series, if any Event of Default with respect to any Securities of such series at the time outstanding (other than those of the type described in clause (7)  of Section 6.1 solely with respect to the Issuer) occurs and is continuing, the Trustee may, and at the direction of the Holders of at least 25% in aggregate principal amount of outstanding Securities of such series shall, declare the principal of all the Securities of that series, together with all accrued and unpaid interest (including any Additional Interest) and Additional Amounts, if any, and premium, if any, to be due and payable immediately by notice in writing to the Issuer and, in the case of a notice by such Holders, also to the Trustee specifying the respective Event of Default and that such notice is a notice of acceleration, and the same shall become immediately due and payable.

 

Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, in the case of an Event of Default with respect to such series specified in clause (7)  of Section 6.1 hereof solely with respect to the Issuer, all outstanding Securities of such series shall become due and payable immediately without further action or notice by the Trustee or the Holders. Holders may not enforce this Indenture or the Securities except as provided in this Indenture.

 

Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, at any time after a declaration of acceleration with respect to the Securities of such series, the Holders of a majority in principal amount of the Securities of that series then outstanding (by notice to the Trustee) may, on behalf of the Holders of all the Securities of that series, rescind and cancel such declaration and its consequences if:

 

(1)                                  the rescission would not conflict with any judgment or decree of a court of competent jurisdiction;

 

(2)                                  all existing Defaults and Events of Default with respect to Securities of that series have been cured or waived except nonpayment of principal of or interest on the Securities of that series that has become due solely by reason of such declaration of acceleration;

 

(3)                                  to the extent the payment of such interest is lawful, interest (at the same rate specified in the Securities of such series) on overdue installments of interest (including any Additional Interest) and Additional Amounts, if any, and overdue payments of principal which has become due otherwise than by such declaration of acceleration has been paid;

 

(4)                                  the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances; and

 

(5)                                  in the event of the cure or waiver of an Event of Default of the type described in clause (7)  of Section 6.1 solely with respect to the Issuer , the Trustee has received an Officer’s Certificate and Opinion of Counsel that such Event of Default has been cured or waived.

 

Section 6.3                                     Other Remedies . If an Event of Default with respect to any series occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of (or premium, if any) or interest (including any Additional

 

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Interest) or Additional Amounts, if any, on the Securities of such series or to enforce the performance of any provision of the Securities of such series or this Indenture with respect to such series.

 

The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy.  All available remedies are cumulative.

 

Section 6.4                                     Waiver of Past Defaults .  Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, the Holders of a majority in principal amount of the then outstanding Securities of such series by notice to the Trustee may, on behalf of the Holders of all the Securities of such series, (a) waive, by their consent (including, without limitation consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities of such series), an existing Default or Event of Default, with respect to such series and its consequences or compliance with any provisions except (i) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest (including any Additional Interest) or Additional Amounts, if any, on a Security of such series or (ii) a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind any such acceleration with respect to the Securities of such series and its consequences if rescission would not conflict with any judgment or decree of a court of competent jurisdiction. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any consequent right.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 6.8                                     Collection Suit by Trustee . If an Event of Default specified in clauses (1) or (2)  of Section 6.1 occurs and is continuing with respect to Securities of any series, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) with respect to such series and the amounts provided for in Section 7.7 .

 

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

 

Section 6.10                              Priorities . If the Trustee collects any money or property pursuant to this Article VI , it shall pay out the money or property in the following order:

 

FIRST : to the Trustee, its agents and counsel for amounts due under Section 7.7 , including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

SECOND : to Holders for amounts due and unpaid on the Securities in respect of which or for the benefit of which such money has been collected, for principal, premium, if any, and interest (including any Additional Interest) and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on such

 

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Securities for principal, premium, if any, and interest (including any Additional Interest) and Additional Amounts, if any, respectively; and

 

THIRD : to the Issuer or any Guarantors or to such other party as a court of competent jurisdiction may direct.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10 .

 

Section 6.11                              Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Securities of any series.

 

ARTICLE VII

 

Trustee

 

Section 7.1                                     Duties of Trustee . (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security against loss, liability or expense satisfactory to the Trustee in its sole discretion.

 

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

 

(1)                                  the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)                                  in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates, opinions or orders furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

(c)                                   The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(1)                                  this paragraph does not limit the effect of paragraph (b) of this Section 7.1 ;

 

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

 

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

 

(d)                                  Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1 .

 

(e)                                   The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.

 

(f)                                    Money held in trust by the Trustee need not be segregated from other funds except to the extent required by

 

law.

 

(g)                                   No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur

 

financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers.

 

(h)                                  Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1 and to the provisions of the TIA.

 

(i)                                      Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.

 

(j)                                     The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.

 

Section 7.2                                     Rights of Trustee .  Subject to Section 7.1 :

 

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

 

(b)                                     Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate and/or Opinion of Counsel.

 

(c)                                      The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

 

(d)                                     The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

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(e)                                      The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(f)                                       The Trustee is not required to make any inquiry or investigation into facts or matters stated in any document but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee determines to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation.

 

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

 

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

 

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

 

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

 

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

 

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

 

(m)                              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.

 

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

 

(o)                                  No provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to take or omit to take any action, in the performance of its duties or obligations under this Indenture, or to exercise any right or power thereunder, to the extent that taking or omitting to take such action would violate applicable law binding upon it.

 

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

 

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

 

Section 7.5                                     Notice of Defaults . If a Default or Event of Default with respect to the Securities of any series occurs and is continuing and known to the Trustee as set forth in Section 7.2(g), the Trustee shall deliver to each Holder of a Security of such series notice of the Default or Event of Default within 90 days after it occurs, unless the Default was already cured or waived. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest (including any Additional Interest) or Additional Amounts, if any, on any Security of any series, the Trustee may withhold the notice if and so long as a committee of its trust officers in good faith determines that withholding the notice is in the interests of Holders of such series.

 

Section 7.6                                     Reports by Trustee to Holders .  As promptly as practicable after each May 15 beginning with May 15, 2019 and for so long as the Securities of any series remain outstanding, the Trustee shall mail to each Holder of Securities of such series a brief report dated as of such reporting date that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b).  The Trustee shall also transmit by mail all reports required by TIA § 313(c).

 

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

 

Section 7.7                                     Compensation and Indemnity .  The Issuer shall pay to the Trustee from time to time compensation for its acceptance of this Indenture and services hereunder as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Issuer and any Guarantors shall, jointly and severally, indemnify, defend and protect the Trustee, and hold the Trustee harmless against any and all losses, liabilities, damages, claims, penalties, fines or expenses (including reasonable attorneys’ fees and expenses and court costs) (for purposes of this Section 7.7, “losses”) incurred by it in connection with the administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this Section 7.7 ) and of defending itself against any claims (whether asserted by any Holder, the Issuer or otherwise) or liability in connection

 

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with the exercise or performance of any of its powers or duties hereunder, except to the extent such losses may be attributable to its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee shall provide reasonable cooperation at the Issuer’s expense in the defense. The Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel provided that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuer and the Trustee in connection with such defense and there are not additional or separate defenses available to the Trustee that are not available to the Issuer and the Issuer is unable to assert any such defense on the Trustee’s behalf. The Issuer shall not be under any obligation to pay for any written settlement without its consent, which consent shall not be unreasonably delayed, conditioned or withheld. The Issuer need not reimburse any expense incurred by the Trustee through the Trustee’s own willful misconduct or gross negligence as determined by a court of competent jurisdiction in a final, non-appealable judgment.

 

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

 

The Issuer’s payment obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Securities. When the Trustee incurs expenses after the occurrence of a Default specified in clause (7) of Section 6.1 with respect to the Issuer, the expenses are intended to constitute expenses of administration under any Bankruptcy Law.

 

Section 7.8                                     Replacement of Trustee .  The Trustee may resign at any time by so notifying the Issuer.  The Issuer or the Holders of a majority in principal amount of the then outstanding Securities of any series may remove the Trustee with respect to the Securities of such series upon 30 days’ prior notice by so notifying the Trustee and the Issuer may appoint a successor Trustee.  The Issuer also may remove the Trustee if:

 

(1)                                  the Trustee fails to comply with Section 7.10 ;

 

(2)                                  the Trustee is adjudged bankrupt or insolvent;

 

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

 

(4)                                  the Trustee otherwise becomes incapable of acting.

 

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

 

If a successor Trustee with respect to Securities of any series does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the then outstanding Securities of such series may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.

 

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

 

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

 

In case of the appointment of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, any Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more (but not all) series shall execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall confirm that all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (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. Nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee shall have all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. On request of the Issuer or any successor Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Such retiring Trustees shall, however, have the right to deduct its unpaid fees and expenses, including attorneys’ fees.

 

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

 

Section 7.9                                     Successor Trustee by Merger .  If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

 

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to

 

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

 

Section 7.10                              Eligibility; Disqualification .  The Trustee shall at all times satisfy the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b); provided , however , that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.

 

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

 

ARTICLE VIII

 

Legal Defeasance and Covenant Defeasance

 

Section 8.1                                     Option to Effect Legal Defeasance or Covenant Defeasance .  Unless otherwise designated pursuant to Section 2.1(20) , the Securities of any series shall be subject to defeasance or covenant defeasance pursuant to Section 8.2 or 8.3 , in accordance with any applicable requirements provided pursuant to Section 2.1 and upon compliance with the conditions set forth in this Article VIII . The Issuer may, at its option and at any time, elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding Securities of any series so subject to defeasance or covenant defeasance. Any such election shall be evidenced by a Board Resolution of the Issuer or in another manner specified as contemplated by Section 2.1 for such Securities.

 

Section 8.2                                     Legal Defeasance and Discharge .  Upon the Issuer’s exercise under Section 8.1 hereof of the option applicable to this Section 8.2 with respect to Securities of any series, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its Obligations with respect to all outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “ Legal Defeasance ”) and each Guarantor, if applicable, shall be released and relieved from all of its Obligations under its Security Guarantee with respect to such series. For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities with respect to such series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (a) through (e) below, and to have satisfied all its other obligations under the Securities with respect to such series and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Securities with respect to such series to receive, solely from the trust fund described in Sections 8.4 and 8.5 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest (including any Additional Interest) and Additional Amounts, if any, on such Securities when such payments are due, (b) the Issuer’s Obligations with respect to such Securities under Article II and Sections 3.1 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s and any Guarantors’ obligations in connection therewith, (d) the optional redemption provisions, if any, with respect to such Securities, and (e) this Article VIII . If the Issuer exercises under Section 8.1 hereof the option applicable to this Section 8.2 , subject to the satisfaction of the conditions set forth in Section 8.4 hereof, payment of the Securities with respect to such series may not be accelerated because of an Event of Default. Subject to compliance with this Article VIII , the Issuer may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 hereof.

 

Section 8.3                                     Covenant Defeasance .  Upon the Issuer’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3 with respect to Securities of any series, the Issuer shall, with respect to such series of Securities, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be released from its obligations under the covenants contained in Sections 3.2 and 3.3 (as such covenants may be amended, and new covenants may be added, pursuant to Section 2.1), with respect to the outstanding Securities of such series on and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “ Covenant Defeasance ”) and each Guarantor, if applicable, shall be released from all of its obligations under its Security Guarantee with respect to such series of Securities, and the Securities of such series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of such series (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities of such series, the Issuer and any Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. If the Issuer exercises under Section 8.1 hereof the option applicable to this Section 8.3 , subject to the satisfaction of the conditions set forth in Section 8.4 hereof, payment of the Securities of such series may not be accelerated because of an Event of Default specified in clauses (3), (4) (with respect to Sections 3.2 and 3.3 (as such covenants may be amended, and new covenants may be added, pursuant to Section 2.1) ), (5), (6) and (7) of such Section 6.1 .

 

Section 8.4                                     Conditions to Legal or Covenant Defeasance .  The following shall be the conditions to the application of either Section 8.2 or 8.3 hereof to the outstanding Securities of any series.

 

In order to exercise Legal Defeasance or Covenant Defeasance with respect to the Securities of any series:

 

(1)                                     the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Securities of such series, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars, and non-callable Government Securities, in amounts as will be sufficient without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, and interest (including any Additional Interest) and Additional Amounts, if any, and premium, if any, on the

 

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outstanding Securities of such series on the stated date for payment or on the applicable Redemption Date, as the case may be, and the Issuer must specify whether the Securities of such series are being defeased to such stated date for payment or to a particular Redemption Date;

 

(2)                                     in the case of Legal Defeasance, the Issuer must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that: (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling; or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will 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 such Legal Defeasance and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

(3)                                     in the case of Covenant Defeasance, the Issuer must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that Holders of the outstanding Securities of such series shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(4)                                     no Default or Event of Default has occurred and be continuing with respect to the Securities of such series on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

 

(5)                                     such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;

 

(6)                                     the Issuer must deliver to the Trustee an Officer’s Certificate stating that such deposit was not made by the Issuer with the intent of preferring the Holders of Securities of such series over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or others; and

 

(7)                                     the Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

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

 

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

 

Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any cash or non-callable Government Securities held by it as provided in Section 8.4 hereof which, in the opinion of a nationally recognized independent registered public accounting firm expressed in a written certification thereof delivered to the Trustee (which may be the certification delivered under clause (1) of Section 8.4 hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

Section 8.6                                     Repayment to Issuer .  Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, on, or interest (including any Additional Interest) or Additional Amounts, if any, on, any Security of any series and remaining unclaimed for one year after such principal, premium, if any, or interest (including any Additional Interest) or Additional Amounts, if any, has become due and payable shall be paid to the Issuer on its request (unless an abandoned property law designates another Person) or (if then held by the Issuer) shall be discharged from such trust; and such Holder shall thereafter, as an unsecured creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Issuer as Trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Issuer.

 

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

 

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ARTICLE IX

 

Amendments

 

Section 9.1                                     Without Consent of Holders .  Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, the Issuer, any Guarantors and the Trustee may amend or supplement this Indenture, the Securities or the Security Guarantees without notice to or consent of any Holder:

 

(1)                                     to cure any ambiguity, mistake, defect or inconsistency;

 

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

 

(3)                                     establish the form or terms of the Securities of any series as permitted by the Indenture;

 

(4)                                     to provide for the assumption of the Issuer’s or a Guarantor’s obligations to Holders of Securities of any series and Security Guarantees in the case of a merger or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s properties or assets, as applicable;

 

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

 

(6)                                     to comply with requirements of the SEC in order to maintain the qualification of this Indenture under the Trust Indenture Act;

 

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

 

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

 

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

 

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

 

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

 

(12)                              to secure the Securities of any series;

 

(13)                              to evidence and provide for the acceptance under this Indenture of a successor trustee; or

 

(14)                              to conform the text of this Indenture or any Securities to the description thereof in any prospectus or prospectus supplement or offering memorandum of the Issuer with respect to the offer and sale of Securities of any series, to the extent that such provision is inconsistent with a provision of this Indenture or the Securities.

 

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

 

Section 9.2                                     With Consent of Holders .  Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, except as provided below in this Section 9.2 , the Issuer or any Guarantors and the Trustee may amend or supplement this Indenture with the consent (including consents obtained in connection with a tender offer or exchange offer for Securities) of the Holders of at least a majority in aggregate principal amount of the then outstanding Securities of each series affected by such amendment or supplement (acting as separate classes).

 

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

 

Except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, the Holders of a majority in principal amount of the then outstanding Securities of one or more series or of all series affected by such waiver (acting as separate classes) may waive compliance in a particular instance by the Issuer or any Guarantor with any provision of this Indenture with respect to Securities of such series (including waivers obtained in connection with a tender offer or exchange offer for Securities of such series).

 

However, except as otherwise provided as contemplated by Section 2.1 with respect to the Securities of any series, without the consent of each Holder affected, an amendment, supplement or waiver may not (with respect to any Securities held by a non-consenting Holder):

 

(1)                                     reduce the principal amount of any Security whose Holders must consent to an amendment, supplement or

 

waiver;

 

(2)                                     reduce the principal of or change the fixed maturity of any Security or alter the provisions with respect to the

 

redemption or repurchase of any Security;

 

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

 

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

 

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(5)                                      make payments on any Security payable in currency other than that stated in the Securities;

 

(6)                                     make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Securities to receive payments of principal of, or interest, Additional Interest or premium, if any, on the Securities (other than as permitted in clause (7)  below);

 

(7)                                      waive a redemption payment with respect to any Security;

 

(8)                                     impair the right of a Holder of Securities to institute suit for the enforcement of any payment on the Securities;

 

(9)                                     release any Guarantor from any of its obligations under its Security Guarantee or this Indenture, except in accordance with the terms of this Indenture; or

 

(10)                               make any change in the preceding amendment, supplement and waiver provisions.

 

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

 

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

 

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

 

Section 9.3                                     Compliance with Trust Indenture Act . Every amendment or supplement to this Indenture or the Securities shall comply with the Trust Indenture Act of 1939 as then in effect.

 

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

 

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

 

The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. The Trustee may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Securities of any series entitled to join in the giving, making or taking of (i) any notice permit to Section 6.1(4)  or otherwise of any Default, (ii) any declaration of acceleration pursuant to Section 6.2 , (iii) any request to institute proceedings pursuant to Section 6.6(2) , or (iv) any direction referred to in Section 6.5 , in each case with respect to such series. If a record date is so fixed, then notwithstanding the second preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date.

 

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

 

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

 

ARTICLE X

 

Securities Guarantee

 

Section 10.1                              Securities Guarantee .  Securities of any series that are to be guaranteed by the Securities Guarantees of any Guarantors shall be guaranteed by such Guarantors as shall be established pursuant to Section 2.1 as Guarantors with respect to the Securities of such series; provided that, prior to the authentication and delivery upon original issuance of Securities of any series that are to be guaranteed by a Person, the Issuer, the Trustee and such Person shall have entered into a supplemental indenture pursuant to Section 9.1(11) hereof whereby such Person shall have executed a Securities Guarantee under this Indenture with respect to any series of Securities as to which such Person has been so established pursuant to Section 2.1 as a Guarantor thereof and shall have made each of the covenants and agreements of a Guarantor hereunder with respect to each such series.

 

Securities of any series that are to be guaranteed by the Securities Guarantees of any Guarantors shall be guaranteed in accordance with the terms of such Securities Guarantees as established pursuant to Section 2.1 with respect to such series of

 

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

 

Except as otherwise provided as contemplated by Section 2.1, any Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety, jointly and severally with any other Guarantor, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest (including any Additional Interest) and Additional Amounts, if any, on the Securities and all other monetary Obligations of the Issuer under this Indenture. Any Guarantor shall further agree (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Obligation, except as otherwise provided as contemplated by Section 2.1.

 

Any Guarantor shall waive presentation to, demand of payment from and protest to the Issuer of any of the Obligations and also shall waive notice of protest for nonpayment. Any Guarantor shall waive notice of any default under the Securities or the Obligations. The obligations of any Guarantor shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of any Security held by any Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Issuer.

 

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

 

Except as expressly set forth in Article VIII and Section 10.3 and except as otherwise provided as contemplated by Section 2.1 , the obligations of each Guarantor shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.

 

Each Guarantor shall further agree that, except as otherwise provided as contemplated by Section 2.1, its Security Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest (including any Additional Interest) or Additional Amounts, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.

 

In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.3 and except as otherwise provided as contemplated by Section 2.1.

 

Each Guarantor shall further agree that, except as otherwise provided as contemplated by Section 2.1, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations Guaranteed may be accelerated as provided in this Indenture for the purposes of its Security Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of the Security Guarantee.

 

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

 

Section 10.2                              Execution and Delivery of Securities Guarantees; Notations of Guarantees . The Securities Guarantee of any Guarantor with respect to Securities of any series as to which such Guarantor has been established as a Guarantor pursuant to Section 2.1 shall be fully evidenced by such Guarantor’s execution and delivery of a supplemental indenture hereto. Anything herein to the contrary notwithstanding, there shall be no requirement that any Security having the benefit of a Securities Guarantee have endorsed thereon or attached thereto such Securities Guarantee or a notation of such Securities Guarantee. Solely with respect to Securities of any series that are entitled to the benefits of any Securities Guarantee of any Guarantor and as to which Notations of Guarantee are to be included on such Securities as designated pursuant to Section 2.1(9) , to further evidence its Securities Guarantee set forth in Section 10.1 or otherwise established pursuant hereto with respect to Securities of such series, each of the Guarantors with respect to Securities of any series shall agree that a notation relating to such Securities Guarantee (the “ Notation of Guarantee ”), substantially in the form attached hereto as Annex A, shall be endorsed on each Security of such series entitled to the benefits of such Securities Guarantee authenticated and delivered by the Trustee, which Notation of Guarantee shall be executed by either manual or facsimile signature of an Officer of such Guarantor. Each of the Guarantors with respect to Securities of any series shall agree that its Securities Guarantee set forth in Section 10.1 or otherwise established pursuant hereto with respect to Securities of such series shall remain in full force and effect notwithstanding any absence of Notations of Guarantees as to such series or any failure to endorse on any Security the Notation of Guarantee relating to such Securities Guarantee. If any Officer of any Guarantor with respect to Securities of any series, whose signature

 

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is on the Notation of Guarantee on any Security of such series, no longer holds that office at the time the Trustee authenticates any Security or at any time thereafter, the Securities Guarantee of such Security shall be valid nevertheless. The delivery of any Security of a series entitled to the benefits of a Securities Guarantee under this Article X or otherwise established pursuant hereto by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of such Securities Guarantee on behalf of each Guarantor.

 

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

 

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

 

(b)                                  The Security Guarantee of a Guarantor shall be automatically and unconditionally released and discharged, without the consent of the Holders, and no further action by the Issuer, any Guarantor or the Trustee shall be required for such release (unless the Issuer shall notify the Trustee that no release and discharge shall occur as a result thereof) upon:

 

(1)                                  the sale or other disposition (including by way of consolidation or merger) of such Guarantor to a Person other than the Issuer or any Subsidiary of the Issuer as permitted by this Indenture;

 

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

 

(3)                                  as otherwise provided as contemplated by Section 2.1.

 

(c)                                   Any Guarantor not released from its obligations under its Security Guarantee shall remain liable for the full amount of principal of and interest on the Securities and for the other obligations of any Guarantor as provided in this Article X except as otherwise provided as contemplated by Section 2.1.

 

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

 

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

 

Section 10.6                              Guarantors May Consolidate, etc., on Certain Terms .

 

(a)                                  Except as otherwise provided in Section 10.3 in connection with any release and discharge of a Guarantor, no Guarantor may consolidate or combine with or merge with or into (whether or not such Guarantor is the surviving person) or sell or convey all or substantially all of its assets to another Person whether or not affiliated with such Guarantor, unless the Person formed by or surviving any such consolidation, combination or merger or the transferee Person (in each case if other than a Guarantor or the Issuer) unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee.

 

In case of any such consolidation, merger, combination, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of such Security Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall become a Guarantor (and succeed to and be substituted for the predecessor to the extent of any release and discharge of such predecessor pursuant to Section 10.3).

 

(b)                                  Notwithstanding clause (a) above, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation, combination or merger of a Guarantor with or into the Issuer or another Guarantor, or shall prevent any sale or conveyance of all or substantially all of the assets of a Guarantor to the Issuer or another Guarantor.

 

ARTICLE XI

 

Satisfaction and Discharge

 

Section 11.1                              Satisfaction and Discharge . This Indenture will be discharged and will cease to be of further effect as to all Securities of any series issued hereunder (except as to surviving rights of registration of transfer or exchange of such Securities and as otherwise specified hereunder), when:

 

(1)                                  either:

 

(a)                                  all such Securities of that series that have been authenticated, except Securities that have been lost, stolen or destroyed or wrongfully taken and that have been replaced or paid and Securities of such series for whose payment money has been deposited in trust and thereafter repaid to the Issuer have been delivered to the Trustee for cancellation; or

 

(b)                                  all Securities of such series that have not been delivered to the Trustee for cancellation have become due and payable or will become due and payable, whether at maturity or upon redemption or will become due and payable within one year by reason of the delivery of a notice of redemption or otherwise and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of Securities of such series,

 

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cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay and discharge the entire indebtedness on applicable Securities not delivered to the Trustee for cancellation for principal, premium and Additional Interest, if any, and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;

 

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

 

(3)                           the Issuer or any Guarantor has paid or caused to be paid all sums payable by it hereunder with respect to such series;

 

(4)                           the Issuer has delivered irrevocable instructions to the Trustee hereunder to apply the deposited money toward the payment of such Securities issued thereunder at fixed maturity or the Redemption Date, as the case may be; and

 

(5)                                  the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, which state that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture with respect to such series have been satisfied.

 

ARTICLE XII

 

Miscellaneous

 

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

 

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

 

if to the Issuer:

 

Maple Escrow Subsidiary, Inc.

33 Coffee Lane

Waterbury, Vermont 05676

Attention: General Counsel

 

if to the Trustee:

 

Wells Fargo Bank, N.A.

1445 Ross Avenue, Suite 4300

MAC T9216-430

Dallas, Texas 75202

Attention: Patrick Giordano

 

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

 

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged, if transmitted by telecopier or other electronic transmission; or the next Business Day after timely delivery to a courier, if sent by overnight air courier guaranteeing next day delivery.

 

Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed; provided, however, that a notice or communication to a Holder of a Global Security may, but need not, instead be sent pursuant to the applicable procedures of the Depositary (in which case, such notice will be deemed to be duly sent or given in writing). The Registrar shall provide the Issuer with address information with respect to the Holders as promptly as practicable following the Issuer’s request therefor. Any notice or communication shall also be mailed to any Person described in TIA § 313(c), to the extent required by the TIA.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(1)                                  a statement that the individual making such certificate or opinion has read such covenant or condition;

 

(2)                                  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

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

 

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

 

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

 

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

 

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

 

Section 12.9                              GOVERNING LAW; WAIVER OF JURY TRIAL . THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE ISSUER, ANY GUARANTOR AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE OR THE SECURITIES.

 

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

 

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

 

Section 12.12                       Multiple Originals . The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  One signed copy is enough to prove this Indenture.

 

Section 12.13                       Severability .  In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 12.14                       No Adverse Interpretation of Other Agreements .  This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or any Subsidiary or any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture or the Security Guarantees.

 

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

 

Section 12.16                       Force Majeure .  In no event will the Trustee or any agent be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its control, including 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

 

25

 

hardware) services, it being understood that the Trustee and each agent will use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

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

 

[ Signature pages follow ]

 

26

 

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

 

	MAPLE ESCROW SUBSIDIARY, INC.
	By:	/s/ Ozan Dokmecioglu
		Name:	Ozan Dokmecioglu
		Title:	Treasurer

 

 

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

 

	TRUSTEE:
	WELLS FARGO BANK, N.A., as Trustee
	By:	/s/ Patrick T. Giordano
		Name:	Patrick T. Giordano
		Title:	Vice President

 

[Signature page to the Base Indenture]

 

 

ANNEX A

FORM OF NOTATION OF GUARANTEE

 

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

 

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

 

	[NAME OF GUARANTOR]
	By:
		Name:
		Title:

 

Exhibit 4.2

 

EXECUTION VERSION

 

This FIRST SUPPLEMENTAL INDENTURE (this “ First Supplemental Indenture ”), dated as of May 25, 2018, among MAPLE ESCROW SUBSIDIARY, INC., a Delaware corporation (the “ Issuer ”), MAPLE PARENT HOLDINGS CORP. (“ Maple ”), a Delaware corporation, as parent guarantor (in such capacity, the “ Parent Guarantor ”), and WELLS FARGO BANK, N.A., as trustee (the “ Trustee ”).

 

RECITALS

 

WHEREAS, the Issuer and the Trustee have heretofore executed and delivered an indenture, dated as of May 25, 2018 (the “ Indenture ”), providing for the issuance by the Issuer from time to time of its debt securities to be issued in one or more series;

 

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

 

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

 

WHEREAS, Section 10.1 of the Indenture provides that prior to the authentication and delivery upon original issuance of Securities of any series that are to be guaranteed by a Person, the Issuer, the Trustee and such Person shall have entered into a supplemental indenture pursuant to Section 9.1(11) of the Indenture whereby such Person shall have executed a Securities Guarantee under the Indenture with respect to any series of Securities as to which such Person has been so established pursuant to Section 2.1 of the Indenture as a Guarantor thereof.

 

WHEREAS, the Issuer intends by this First Supplemental Indenture to create and provide for the issuance of new series of debt securities to be designated as the “3.551% Senior Notes due 2021” (the “ Notes ”);

 

WHEREAS, the Issuer intends by this First Supplemental Indenture to provide that the Notes will be entitled to the benefits of the Parent Guarantee of the Parent Guarantor;

 

WHEREAS, the Parent Guarantor intends by this First Supplemental Indenture to execute the Parent Guarantee with respect to the Notes;

 

WHEREAS, pursuant to Section 9.1(3)  and (11) of the Indenture, the Trustee, the Issuer and the Parent Guarantor are authorized to execute and deliver this First Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder of Notes;

 

 

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

 

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

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01  Definitions .

 

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

 

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

 

“ Additional Interest ” means additional interest in the amount required to be paid on the Notes pursuant to Section 2(d) of the Registration Rights Agreement, dated the Issue Date, by and among the Issuer and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs & Co.  LLC and Citigroup Global Markets Inc., relating to the Notes under the circumstances set forth therein.

 

“ Attributable Debt ” in respect of a sale and leaseback transaction means, at any time of determination, the present value at that time of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction.  Such present value will be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided , however , that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Attributable Debt represented thereby will be determined in accordance with the definition of “ Capital Lease Obligation. ”

 

“ Assumption ” means the assumption of the obligations of the Issuer under the Notes, the Indenture and this First Supplemental Indenture by KDP upon the consummation of the Transactions.

 

“ Capital Lease Obligation ” means, at any time of determination, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP.

 

 

“ Change of Control ” means the occurrence of any of the following: (1) the consummation of any transaction (including, without limitation, any merger or consolidation) resulting in 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) becoming the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or (2) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in a transaction or a series of related transactions, of all or substantially all of the Company’s assets and the assets of its Subsidiaries, taken as a whole, to one or more Persons (other than the Company or one of its subsidiaries).  For the avoidance of doubt, the Transactions, the Escrow Merger and the Assumption shall not constitute a Change of Control.

 

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

 

“ Company ” means (i) Maple prior to the consummation of the Transactions, the Escrow Merger and the Assumption and (ii) KDP upon the consummation of the Transactions, the Escrow Merger and the Assumption.

 

“ Comparable Treasury Issue ” means the U.S. Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed (assuming that the Notes matured on May 25, 2021) 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 Notes to be redeemed.

 

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

 

“ Consolidated Total Assets ” means, with respect to any Person, as of any date of determination, the total assets reflected on the consolidated balance sheet of such Person and its subsidiaries as of the end of the most recently ended fiscal quarter of such Person for which consolidated financial statements have been prepared, determined on a consolidated basis in accordance with GAAP.

 

“ DPSG ” means Dr Pepper Snapple Group, Inc., a Delaware corporation, which is expected to change its name to Keurig Dr Pepper Inc., a Delaware corporation (“ KDP ”) upon consummation of the Merger.

 

“ Escrow Agent ” means JPMorgan Chase Bank, N.A.

 

“ Escrow Agreement ” means the escrow agreement to be entered into on the Issue Date, among the Issuer, the Trustee and the Escrow Agent.

 

 

“ Escrow End Date ” means December 29, 2018.

 

“ Escrow Merger ” means the merger of the Issuer with KDP, with KDP surviving.

 

“ Fitch ” means Fitch, Inc.

 

“ Funded Debt ” means Indebtedness which by its terms matures at or is extendible or renewable at the option of the obligor to date more than 12 months after the date of the creation or incurrence of such Indebtedness.

 

“ Indebtedness ” means, with respect to any Person, without duplication, any indebtedness of such Person, whether or not contingent: (1) in respect of borrowed money; (2) evidenced by bonds, notes, debentures, or similar instruments or letters of credit (or reimbursement agreements with respect thereto); (3) in respect of banker’s acceptances, bank guarantees, surety bonds or similar instruments; (4) representing Capital Lease Obligations; or (5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, except any such balance that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business; if and to the extent any of the preceding items (other than letters of credit) would appear as a liability upon a balance sheet (excluding the notes thereto) of the specified Person prepared in accordance with GAAP.

 

In addition, the term “ Indebtedness ” includes all of the following items, whether or not any such items would appear as a liability on a balance sheet of the specified Person in accordance with GAAP: (1) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person); and (2) to the extent not otherwise included, any guarantee by the specified Person of Indebtedness of any other Person.

 

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

 

“ Investment Grade Rating ” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from any replacement Rating Agency or Rating Agencies selected by the Company.

 

“ Issue Date ” means May 25, 2018.

 

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

 

 

“ Merger ” means the merger of Salt Merger Sub, Inc., a wholly owned subsidiary of DPSG, with and into Maple, with Maple surviving the merger as a wholly owned subsidiary of DPSG, pursuant to the Merger Agreement.

 

“ Merger Agreement ” means the Agreement and Plan of Merger, dated as of January 29, 2018, among Maple Parent Holdings Corp., DPSG and Salt Merger Sub, Inc., as may be amended or supplemented from time to time.

 

“ Merger Financing Notes ” means the Notes and the 4.057% Senior Notes due 2023, the 4.417% Senior Notes due 2025, the 4.597% Senior Notes due 2028, the 4.985% Senior Notes due 2038 and the 5.085% Senior Notes due 2048, each as issued by the Issuer pursuant to the Indenture, as supplemented by a separate supplemental indenture with respect to each series of notes.

 

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

 

“ Permitted Encumbrances ” means: (1) Liens imposed by law for taxes, assessments or governmental charges that are not overdue for a period of more than 30 days or that are being contested in good faith; (2) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days (or if more than 30 days overdue, are unfiled and no other action has been taken to enforce such Liens) or are being contested in good faith; (3)(i) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Company or any Subsidiary of the Company; (4) deposits to secure the performance of bids, trade contracts (other than for the repayment of borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case in the ordinary course of business; (5) judgment liens for the payment of money (i) not in excess of $75,000,000 in the aggregate (to the extent not covered by independent third-party insurance) or (ii) in respect of judgments that the Company or a Subsidiary of the Company is in good faith prosecuting an appeal or other proceeding for review or Liens incurred by the Company or a Subsidiary of the Company for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Company or a Subsidiary of the Company is a party; (6) easements, restrictions, rights-of-way and similar encumbrances and minor title defects on real property imposed by law or arising in the ordinary course of business that do not secure any payment obligations and do not, in the aggregate, materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary of the Company; (7) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not (i) interfere in any material respect with the business of the Company and its Subsidiaries, taken as a whole, or (ii) secure any Indebtedness; (8) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; (9) Liens (i) of a collection bank on the items in the course of collection, (ii) attaching to commodity

 

 

trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are customary in the banking industry; (10) any interest or title of a lessor under leases entered into by the Company or any of its Subsidiaries in the ordinary course of business and financing statements with respect to a lessor’s right in and to personal property leased to the Company or any of its Subsidiaries in the ordinary course of the Company’s or any of its Subsidiaries’ business other than through a capital lease; (11) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business; (12) Liens deemed to exist in connection with Permitted Investments and reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes; (13) Liens that are contractual rights of set-off: (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any Subsidiary of the Company to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company and its Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any Subsidiary of the Company in the ordinary course of business; (14) Liens solely on any cash earnest money deposits made by the Company or any of its Subsidiaries in connection with any letter of intent or purchase agreement; (15) ground leases in respect of real property on which facilities owned or leased by the Company or any of its Subsidiaries are located; (16) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; (17) any zoning or similar law or right reserved to or vested in any governmental authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Company or any Subsidiary of the Company; (18) Liens securing indebtedness outstanding or incurred pursuant to credit facilities (including the Term Loan Facility and Revolving Credit Facilities) outstanding on the Issue Date or, upon consummation of the Transactions, the Escrow Merger and the Assumption, at the date of the Assumption; (19) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods; and (20) Liens on the Escrow Account and the Escrowed Property in favor of the Trustee for the benefit of holders of the Notes.

 

“ Permitted Investments ” means: (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof; (b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s; (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United Sates or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) fully collateralized

 

 

repurchase agreements with a term of not more than 30 days for securities described in clause (a)  above and entered into with a financial institution satisfying the criteria described in clause (c)  above; and (e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

 

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

 

“ Principal Property ” means (i) any manufacturing, processing or bottling plant, warehouse or distribution center (including the land upon which it is situated), owned and operated by the Company or any Subsidiary of the Company, provided that the book value of such property is an amount greater than 1% of Consolidated Total Assets of the Company.

 

“ Rating Agencies ” means (a) each of Fitch, Moody’s and S&P; and (b) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the 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) selected by the Company as a replacement Rating Agency for a former Rating Agency.

 

“ Rating Event ” means the rating on the applicable series of Notes is lowered by each of the Rating Agencies and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day within the 60-day period (which 60-day period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (a) the occurrence of a Change of Control and (b) public notice of the occurrence of a Change of Control or intention by the Company to effect a Change of Control; provided that a Rating Event 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 each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Trustee in writing at the Company’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 Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).  If any Rating Agency that provided a rating of a series of Notes on the day immediately prior to the beginning of such 60-day period (or extension thereof) is not providing a rating of the Notes at the end of such 60-day period (or extension thereof) for any reason, such 60-day period (or extension thereof) shall be extended an additional 30 days and, if the Company has not selected a replacement Rating Agency on or before the end of such 30-day period, then such Rating Agency shall be deemed to have lowered its rating of the Notes at the end of such 30-day period to be below an Investment Grade Rating.

 

“ Reference Treasury Dealer ” means (i) each of J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs & Co.  LLC and Citigroup Global Markets Inc. (or their respective affiliates that are primary U.S. Government securities dealers), and their respective successors, or if at any time any of the above is not a primary U.S. Government securities dealer, another nationally recognized investment banking firm selected by

 

 

the Company that is a primary U.S. Government securities dealer and (ii) one other primary U.S. Government securities dealers selected by the Company.

 

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

 

“ Remaining Scheduled Payments ” means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due if such Notes matured on May 25, 2021, excluding accrued but unpaid interest and Additional Interest, if any, to, but excluding, the redemption date.

 

“ Revolving Credit Facilities ” means the revolving credit facilities provided to Maple pursuant to the Credit Agreement, dated February 28, 2018, among Maple, the lenders thereunder, the other financial institutions party thereto and JP Morgan Chase Bank, N.A., as administrative agent.

 

“ S&P ” means S&P Global Ratings.

 

“ Term Loan Facility ” means the term loan facility provided to Maple pursuant to the Term Loan Agreement, dated February 28, 2018, among Maple, the lenders thereunder, the other financial institutions party thereto and JP Morgan Chase Bank, N.A., as administrative agent.

 

“ Transactions ” means the Merger and payment of the special cash dividend pursuant to the Merger Agreement.

 

“ Treasury Rate ” means, for any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity, computed as of the second business day immediately preceding that redemption date, of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date.  The Company shall, prior to such redemption date, provide written notice executed by an Officer of the Company of the Treasury Rate to the Trustee, including the calculation thereof in reasonable detail and such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.

 

“ Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

 

Section 1.02  Other Definitions .

 

Term		Defined in Section
“Interest Payment Date”		2.04(c)
“Maturity Date”		2.04(b)
“Regular Record Date”		2.04(c)

 

---

 

Term		Defined in Section
“Change of Control Offer”		4.01(b)
“Change of Control Payment”		4.01(a)
“Change of Control Payment Date”		4.01(b)(ii)
“Escrow Account”		8.01(a)
“Escrow Conditions”		8.01(b)
“Escrowed Property”		8.01(a)
“Escrow Release”		8.01(b)
“Escrow Release Date”		8.01(b)
“Parent Guarantee”		7.02(a)
“Parent Guarantee Limit”		7.02(a)
“Redemption Price”		3.01
“Special Redemption Notice”		3.02(b)
“Special Mandatory Redemption”		3.02(a)
“Special Mandatory Redemption Date”		3.02(b)
“Special Mandatory Redemption Premium”		3.02(a)
“Special Mandatory Redemption Price”		3.02(a)
“Special Mandatory Redemption Trigger”		3.02(a)
“Surviving Entity”		6.01(a)
“Subsidiary Guarantee”		7.03
“Subsidiary Guarantor”		7.03

 

Section 1.03  Incorporation by Reference of Trust Indenture Act .

 

The Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the Indenture.  The following Trust Indenture Act terms have the following meanings:

 

“ indenture securities ” means the Notes.

 

“ indenture security holder ” means a Holder.

 

“ indenture to be qualified ” means the Indenture as supplemented by this First Supplemental Indenture.

 

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

 

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

 

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

 

 

ARTICLE II

APPLICATION OF SUPPLEMENTAL INDENTURE
AND CREATION, FORMS, TERMS AND CONDITIONS OF NOTES

 

Section 2.01  Application of this First Supplemental Indenture .

 

Notwithstanding any other provision of this First Supplemental Indenture, the provisions of this First Supplemental Indenture, including the covenants set forth herein, are expressly and solely for the benefit of the holders of the Notes.

 

Section 2.02  Creation of the Notes .  In accordance with Section 2.1 of the Indenture, the Issuer hereby creates the Notes as a new series of its Securities issued pursuant to the Indenture.  The Notes shall be issued initially in an aggregate principal amount of $1,750,000,000.

 

Section 2.03  Form of the Notes .  The Notes shall be issued in the form of a Global Note, duly executed by the Issuer and authenticated by the Trustee, which shall be deposited with the Trustee as custodian for DTC and registered in the name of “Cede & Co.,” as the nominee of DTC.  The Notes shall be substantially in the form of Exhibit A attached hereto.  So long as DTC, or its nominee, is the registered owner of a Global Note, DTC or its nominee, as the case may be, shall be considered the sole owner or Holder of the Notes represented by such Global Note for all purposes under the Indenture.  Ownership of beneficial interests in such Global Note shall be shown on, and transfers thereof will be effective only through, records maintained by DTC (with respect to beneficial interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests of beneficial owners).

 

Section 2.04  Terms and Conditions of the Notes .

 

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

 

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

 

(b)                                  Stated Maturity .  The Notes shall mature, and the principal of the Notes shall be due and payable in U.S. Dollars to the Holders thereof, together with all accrued and unpaid interest thereon, on May 25, 2021 (the “ Maturity Date ”).

 

(c)                                   Payment of Principal and Interest .  The Notes shall bear interest at 3.551% per annum, from and including May 25, 2018, or from the most recent Interest Payment Date (as defined hereafter) on which interest has been paid or provided for until the principal thereof becomes due and payable, and on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum.  Interest shall be calculated on the basis of a 360-day year comprised of twelve 30-day months.  Interest on the Notes shall be payable semi-annually in arrears in U.S. Dollars on May 25 and November 25 of each year, commencing on November 25, 2018 (each such date,

 

 

an “ Interest Payment Date ”).  Payments of interest shall be made to the Person in whose name such Note (or predecessor Note) is registered (which shall initially be the Depositary) at the close of business on the May 10 or November 10, as the case may be, next preceding such Interest Payment Date (each such date, a “ Regular Record Date ”).

 

(d)                                  Registration and Form .  The Notes shall be issuable as registered securities as provided in Section 2.03 of this Article II .  The Notes shall be issued and may be transferred only in minimum denomination of $2,000 and integral multiples of $1,000 in excess thereof.  All payments of principal, Redemption Price and accrued unpaid interest in respect of the Notes shall be made by the Issuer prior to the Escrow Merger, and after the Escrow Merger by the Company by wire transfer of immediately available funds in U.S. Dollars to the Depositary or its nominee, as the case may be, as the registered owner of the Global Notes representing such Notes.

 

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

 

(f)                                    Further Issuance .  Notwithstanding anything to the contrary contained herein or in the Indenture, the Issuer may, prior to the Escrow Merger, and after the Escrow Merger the Company may, from time to time, without the consent of or notice to the Holders, create and issue further securities having the same ranking and interest rate, maturity and other terms as the Notes, except for issue date, the public offering price and the first interest payment date and, if such additional securities are issued following consummation of the Transactions, the Escrow Merger and the Assumption, such additional securities will not be subject to the Special Mandatory Redemption provisions described in Section 3.02 of this First Supplemental Indenture.  Additional Notes issued in this manner shall be consolidated with and shall form a single series with the previously outstanding Notes.

 

(g)                                   Redemption .  Upon consummation of the Transactions, the Escrow Merger and the Assumption, the Notes shall be subject to redemption by the Company in whole or in part in the manner described herein.

 

(h)                                  Parent Guarantee .  The full and punctual payment, when due, of the portion of the Issuer’s obligation to redeem the Notes pursuant to the Special Mandatory Redemption, up to the Parent Guarantee Limit, is fully and unconditionally guaranteed by the Parent Guarantor as provided in Article X of the Indenture, as amended or supplemented by Section 7.02 of this First Supplemental Indenture.

 

(i)                                      Sinking Fund .  The Notes are not subject to any sinking fund.

 

(j)                                     Other Terms and Conditions .  The Notes shall have such other terms and conditions as provided in the form thereof attached as Exhibit A hereto.

 

 

ARTICLE III

 

REDEMPTION

 

Section 3.01  Optional Redemption .  Upon consummation of the Transactions, the Escrow Merger and the Assumption, the Company may redeem the Notes at any time or from time to time, in whole or in part, at the Company’s option at a redemption price (the “ Redemption Price ”) equal to the greater of:

 

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

 

(ii)                                   the sum of the present values of the Remaining Scheduled Payments of the Notes to be redeemed, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points,

 

in each case plus accrued and unpaid interest and Additional Interest, if any, to, but excluding the redemption date.

 

Section 3.02  Special Mandatory Redemption .

 

(a)                                  If (i) the Merger is not consummated on or prior to the Escrow End Date, or (ii) at any time prior to the Escrow End Date, the Escrow Conditions are deemed by the Issuer in its good faith and reasonable judgment as evidenced by an Officer’s Certificate delivered to the Trustee to be incapable of being satisfied on or prior to the Escrow End Date, or (iii) at any time prior to the Escrow End Date, the Merger Agreement is terminated (each of such events being a “ Special Mandatory Redemption Trigger ”), the Issuer shall redeem (the “ Special Mandatory Redemption ”) all of the Notes outstanding on the Special Mandatory Redemption Date at the special mandatory redemption price equal to 101% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date (the “ Special Mandatory Redemption Price ”), which includes a premium equal to 1% of the principal amount of the Notes (the “ Special Mandatory Redemption Premium ”).

 

(b)                                  Notwithstanding anything to the contrary in the Indenture, the Issuer shall cause a notice of Special Mandatory Redemption (the “ Special Redemption Notice ”) to be sent to the Trustee and the Escrow Agent within three Business Days following the occurrence of a Special Mandatory Redemption Trigger, which notice shall provide for the redemption of the Notes on the redemption date set forth in such notice (the “ Special Mandatory Redemption Date ”), which redemption date shall be no later than five Business Days from the date of such notice.  Concurrently with delivery of the Special Redemption Notice, the Issuer shall instruct the Trustee to mail or deliver electronically if held by DTC in accordance with DTC’s customary procedures, to the holders of the Notes, a notice that a Special Mandatory Redemption will occur on the Special Mandatory Redemption Date in accordance with the requirements of Section 5.4 of the Indenture.  Unless the Issuer defaults in payment of the Special Mandatory Redemption Price, on and after the Special Mandatory Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.

 

 

Section 3.03  Redemption Procedures . Except as otherwise noted in this First Supplemental Indenture, the redemption procedures set forth in Article V of the Indenture shall apply to any redemption of the Notes.

 

ARTICLE IV

 

CHANGE OF CONTROL

 

Section 4.01  Change of Control .

 

(a)                                  Upon the occurrence of a Change of Control Triggering Event, unless all Notes have been called for redemption pursuant to Section 3.01 or Section 3.02 hereof, the Issuer or, following consummation of the Transactions, the Escrow Merger and the Assumption, the Company, will offer to repurchase all or any part (equal to an integral multiple of $1,000) of each Holder’s Notes at an offer price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest and Additional Interest, if any, on the Notes repurchased to, but excluding, the date of purchase (the “ Change of Control Payment ”).

 

(b)                                  Within 30 days following any Change of Control Triggering Event or, at the Issuer’s or Company’s option, as applicable, prior to any proposed Change of Control, but after the public announcement of the proposed Change of Control, the Issuer or the Company, as applicable, shall deliver, or cause to be delivered, a notice (a “ Change of Control Offer ”) to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase the Notes and specifying:

 

(i)                                      that the Change of Control Offer is being made pursuant to this Section 4.01 and that all Notes tendered will be accepted for payment;

 

(ii)                                   the Change of Control Payment and the purchase date, which shall be a Business Day no earlier than 30 days and no later than 60 days from the date such notice is delivered (the “ Change of Control Payment Date ”);

 

(iii)                                the CUSIP numbers for the Notes;

 

(iv)                               that any Note not tendered will continue to accrue interest;

 

(v)                                  that, unless the Issuer or the Company, as applicable, defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest from and after the Change of Control Payment Date;

 

(vi)                               that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

 

 

(vii)                            that Holders will be entitled to withdraw their election referred to in clause (vi) if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his or her election to have the Notes purchased;

 

(viii)                         that Holders whose Notes of any series are being purchased only in part will be issued new Notes of such series equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion will be equal to a minimum denomination of $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; and

 

(ix)                               if the notice is delivered prior to the date of consummation of the Change of Control, that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the payment date specified in the notice.

 

(c)                                   The Issuer or the Company, as applicable, shall comply with the requirements of Rule 14e-1 under 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 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 the provisions of this Section 4.01 , the Issuer or the Company, as applicable, will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.01 by virtue of such conflict.

 

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

 

(i)                                      accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;

 

(ii)                                   deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered and not withdrawn; and

 

(iii)                                deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer or the Company, as applicable.

 

(e)                                   The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note of the same series equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.  The Issuer or the Company, as applicable, will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

 

 

(f)                                    The Issuer or the Company, as applicable, shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.01 applicable to a Change of Control Offer made by the Issuer or the Company, as applicable, and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer.  In addition, notwithstanding the provisions of this Section 4.01 , if an Event of Default exists under the Indenture (which is unrelated to the repurchase provisions of this Section 4.01 ), including Events of Default arising with respect to other series of Securities, the Issuer or the Company, as applicable, shall not be required to repurchase the Notes.

 

ARTICLE V

 

COVENANTS

 

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

 

Section 5.01  Limitation on Secured Indebtedness .

 

The Company shall not, and shall not permit any Subsidiary to, incur, issue, assume, or guarantee any Indebtedness secured by a Lien on any Principal Property or on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property, whether now owned or hereafter acquired by the Company or any Subsidiary of the Company, without effectively providing that the outstanding Notes, the Parent Guarantee, if any, and the Subsidiary Guarantees, if any (together with, if the Company shall so determine, any other Indebtedness of the Company or such Subsidiary then existing or thereafter created which is not subordinate to the Notes, the Parent Guarantee, if any, and the Subsidiary Guarantees, if any) shall be secured equally and ratably with (or prior to) such secured Indebtedness so long as such secured Indebtedness shall be so secured.  The foregoing restrictions do not apply to:

 

(a)                                  Permitted Encumbrances;

 

(b)                                  Liens on any asset or property at the Issue Date or, upon consummation of the Transactions, the Escrow Merger and the Assumption, at the date of the Assumption, provided that,

 

(i)                                      such Liens shall not apply to any other property or asset of the Company or any Subsidiary of the Company (other than the proceeds or products of the property or asset originally subject to such Liens), and

 

(ii)                                   such Liens shall secure only those obligations which it secures on the Issue Date or, upon the consummation of the Transactions, the Escrow Merger and the Assumption, at the date of the Assumption, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

 

(c)                                   Liens on any asset or property of any corporation or other Person at the time such corporation or other Person becomes a Subsidiary of the Company, or is merged with or into or consolidated with the Company or any Subsidiary of the Company, provided that,

 

(i)                                      such Liens were in existence prior to such corporation or other Person becoming an obligor under this First Supplemental Indenture, or becoming a Subsidiary of the Company, or such merger or consolidation and shall not apply to any other property or asset of the Company or any Subsidiary of the Company (other than the proceeds or products of the property or asset originally subject to such Liens), and

 

(ii)                                   such Liens shall secure only those obligations which it secures on the date that such corporation or other Person becomes an obligor under the Notes, a Subsidiary of the Company or the date of such merger or consolidation, and

 

(iii)                                extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

(d)                                  Liens securing Indebtedness of

 

(i)                                      a Subsidiary of the Company to the Company or a Subsidiary Guarantor,

 

(ii)                                   the Company to a Subsidiary Guarantor, or

 

(iii)                                the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor;

 

(e)                                   Liens on any property or asset to secure the payment of all or any part of the Capital Lease Obligations or purchase price of such property or asset upon the acquisition or lease of such property or asset by the Company or a Subsidiary of the Company, or to secure any Indebtedness incurred prior to, at the time of, or within 270 days after, the later of the date of acquisition or lease of such property or asset and the date such property or assets is placed in service, for the purpose of financing all or any part of the purchase price thereof or Capital Lease Obligations with respect thereto, or Liens to secure any Indebtedness incurred for the purpose of financing the cost to the Company or a Subsidiary of the Company of construction, alteration or improvement to such acquired property or asset;

 

(f)                                    Liens securing industrial revenue bonds, pollution control bonds or other similar tax-exempt bonds;

 

(g)                                   any other Liens incidental to construction or maintenance of real property of the Company or any Subsidiary of the Company which were not incurred in connection with borrowing money or obtaining advances or credits or the acquisition of property or assets and in the aggregate do not materially impair the use of any property or assets or which are being contested in good faith by the Company or such Subsidiary of the Company, as applicable; or

 

(h)                                  any extension, renewal or replacement (including successive extensions, renewals or replacements), as a whole or in part, of any of the Liens enumerated in clauses (a)  through (g)  above; provided , however , that

 

 

(i)                                      such extension, renewal or replacement Liens are limited to all or part of the same property or asset that secured the Liens extended, renewed, or replaced (plus improvements on such property or asset), and

 

(ii)                                   the principal amount of Indebtedness secured by such Liens at such time is not increased.

 

Section 5.02  Limitation on Sale and Leaseback Transactions .

 

The Company shall not directly or indirectly, and shall not permit any Subsidiary directly or indirectly to, engage in the sale or transfer of any Principal Property to a Person and the taking back by the Company or any of its Subsidiaries, as the case may be, of a lease of such Principal Property, whether now owned or hereafter acquired, unless:

 

(a)                                  such transaction was entered into prior to the Issue Date or, upon consummation of the Transactions, the Escrow Merger and the Assumption, at the date of the Assumption;

 

(b)                                  such transaction was for the sale and leasing back to the Company by any one of its Subsidiaries;

 

(c)                                   such transaction involves a lease for not more than three years;

 

(d)                                  such transaction occurs within six months from the date of acquisition of the subject Principal Property or the date of the completion of construction or commencement of full operations of such Principal Property, whichever is later;

 

(e)                                   the Company or such Subsidiary would be entitled to incur Attributable Debt secured by a Lien with respect to such sale and leaseback transaction without equally and ratably securing the Notes under Sections 5.01(a)  through (h)  of this First Supplemental Indenture; or

 

(f)                                    the Company or such Subsidiary applies an amount equal to the net proceeds from the sale of such Principal Property to the purchase of other property or assets used or useful in its business or to the retirement of Funded Debt within 270 days before or after the effective date of any such sale and leaseback transaction; provided that, in lieu of applying such amount to the retirement of Funded Debt, the Company or such Subsidiary may deliver any of the Notes in equal principal amount to the Trustee for cancellation, such Notes to be credited to the amount of net proceeds from the sale of such property or assets at the cost of acquisition of such Notes to the Company or such Subsidiary.

 

Section 5.03  Exceptions .

 

Notwithstanding the restrictions set forth in Sections 5.01 and 5.02 of this First Supplemental Indenture, the Company and its Subsidiaries may incur, issue, assume or guarantee Indebtedness secured by a Lien on any Principal Property or on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property (whether now owned or hereafter acquired by the Company or any Subsidiary of the Company), or engage in the sale or transfer of any Principal Property and the leaseback of such Principal Property by the Company or any of its Subsidiaries, provided that at the time of such restricted transaction, and

 

 

after giving effect thereto, the aggregate principal amount of all Indebtedness secured by Liens on any Principal Property or on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property (not including Indebtedness secured by Liens permitted under Sections 5.01(a)  through (h) ), together with the aggregate amount of Attributable Debt outstanding in respect of sale and leaseback transactions (not including Attributable Debt with respect to sale and leaseback transactions permitted under Sections 5.02(a)  through (f) ), does not exceed 15% of Consolidated Total Assets of the Company.

 

Section 5.04  Limitation of Activities of Issuer .  Prior to the Escrow Release Date, the Issuer’s primary activities shall be restricted to issuing the Merger Financing Notes, issuing capital stock and receiving capital contributions, performing its obligations in respect of the Merger Financing Notes under the Purchase Agreement, the Indenture, this First Supplemental Indenture and Escrow Agreement, performing its obligations under the Merger Agreement, consummating the Transactions, the Escrow Merger and the Assumption and the Escrow Release, redeeming the Notes pursuant to the Special Mandatory Redemption or any other series of Merger Financing Notes pursuant to the special mandatory redemption applicable thereto, if applicable, and conducting such other activities as are necessary or appropriate to carry out the activities pursuant to this Section 5.04 and in the Merger Agreement.  Prior to the Escrow Release Date, the Issuer will not own, hold or otherwise have any interest in any assets other than the Escrow Account, Escrowed Property, cash and cash equivalents and its rights under the Merger Agreement.

 

Section 5.05  Reports . Section 3.2 of the Indenture is hereby amended such that all references to the “Issuer” shall apply to the “Company.”

 

ARTICLE VI

 

MERGER, CONSOLIDATION OR SALE OF ASSETS

 

Article IV of the Indenture shall be superseded by this Article VI with respect to the Notes.

 

Section 6.01  Merger, Consolidation or Sale of Assets .  Except for the Transactions, the Escrow Merger and the Assumption (each of which is explicitly permitted), the Issuer or, following consummation of the Transactions, the Escrow Merger and the Assumption, the Company, shall not consolidate or combine with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all of its assets to any Person or Persons in a single transaction or through a series of transactions, unless:

 

(a)                                  the Issuer or the Company, as applicable, shall be the successor or continuing Person or, if the Issuer or the Company, as applicable, is not the successor or continuing Person, the resulting, surviving or transferee Person (the “ Surviving Entity ”) is a company organized and existing under the laws of the United States, any State thereof or the District of Columbia that expressly assumes all of the Issuer’s or the Company’s obligations, as applicable, under the Notes, the Indenture and this First Supplemental Indenture pursuant to a supplement hereto executed and delivered to the Trustee;

 

 

(b)                                  immediately after giving effect to such transaction or series of transactions, no Event of Default has occurred and is continuing; and

 

(c)                                   the Issuer, Company or the Surviving Entity shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel stating that the transaction or series of transactions and any supplement hereto complies with the terms of the Indenture and this First Supplemental Indenture.

 

If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other disposition of all or substantially all of the Issuer’s or the  Company’s assets occurs in accordance with the terms hereof, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of the Issuer or the Company, as applicable under the Indenture and this First Supplemental Indenture with the same effect as if such Surviving Entity had been named as the Company.  The Issuer or the Company, as applicable, shall (except in the case of a lease) be discharged from all obligations and covenants under the Indenture and this First Supplemental Indenture and any Notes issued hereunder, and may be liquidated and dissolved.  Notwithstanding the foregoing, the Issuer may merge or consolidate with the Parent Guarantor and the Company may merge or consolidate into or with any Subsidiary Guarantor.

 

ARTICLE VII

 

AGREEMENT TO BE BOUND; SECURITIES GUARANTEE

 

Section 7.01  Agreements to be Bound .  The Parent Guarantor hereby becomes a party to the Indenture as a Parent Guarantor and as such shall have all of the rights and be subject to all of the obligations and agreements of the Parent Guarantor under the Indenture, as amended and supplemented by this First Supplemental Indenture.  The Parent Guarantor agrees to be bound by all of the provisions of the Indenture applicable to the Parent Guarantor and to perform all of the obligations and agreements of the Parent Guarantor under the Indenture, as amended and supplemented by this First Supplemental Indenture.

 

Section 7.02  Parent Guarantee .

 

(a)                                  The Parent Guarantor hereby unconditionally and irrevocably guarantees (the “ Parent Guarantee ”) to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns the full and punctual payment, when due, of the portion of the Issuer’s obligation to redeem the Notes pursuant to Section 3.02 equal to the Special Mandatory Redemption Premium plus any amount in excess of the amount of Escrow Property to be released by the Escrow Agent pursuant to Section 8.01 of this First Supplemental Indenture necessary to fund the Special Mandatory Redemption (the “ Parent Guarantee Limit ”).

 

(b)                                  Upon the consummation of the Transactions, the Escrow Merger and the Assumption, the Parent Guarantee shall be automatically and unconditionally released and discharged, without the consent of the holders of the Notes, and no further action by the Issuer, the Company, any Subsidiary Guarantor or the Trustee shall be required for such release and discharge.

 

 

(c)                                   Other than provided in Section 7.02(a)  and Section 7.02(b)  of this First Supplemental Indenture, the Parent Guarantor agrees to be bound by the terms set forth in Article X of the Indenture.  To the extent any provision of Article X of the Indenture contradicts Section 7.02(a)  or Section 7.02(b) , the terms, limitations and obligations set forth in Section 7.02(a)  and Section 7.02(b)  of this First Supplemental Indenture shall govern the Parent Guarantee.

 

Section 7.03  Future Subsidiary Guarantors .  Upon the consummation of the Transaction, the Escrow Merger and the Assumption, the Company shall cause any Subsidiary of the Company that guarantees, directly or indirectly, any Indebtedness of the Company (including any notes issued by DPSG that remain outstanding upon consummation of the Transactions) to at the same time, execute and deliver to the Trustee a supplement to the Indenture pursuant to which such Subsidiary will, jointly and severally, fully, unconditionally and irrevocably guarantee (the “ Subsidiary Guarantee ”) the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal and interest on and Additional Interest, if any, the Notes and all of the Company’s other monetary Obligations under the Indenture on the same terms and conditions as those set forth in Article X of the Indenture.  Thereafter, such Subsidiary shall be a Guarantor for all purposes of the Indenture and a “ Subsidiary Guarantor ” for purposes of this First Supplemental Indenture, until such Subsidiary Guarantee is released in accordance with the provisions of the Indenture, as amended and supplemented by this First Supplemental Indenture.  For the avoidance of doubt, the terms, limitations and obligations set forth in Section 7.02(a)  and Section 7.02(b)  shall not apply to any Subsidiary Guarantee.

 

ARTICLE VIII

 

ESCROW MATTERS

 

Section 8.01  Escrow of Proceeds; Escrow Conditions .

 

(a)                                  Unless the Merger is consummated substantially concurrently with the Issue Date, on the Issue Date, the Issuer, the Escrow Agent and the Trustee shall enter into the Escrow Agreement and on the Issue Date, the Issuer shall deposit or cause to be deposited, an amount equal to the net proceeds of the offering of the Notes sold on the Issue Date, plus an amount equal to at least five days of interest accrued on the Notes, into an escrow account established at the Escrow Agent in the name of the Issuer (the “ Escrow Account ” and together with such deposited amount and all funds, securities or other property now or hereafter credited to the Escrow Account, plus all investments, interest, dividends, proceeds and other distributions and payments on any of the foregoing, the “ Escrowed Property ”).  In addition, on or prior to the date that is five Business Days prior to the last day of each month, from and including May 2018 through and including November 2018 (in each case, unless the Escrow Release has occurred), the Issuer shall deposit or cause to be deposited into the Escrow Account an amount of cash equal to the amount of interest that will accrue on the Notes from (and including) the first day of the following month through (and including) the last day of such following month.

 

(b)                                  The Issuer shall be entitled to direct the Escrow Agent to release the Escrowed Property in accordance with the procedures contained in the Escrow Agreement (the “ Escrow Release ”), including the delivery to the Trustee and Escrow Agent, on or prior to the Escrow End

 

 

Date, of an officer’s certificate (in form and substance required pursuant to the terms of the Escrow Agreement), certifying that the following conditions (the “ Escrow Conditions ”) have been met (the date of the Escrow Release is hereinafter referred to as the “ Escrow Release Date ”):

 

(i)                                      substantially concurrently with the Escrow Release, all of the conditions precedent to the consummation of the Merger shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied substantially concurrently with the consummation of the Merger);

 

(ii)                                   no default or event of default shall have occurred and be continuing under the Indenture and this First Supplemental Indenture; and

 

(iii)                                substantially concurrently with the Escrow Release, the Assumption shall have occurred and the Subsidiary Guarantees, if any, shall be effective.

 

Section 8.02  Special Mandatory Redemption .

 

If a Special Mandatory Redemption of the Notes is to occur pursuant to Section 3.02 hereof, the Escrow Agent will cause the liquidation of all Escrowed Property then held by it and cause the release of the proceeds of such liquidated Escrowed Property to the Trustee in accordance with the terms of the Escrow Agreement.  The Trustee shall apply such proceeds to the payment of the Special Mandatory Redemption Price, as set forth in Section 3.02 hereof.

 

Section 8.03  Release of Escrowed Property .

 

Upon the satisfaction of the Escrow Conditions, the Escrow Agent will cause the liquidation of all Escrowed Property then held by it and cause the release of the proceeds of such liquidated Escrowed Property to or on the order of the Issuer on the Escrow Release Date in accordance with the terms of the Escrow Agreement.

 

Section 8.04  Trustee Direction to Execute Escrow Agreement .

 

The Trustee is hereby authorized and directed to execute and deliver the Escrow Agreement.

 

ARTICLE IX

 

AMENDMENTS

 

Section 9.01  Amendments .  Section 9.1 of the Indenture shall be amended to add the following provision immediately after clause (14) thereof:

 

“(15) to consummate the Escrow Merger and the Assumption.”

 

 

ARTICLE X

 

MISCELLANEOUS

 

Section 10.01  Ratification of Indenture .

 

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

 

Section 10.02  Trust Indenture Act Controls .

 

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

 

Section 10.03  Notices .

 

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

 

Section 10.04  Governing Law; Waiver of Jury Trial .

 

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

 

Section 10.05  Successors .

 

All agreements of the Issuer, the Company and the Parent Guarantor in this First Supplemental Indenture and the Notes shall bind their successors.  All agreements of the Trustee in this First Supplemental Indenture shall bind its successors.

 

Section 10.06  Multiple Originals .

 

The parties may sign any number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  One signed copy is enough to prove this First Supplemental Indenture.

 

 

Section 10.07  Headings .

 

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

 

Section 10.08  Trustee Not Responsible for Recitals .

 

The recitals contained herein shall be taken as statements of the Issuer and the Parent Guarantor, and the Trustee does not assume any responsibility for their correctness.  The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this First Supplemental Indenture and perform its obligations hereunder.

 

Section 10.09  Restrictions on Transfer .

 

The Notes will be subject to certain restrictions on transfer as set forth in Appendix A hereto.

 

 

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

 

	ISSUER:
	MAPLE ESCROW SUBSIDIARY, INC.
	By:	/s/ Ozan Dokmecioglu
		Name:	Ozan Dokmecioglu
		Title:	Treasurer

 

 

	PARENT GUARANTOR:
	MAPLE PARENT HOLDINGS CORP.
	By:	/s/ Ozan Dokmecioglu
		Name:	Ozan Dokmecioglu
		Title:	Chief Financial Officer

 

 

	TRUSTEE:
	WELLS FARGO BANK, N.A., as Trustee
	By:	/s/ Patrick T. Giordano
		Name:	Patrick T. Giordano
		Title:	Vice President

 

 

APPENDIX A

 

PROVISIONS RELATING TO THE NOTES

 

1.1.                             Definitions .

 

For the purposes of this Appendix A the following terms shall have the meanings indicated below:

 

“ Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City or the Corporate Trust Office are authorized or obligated by law or executive order to close.

 

“ Definitive Notes ” means a certificated Note (bearing the Restricted Securities Legend if the transfer of such Note is restricted by applicable law) that does not include the Global Notes Legend.

 

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

 

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

 

“ Global Notes Legend ” means the legend set forth under that caption in the applicable Exhibit to this Appendix A.

 

“ IAI ” means an institutional “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.

 

“ Initial Purchasers ” means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs & Co.  LLC, Citigroup Global Markets Inc, Banca IMI S.p.A., BNP Paribas Securities Corp., Credit Agricole Securities (USA) LLC, Mizuho Securities USA LLC, Morgan Stanley & Co.  LLC, Rabo Securities USA, Inc., RBC Capital Markets, LLC, Wells Fargo Securities, LLC as initial purchasers under the Purchase Agreement entered into in connection with the offer and sale of the Notes.

 

“ Non-U.S. Person ” means a person who is not a U.S. person, as defined in Regulation S.

 

“ Purchase Agreement ” means the Purchase Agreement dated May 14, 2018, among the Issuer, Maple and the representatives of the Initial Purchasers.

 

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

 

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

 

“ Registration Rights Agreement ” means (i) Registration Rights Agreement, dated the Issue Date, by and among the Issuer and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs & Co.  LLC and Citigroup Global Markets Inc.,

 

 

as representatives of the several purchasers named therein and (ii) with respect to any additional Notes issued from time to time after the date of the First Supplemental Indenture in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Issuer and the persons purchasing such additional Notes under the related Purchase Agreement.

 

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

 

“ Regulation S Notes ” means all Notes offered and sold outside the United States in reliance on Regulation S.

 

“ Restricted Period, ” with respect to any Notes, means the period of 40 consecutive days beginning on and including the later of (a) the day on which such Notes are first offered to persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S, notice of which day shall be promptly given by the Issuer or the Company, as applicable, to the Trustee, and (b) the Issue Date.

 

“ Restricted Notes Legend ” means the legend set forth in Section 2.2(f)(i)  herein.

 

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

 

“ Rule 144A Notes ” means all Notes offered and sold to QIBs in reliance on Rule 144A.

 

“ Rule 501 ” means Rule 501(a)(1), (2), (3) or (7) under the Securities Act.

 

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ Shelf Registration Statement ” means the shelf registration statement issued by the Issuer in connection with the offer and sale of the Notes pursuant to the Registration Rights Agreement.

 

“ Transfer Restricted Notes ” means Definitive Notes and any other Notes that bear or are required to bear or are subject to the Restricted Notes Legend.

 

“ Unrestricted Definitive Note ” means Definitive Notes and any other Notes that are not required to bear, or are not subject to, the Restricted Notes Legend.

 

“ Unrestricted Global Note ” means Global Notes and any other Notes that are not required to bear, or are not subject to, the Restricted Notes Legend.

 

1.2.                             Other Definitions .

 

Term		Defined in Section:
Agent Members		2.1(b)
Clearstream		2.1(b)
Euroclear		2.1(b)
Global Notes		2.1(b)
Regulation S Global Notes		2.1(b)

 

---

 

Term		Defined in Section:
Rule 144A Global Notes		2.1(b)

 

2.                                       The Notes .

 

2.1.                             Form and Dating; Global Notes .

 

(a)                                  The Notes issued on the date hereof will be (i) offered and sold by the Issuer pursuant to the Purchase Agreement and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S.  Such Notes may thereafter be transferred to, among others, QIBs, purchasers in reliance on Regulation S and, except as set forth below, IAIs in accordance with Rule 501.

 

(b)                                  Global Notes.  (i)  Rule 144A Notes initially shall be represented by one or more Notes in definitive, fully registered, global form without interest coupons (collectively, the “ Rule 144A Global Notes ”).

 

Regulation S Notes initially shall be represented by one or more Notes in fully registered, global form without interest coupons (the “ Regulation S Global Notes ”), which shall be registered in the name of the Depository or the nominee of the Depository for the accounts of designated agents holding on behalf of Euroclear Bank S.A./N.V., as operator of the Euroclear system (“ Euroclear ”) or Clearstream Banking, Société Anonyme (“ Clearstream ”) and such Regulation S Global Notes shall be deemed to be a “temporary global security” for purposes of Rule 904 under Regulation S until the expiration of the Restricted Period.

 

The aggregate principal amount of the Regulation S Global Note 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 the case may be, in connection with transfers of interest as hereinafter provided.

 

The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by participants through Euroclear or Clearstream.

 

The term “ Global Notes ” means the Rule 144A Global Notes and the Regulation S Global Notes.  The Global Notes shall bear the Global Note Legend.  The Global Notes initially shall (i) be registered in the name of the Depository or the nominee of such Depository, in each case for credit to an account of an Agent Member, (ii) be delivered to the Trustee as custodian for such Depository and (iii) bear the Restricted Notes Legend.

 

Members of, or direct or indirect participants in, the Depository (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depository, or the Trustee as its custodian, or under the Global Notes.  The Depository may be treated by the Issuer, the Company, the Trustee and any agent of the Issuer, the Company or the Trustee as the absolute owner of the Global Notes for all purposes whatsoever.  Notwithstanding

 

 

the foregoing, nothing herein shall prevent the Issuer, the Company, the Trustee or any agent of the Issuer, 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 governing the exercise of the rights of a Holder of any Note.

 

(ii)                                   Transfers of Global Notes shall be limited to transfer in whole, but not in part, to the Depository, its successors or their respective nominees.  Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes only in accordance with the applicable rules and procedures of the Depository and the provisions of Section 2.2 .  In addition, a Global Note shall be exchangeable for Definitive Notes if (x) the Depository (1) notifies the Issuer or the Company, as applicable, that it is unwilling or unable to continue as depository for such Global Note and the Issuer or Company, as applicable, thereupon fails to appoint a successor depository within 90 days or (2) has ceased to be a clearing agency registered under the Exchange Act, (y) the Issuer or the Company, as applicable, at its option, notifies the Trustee that it elects to cause the issuance of Definitive Notes or (z) there shall have occurred and be continuing an Event of Default with respect to such Global Note and the Depository shall have requested such exchange; provided that in no event shall the Regulation S Global Note be exchanged by the Issuer or the Company, as applicable, for Definitive Notes prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.  In all cases, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein shall be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depository in accordance with its customary procedures.

 

(iii)                                In connection with the transfer of a Global Note as an entirety to beneficial owners pursuant to subsection (ii) of this Section 2.1(b) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer or the Company, as applicable, shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner identified by the Depository in writing in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.

 

(iv)                               Any Transfer Restricted Note delivered in exchange for an interest in a Global Note pursuant to Section 2.2 shall, except as otherwise provided in Section 2.2 , bear the Restricted Notes Legend.

 

(v)                                  Notwithstanding the foregoing, through the Restricted Period, a beneficial interest in such Regulation S Global Note may be held only through Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 2.2 .

 

(vi)                               The Holder of any Global Note may 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 the Indenture or the Notes.

 

 

2.2.                             Transfer and Exchange .

 

(a)                                  Transfer and Exchange of Global Notes .  A Global Note may not be transferred as a whole except as set forth in Section 2.1(b) .  Global Notes will not be exchanged by the Issuer or the Company, as applicable, for Definitive Notes except under the circumstances described in Section 2.1(b)(ii) .  Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.8 and 2.9 of the Indenture.  Beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.2(b) , 2.2(c)  or 2.2(g) .

 

In the event that a Restricted Global Note is exchanged for certificated Notes, prior to the effectiveness of a Shelf Registration Statement with respect to such Notes, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of Section 2.2(b) (including the certification requirements set forth on the reverse of the Notes intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be) and such other procedures as may from time to time be adopted by the Issuer.

 

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

 

(i)                                      Transfer of Beneficial Interests in the Same Global Note .  Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Restricted Notes Legend; 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 (other than an Initial Purchaser).  A beneficial interest in an Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.2(b)(i) .

 

(ii)                                   All Other Transfers and Exchanges of Beneficial Interests in Global Notes .  In connection with all transfers and exchanges of beneficial interests in any Global Note that is not subject to Section 2.2(b)(i) , the transferor of such beneficial interest must deliver to the Registrar (1) a written order from an Agent Member given to the Depository in accordance with the applicable rules and procedures of the Depository directing the Depository to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the applicable rules and procedures of the Depository containing information regarding the Agent Member account to be credited