LINCOLN NATIONAL CORP false 0000059558 0000059558 2021-08-11 2021-08-11

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

August 11, 2021

Date of Report (Date of earliest event reported)

 

 

Lincoln National Corporation

(Exact name of registrant as specified in its charter)

 

 

 

Indiana   1-6028   35-1140070

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

150 N. Radnor Chester Road, Radnor, PA 19087

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (484) 583-1400

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

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

 

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

 

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

 

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

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock   LNC   New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 


Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 8.01 in the section entitled “Issuance of Subordinated Notes” is incorporated by reference into this Item 2.03.

Item 8.01. Other Events.

On August 11, 2021, Lincoln National Corporation (the “Company”) completed its previously announced offers to exchange all validly tendered and accepted 7.00% Capital Securities due 2066 (the “2066 capital securities”) and 6.05% Capital Securities due 2067 (the “2067 capital securities” and, collectively with the 2066 capital securities, the “capital securities”) previously issued by the Company for newly issued subordinated notes of the Company and the related solicitations of consents to amend the indentures governing the capital securities to eliminate various terms and conditions and other provisions (such offers to exchange, together with such consent solicitations, the “exchange offers” and such amendments the “proposed amendments”). Pursuant to the exchange offers, the aggregate principal amount of the capital securities set forth below were validly tendered, accepted and cancelled:

 

   

$562,034,000 aggregate principal amount of 2066 capital securities

 

   

$432,743,000 aggregate principal amount of 2067 capital securities

Following such cancellations, $160,493,000 aggregate principal amount of 2066 capital securities and $57,967,000 aggregate principal amount of 2067 capital securities remain outstanding.

Upon receipt of the requisite number of consents to adopt the proposed amendments, on August 11, 2021, the Company and The Bank of New York Mellon Trust Company, N.A., as trustee to the indentures governing the capital securities, executed supplemental indentures pursuant to which the proposed amendments became effective on August 11, 2021 with respect to each series of capital securities. Copies of the Sixth Supplemental Junior Subordinated Indenture (with respect to the 2066 capital securities) and the Seventh Supplemental Junior Subordinated Indenture (with respect to the 2067 capital securities) are filed as Exhibit 4.1 and Exhibit 4.2, respectively, hereto and incorporated by reference into this Item 8.01.

Filed as Exhibit 99.1 and incorporated herein by reference is a copy of the Company’s press release dated August 9, 2021 announcing the expiration and results of the exchange offers.

Issuance of Subordinated Notes

On August 11, 2021, in connection with the settlement of the exchange offers, the Company issued $562,034,000 aggregate principal amount of Floating Rate Subordinated Notes due 2066 (the “2066 subordinated notes”) and $432,743,000 aggregate principal amount of Floating Rate Subordinated Notes due 2067 (the “2067 subordinated notes” and, collectively with the 2066 subordinated notes, the “subordinated notes”). The exchange offers were registered under the Securities Act of 1933, as amended (the “Act”) pursuant to a Registration Statement on Form S-4 (No. 333-257743), which was filed with the Securities and Exchange Commission (the “SEC”) on July 7, 2021 and became effective on August 5, 2021. The terms of the subordinated notes are further described in the Company’s prospectus, dated as of August 5, 2021, as filed with the SEC under Rule 424(b)(3) of the Act on August 6, 2021.

The subordinated notes are governed by a Subordinated Indenture, dated August 11, 2021 (the “Base Indenture”) between the Company and The Bank of New York Mellon, as trustee (the “Trustee”), as supplemented by the First Supplemental Subordinated Indenture, dated August 11, 2021 (the “First Supplemental Indenture”), between the Company and the Trustee, and the Second Supplemental Subordinated Indenture, dated August 11, 2021 (the “Second Supplemental Indenture,” and, together with the Base Indenture and the First Supplemental Indenture, the “Indentures”), between the Company and the Trustee.

The subordinated notes are unsecured subordinated obligations of the Company, rank senior to all of the capital securities, will rank pari passu, or equally, with all of the Company’s future unsecured subordinated debt the terms


of which provide that such indebtedness ranks equally with the subordinated notes and certain other obligations and rank, or will rank, junior to all of the Company’s existing and future senior debt. The subordinated notes are structurally subordinated to all existing and future liabilities of the Company’s subsidiaries and effectively subordinated to the Company’s secured indebtedness to the extent of the value of the collateral securing such indebtedness.

The 2066 subordinated notes will accrue interest at an annual rate of the benchmark, as defined in the Indentures, which will initially be 3-month LIBOR, plus a margin equal to 2.3575%, payable quarterly in arrears on February 17, May 17, August 17 and November 17 of each year, beginning on August 17, 2021. The 2067 subordinated notes will accrue interest at an annual rate of the benchmark, which will initially be 3-month LIBOR, plus a margin equal to 2.0400%, payable quarterly in arrears on January 20, April 20, July 20 and October 20 of each year, beginning on October 20, 2021. In each case, the interest rate will be determined by reference to a different reference rate than 3-month LIBOR if the Company or its designee determines that a benchmark transition event and its related benchmark replacement date, each as defined in the Indentures, have occurred with respect to 3-month LIBOR. Upon the occurrence of a benchmark transition event and its related benchmark replacement date, the interest rate for each interest payment period will be an annual rate equal to the sum of (i) the benchmark replacement, as defined in the Indentures, and (ii) the applicable margin of 2.3575% with respect to the 2066 subordinated notes and 2.0400% with respect to the 2067 subordinated notes. The initial benchmark replacement will be the sum of (i) the ISDA fallback rate, which is the rate that would apply for derivatives transactions referencing the International Swaps and Derivatives Association, Inc. (“ISDA”) definitions effective upon the occurrence of an index cessation date with respect to 3-month LIBOR excluding the ISDA fallback adjustment, as defined in the Indentures, and (ii) the ISDA fallback adjustment. On March 5, 2021, ISDA issued a statement that the fallback spread adjustment for all U.S. dollar LIBOR settings is fixed as of March 5, 2021; accordingly, the ISDA fallback adjustment for 3-month U.S. dollar LIBOR is equal to 0.26161%. Additional details regarding the interest provisions for the subordinated notes are set forth in the Indentures.

The 2066 subordinated notes will mature on May 17, 2066. The 2067 subordinated notes will mature on April 20, 2067. The subordinated notes are redeemable, in whole but not in part, at the Company’s option, at any time or from time to time prior to August 11, 2026, within 90 days after the occurrence of certain events, at a redemption price equal to (i) in the case of a “tax event” or a “regulatory capital event”, in each case as defined in the Indentures, their principal amount or (ii) in the case of a “rating agency event”, as defined in the Indentures, at a redemption price equal to 102% of their principal amount, and in the case of clause (i) and (ii), plus accrued and unpaid interest to but excluding the date of redemption. At any time and from time to time on or after August 11, 2026, the subordinated notes are redeemable at the Company’s option, in whole or in part, at a redemption price equal to 100% of the principal amount of the subordinated notes to be redeemed plus accrued and unpaid interest to but excluding the date of redemption; provided that if the subordinated notes are not redeemed in whole, at least $25 million aggregate principal amount of the applicable series of subordinated notes, excluding any subordinated notes held by the Company or any of its affiliates, must remain outstanding after giving effect to such redemption and all accrued and unpaid interest, including deferred interest, must be paid in full on all outstanding subordinated notes for all interest periods ending on or before the date of redemption.

The Indentures provide that an event of default with respect to the subordinated notes shall occur only upon certain events of bankruptcy, insolvency or receivership involving the Company. If an event of default exists occurs and continues under the Indentures, the principal amount of the subordinated notes will automatically become due and payable without any declaration or other action on the part of the Trustee or any holder of the subordinated notes.

So long as no event of default with respect to the subordinated notes has occurred and is continuing, the Company may elect at one or more times to defer payment of interest on a series of the subordinated notes for one or more consecutive interest periods that do not exceed five years for a single deferral period, as defined in the Indentures. The Company may not defer interest beyond the applicable maturity date of the subordinated notes, any earlier accelerated maturity date arising from an event of default or any other earlier redemption of the subordinated notes. During a deferral period, interest will continue to accrue on the subordinated notes, and deferred interest will bear additional interest at the then-applicable interest rate, compounded on each interest payment date, subject to applicable law. At the end of five years following the commencement of a deferral period, the Company must pay all accrued and unpaid deferred interest, including compounded interest and if all deferred interest (including compounded interest thereon) has been paid on a series of subordinated notes, the Company may again defer interest


payments on that series of subordinated notes. If the Company has given notice of its election to defer interest payments on a series of the subordinated notes but the related deferral period has not yet commenced or a deferral period is continuing, the Company and its subsidiaries will generally be restricted from making payments on or redeeming or purchasing any shares of capital stock or debt securities or guarantees that rank, upon liquidation, on a parity with or junior to the subordinated notes, subject to certain limited exceptions set forth in the Indentures.

The foregoing summary of the subordinated notes does not purport to be complete and is qualified in its entirety by reference to the full text of (i) the Base Indenture attached as Exhibit 4.3 hereto; (ii) the First Supplemental Indenture attached as Exhibit 4.4 hereto; (iii) the Second Supplemental Indenture attached as Exhibit 4.5 hereto; and (iv) the forms of the subordinated notes attached as Exhibits 4.6 and 4.7 hereto, the terms of which are in each case incorporated by reference into this Item 8.01 and Item 2.03.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits

 

Exhibit

Number

  

Description

4.1    Sixth Supplemental Junior Subordinated Indenture, dated August 11, 2021, to Junior Subordinated Indenture, dated May 1, 1996.
4.2    Seventh Supplemental Junior Subordinated Indenture, dated August 11, 2021, to Junior Subordinated Indenture, dated May 1, 1996.
4.3    Subordinated Indenture, dated August 11, 2021, between Lincoln National Corporation and The Bank of New York Mellon, as trustee.
4.4    First Supplemental Subordinated Indenture, dated August 11, 2021, to Subordinated Indenture.
4.5    Second Supplemental Subordinated Indenture, dated August 11, 2021, to Subordinated Indenture.
4.6    Form of Floating Rate Subordinated Note due 2066.
4.7    Form of Floating Rate Subordinated Note due 2067.
99.1    Press Release, dated August 10, 2021.
104    Cover Page Interactive Data File (embedded within the Inline XBRL document).


SIGNATURES

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

 

LINCOLN NATIONAL CORPORATION
By  

/s/ Randal J. Freitag

Name:   Randal J. Freitag
Title:   Executive Vice President and Chief Financial Officer

Date: August 12, 2021

Exhibit 4.1

 

 

SIXTH SUPPLEMENTAL JUNIOR SUBORDINATED INDENTURE

DATED AS OF AUGUST 11, 2021

BETWEEN

LINCOLN NATIONAL CORPORATION

AS ISSUER

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

(AS SUCCESSOR IN INTEREST TO

J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,

BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION AND

THE FIRST NATIONAL BANK OF CHICAGO)

AS TRUSTEE

 

 


SIXTH SUPPLEMENTAL JUNIOR SUBORDINATED INDENTURE, dated as of August 11, 2021 (the “Sixth Supplemental Subordinated Indenture”), between Lincoln National Corporation, a corporation duly organized and existing under the laws of the State of Indiana (the “Company”), as issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to J.P. Morgan Trust Company, National Association, Bank One Trust Company, National Association and The First National Bank of Chicago), as trustee (the “Trustee”), supplementing the Junior Subordinated Indenture, dated as of May 1, 1996 (the “Base Indenture”) and the Third Supplemental Junior Subordinated Indenture, dated as of May 17, 2006, between the Company, as issuer, and the Trustee (the “Third Supplemental Subordinated Indenture”) pursuant to which the Company issued the 7.00% Capital Securities due 2066 (the “Capital Securities”), which were in the form of junior subordinated debentures.

WHEREAS, the Company executed and delivered the Base Indenture to provide for the future issuance of the Company’s junior subordinated debentures, notes or other evidence of indebtedness to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture;

WHEREAS, the Company executed and delivered the Third Supplemental Subordinated Indenture (together with Base Indenture, the “Indenture”) to provide for the establishment of the Capital Securities in the form of junior subordinated debentures, the form and substance of such Capital Securities and the terms, provisions and conditions thereof set forth as provided in the Indenture;

WHEREAS, pursuant to a Prospectus, dated August 5, 2021 (the “Offer to Exchange”), the Company has offered to exchange (the “Exchange Offer”), upon the terms and conditions set forth in the Prospectus, any and all of the Capital Securities for Floating Rate Subordinated Notes due 2066 issued by the Company with the terms, provisions and conditions thereof set forth in the Prospectus;

WHEREAS, in connection with the Exchange Offer, the Company solicited consents (the “Consents”, and such solicitation, the “Consent Solicitation”) of holders of Capital Securities to the amendments to the Indenture and the terms of the Capital Securities contained in this Sixth Supplemental Junior Subordinated Indenture (the “Amendments”);

WHEREAS, as of the date hereof, the holders of not less than a majority in principal amount of the Outstanding (as defined in the Indenture) Capital Securities have consented to the Amendments and validly tendered their Capital Securities in the Exchange Offer; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Sixth Supplemental Junior Subordinated Indenture, and all actions required or necessary pursuant to the Section 9.2 of the Indenture to make this Sixth Supplemental Junior Subordinated Indenture a valid instrument in accordance with its terms, have been taken and performed, and the execution and delivery of this Sixth Supplemental Subordinated Indenture has been duly authorized by the Company.

NOW, THEREFORE, it is hereby agreed between and among the Company and the Trustee as follows:


SECTION 1. This Sixth Supplemental Junior Subordinated Indenture shall become effective as of the date hereof.

SECTION 2. Solely as it relates to the Capital Securities, the Indenture is hereby amended as follows:

2.1 Section 4.3 (“Trigger Events”), Section 6.3 (“Obligation to Effect Certain Sales of Qualifying Securities; Alternative Coupon Satisfaction Mechanism”) and Article XI (“Limitation on Claims”) set forth in the Third Supplemental Indenture are hereby deleted in their entirety and replaced with “[Reserved]”, in each case, in lieu thereof.

2.2 The heading of Article IV is hereby amended and restated in its entirety as follows:

“ARTICLE IV

OPTIONAL DEFERRAL OF INTEREST”

2.3 Section 4.1 (“Optional Deferral of Interest”) set forth in the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:

“Section 4.1 Optional Deferral of Interest.

So long as no Event of Default has occurred and is continuing under the Indenture, the Company may elect at any time during the term of the Capital Securities, and from time to time, to defer one or more payments of interest on such Capital Securities (an “Optional Deferral” and any such deferred interest, “Optionally Deferred Interest”) for up to five years. During any Optional Deferral (an “Optional Deferral Period”), the Company may pay Optionally Deferred Interest out of any source of funds. Optionally Deferred Interest will continue to accrue and compound quarterly on each Interest Payment Date, to the extent permitted by applicable law, at the applicable Coupon Rate. Additionally, during any Optional Deferral Period, the restrictions on payment by the Company of dividends and other distributions on capital stock pursuant to Section 6.2 hereof will apply. There is no limit on the number of Optional Deferral Periods that the Company may begin.”

2.4 Section 4.2 (“Notices of Deferral and Trigger Period”) set forth in the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:

“Section 4.2 Notices of Deferral.

The Company shall provide a notice of any Optional Deferral no more than sixty and no fewer than fifteen days prior to the relevant Interest Payment Date. A notice of Optional Deferral, once given, will be irrevocable and the deferral of payments on the related Interest Payment Date will be considered an Optional Deferral.”

2.5 Clauses (a) and (b) of Section 5.1 (“Events of Default”) set forth in the Third Supplemental Indenture are hereby amended and restated in their entirety as follow:

 

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“(a) Section 5.1 of the Base Indenture is hereby amended and supplemented with respect to the Capital Securities by deleting clauses (1) and (3) thereof and adding the following additional Events of Default:

(i) default for thirty calendar days in the payment of any interest on the Capital Securities when it becomes due and payable (whether or not such payment is prohibited by the subordination provisions); however, a default under this provision will not arise if the Company has properly deferred the interest in connection with an Optional Deferral Period.

(ii) any non-payment of interest, whether due to an Optional Deferral or otherwise, that continues for ten consecutive years or extends beyond the Maturity Date of, or the redemption date for, the Capital Securities, without all accrued and unpaid interest (including Compounded Interest) having been paid in full.

(b) For the avoidance of doubt, Events of Default with respect to the Capital Securities do not include failure to comply with or breach of the Company’s other covenants set forth in Article VI hereof with respect to the Capital Securities (an “Other Covenant Default”).”

2.6 The heading and introductory clause in Section 6.2 (“Certain Restrictions During Optional Deferral Periods or Following a Trigger Event”) immediately prior to clause (a) of Section 6.2 set forth in the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:

“Section 6.2 Certain Restrictions During Optional Deferral Period.

“On any date on which accrued interest through the most recent Interest Payment Date has not been paid in full, whether because of an Optional Deferral or otherwise, the Company will not, and will not permit any subsidiary to:”

2.7 The following definitions set forth in Section 1.1 of the Third Supplemental Indenture are hereby deleted in their entirety and replaced with “[Reserved]”, in each case, in lieu thereof: “Adjusted Shareholders’ Equity Amount”, “Alternative Coupon Satisfaction Mechanism”, “Authorized Control Level RBC”, “Benchmark Quarter”, “Commercially Reasonable Efforts”, “Company Action Level RBC”, “Covered Life Insurance Subsidiaries”, “Covered Life Insurance Subsidiaries’ Most Recent Weighted Average NAIC RBC Ratio”, “Fifth Deferral Anniversary”, “Foregone Interest”, “General Account Admitted Assets”, “Life Insurance Subsidiary”, “Market Disruption Event”, “Model Act”, “NAIC”, “Qualifying Securities”, “Risk-Based Capital Ratio”, “Trailing Four Quarters Consolidated Net Income Amount”, “Total Adjusted Capital”, “Trigger Determination Date”, “Trigger Event” and “Trigger Period.” Any and all other terms defined in the Sixth Supplemental Junior Subordinated Indenture or Capital Securities which are (i) used in any Sections of the Indenture or Capital Securities deleted by any Section of this Sixth Supplemental Junior Subordinated Indenture and (ii) not otherwise used in any other Section of the Indenture or Capital Securities not affected by this Sixth Supplemental Junior Subordinated Indenture, are hereby deleted.

2.8 Any and all references to any Sections of the Indenture or Capital Securities which are deleted by any Section of this Sixth Supplemental Junior Subordinated Indenture, and any and all obligations related solely to such deleted Sections throughout the Sixth Supplemental Junior Subordinated Indenture or Capital Securities, are of no further force or effect. By consenting to the Proposed Amendments, each Holder of the Notes will be deemed to have waived any Event of Default, Other Covenant Default or other default or consequence under the Indenture for failure to comply with the terms of the provisions identified in this Section 2 (whether before or after the date hereof).

 

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SECTION 3. The Reverse of the Capital Securities are hereby amended as follows:

3.1 The tenth and eleventh paragraphs are hereby amended and restated in their entirety as follows:

“So long as no Event of Default has occurred and is continuing under the Indenture, the Company may elect at any time during the term of the Capital Securities, and from time to time, to defer one or more payments of interest on such Capital Securities (an “Optional Deferral” and any such deferred interest, “Optionally Deferred Interest”) for up to five years. During any period of Optional Deferral (an “Optional Deferral Period”), the Company may pay Optionally Deferred Interest out of any source of funds. Optionally Deferred Interest will continue to accrue and compound quarterly on each Interest Payment Date, to the extent permitted by applicable law, at the applicable Coupon Rate. Additionally, during any Optional Deferral Period, the restrictions on payment by the Company of dividends and other distributions on capital stock pursuant to Section 6.2 of the Third Supplemental Junior Subordinated Indenture will apply. There is no limit on the number of Optional Deferral Periods that the Company may begin.

The Company shall provide a notice of any Optional Deferral no more than sixty and no fewer than fifteen days prior to the relevant Interest Payment Date. A notice of Optional Deferral, once given, will be irrevocable and the deferral of payments on the related Interest Payment Date will be considered an Optional Deferral.”

3.2 The twelfth, thirteenth, fourteenth, fifteenth and seventeenth paragraphs are hereby deleted in their entirety.

3.3 The eighteenth paragraph is hereby amended and restated in its entirety as follows:

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

SECTION 4. Solely as it relates to the Capital Securities, the last paragraph of Section 3.3 of the Base Indenture is hereby amended by deleting the paragraph in its entirety and substituting the following therefor:

“No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual, facsimile or electronic signature of one of its authorized officers, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.”

SECTION 5. In the event of a conflict or inconsistency between the Indenture and this Sixth Supplemental Junior Subordinated Indenture, the provisions of this Sixth Supplemental Junior Subordinated Indenture shall control. Except as amended and

 

4


supplemented hereby, the Indenture is hereby ratified, confirmed and reaffirmed in all respects. The Indenture and this Sixth Supplemental Junior Subordinated Indenture shall be read, taken and construed as one and the same instrument with respect to the Capital Securities. In case any provision in this Sixth Supplemental Junior Subordinated Indenture 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 6. The recitals contained herein shall be taken as the statements of the Company, and the Trustee shall not assume any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Sixth Supplemental Junior Subordinated Indenture. Each of the Company and the Trustee hereby waives any right to trial by jury in any litigation arising from the Indenture. Each of the Company and the Trustee agrees that the federal or state courts in the city, county and state of New York shall have non-exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any disputes which may arise out of or in connection with the Indenture and that, accordingly, any legal action or proceedings arising out of or in connection with the Indenture and for such purposes, each of the Company and the Trustee irrevocably submits to the non-exclusive jurisdiction of those courts.

SECTION 7. This Sixth Supplemental Junior Subordinated Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be constructed in accordance with the laws of said State applicable to contracts made and to be performed entirely within said State.

SECTION 8. The parties may sign multiple counterparts of this Sixth Supplemental Junior Subordinated Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement. Execution and delivery of the signature page to this Sixth Supplemental Junior Subordinated Indenture may be effected via electronic transmission and shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper- based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

SECTION 9. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such

 

5


Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

[signature page follows]

 

6


IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Junior Subordinated Indenture to be duly executed by their respective officers thereunto duly authorized, on the date or dates indicated in the acknowledgments and as of the day and year first above written.

 

LINCOLN NATIONAL CORPORATION
By:  

/s/ Randal J. Freitag

Name:   Randal J. Freitag
Title:  

Executive Vice President and Chief Financial Officer

 

By:  

/s/ Christopher A. Giovanni

Name:   Christopher A. Giovanni
Title:   Senior Vice President and Treasurer

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:  

/s/ Latoya S Elvin

Name:   Latoya S Elvin
Title:   Vice President

Exhibit 4.2

 

 

SEVENTH SUPPLEMENTAL JUNIOR SUBORDINATED INDENTURE

DATED AS OF AUGUST 11, 2021

BETWEEN

LINCOLN NATIONAL CORPORATION

AS ISSUER

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

(AS SUCCESSOR IN INTEREST TO

J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,

BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION AND

THE FIRST NATIONAL BANK OF CHICAGO)

AS TRUSTEE

 

 


SEVENTH SUPPLEMENTAL JUNIOR SUBORDINATED INDENTURE, dated as of August 11, 2021 (the “Seventh Supplemental Subordinated Indenture”), between Lincoln National Corporation, a corporation duly organized and existing under the laws of the State of Indiana (the “Company”), as issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to J.P. Morgan Trust Company, National Association, Bank One Trust Company, National Association and The First National Bank of Chicago), as trustee (the “Trustee”), supplementing the Junior Subordinated Indenture, dated as of May 1, 1996 (the “Base Indenture”) and the Fourth Supplemental Junior Subordinated Indenture, dated as of November 1, 2006, between the Company, as issuer, and the Trustee (the “Fourth Supplemental Subordinated Indenture”) and the Fifth Supplemental Junior Subordinated Indenture, dated as of March 13, 2007, between the Company, as issuer, and the Trustee (the “Fifth Supplemental Subordinated Indenture”) pursuant to which the Company issued the 6.05% Capital Securities due 2067 (the “Capital Securities”), which were in the form of junior subordinated debentures.

WHEREAS, the Company executed and delivered the Base Indenture and the Fourth Supplemental Subordinated Indenture to the Trustee to provide for the future issuance of the Company’s junior subordinated debentures, notes or other evidence of indebtedness to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture;

WHEREAS, the Company executed and delivered the Fifth Supplemental Subordinated Indenture (together with Base Indenture and the Fourth Supplemental Subordinated Indenture, the “Indenture”) to provide for the establishment of the Capital Securities in the form of junior subordinated debentures, the form and substance of such Capital Securities and the terms, provisions and conditions thereof set forth as provided in the Indenture;

WHEREAS, pursuant to a Prospectus, dated August 5, 2021 (the “Offer to Exchange”), the Company has offered to exchange (the “Exchange Offer”), upon the terms and conditions set forth in the Prospectus, any and all of the Capital Securities for Floating Rate Subordinated Notes due 2067 issued by the Company with the terms, provisions and conditions thereof set forth in the Prospectus;

WHEREAS, in connection with the Exchange Offer, the Company solicited consents (the “Consents”, and such solicitation, the “Consent Solicitation”) of holders of Capital Securities to the amendments to the Indenture and the terms of the Capital Securities contained in this Seventh Supplemental Junior Subordinated Indenture (the “Amendments”);

WHEREAS, as of the date hereof, the holders of not less than a majority in principal amount of the Outstanding (as defined in the Indenture) Capital Securities have consented to the Amendments and validly tendered their Capital Securities in the Exchange Offer; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Seventh Supplemental Junior Subordinated Indenture, and all actions required or necessary pursuant to the Section 9.2 of the Indenture to make this Seventh Supplemental Junior Subordinated Indenture a valid instrument in accordance with its terms, have been taken and performed, and the execution and delivery of this Seventh Supplemental Subordinated Indenture has been duly authorized by the Company.


NOW, THEREFORE, it is hereby agreed between and among the Company and the Trustee as follows:

SECTION 1.    This Seventh Supplemental Junior Subordinated Indenture shall become effective as of the date hereof.

SECTION 2.    Solely as it relates to the Capital Securities, the Indenture is hereby amended as follows:

2.1    Section 4.3 (“Trigger Events”), Section 6.3 (“Obligation to Effect Certain Sales of Qualifying Securities; Alternative Coupon Satisfaction Mechanism”) and Article XI (“Limitation on Claims”) set forth in the Fifth Supplemental Indenture are hereby deleted in their entirety and replaced with “[Reserved]”, in each case, in lieu thereof.

2.2    The heading of Article IV is hereby amended and restated in its entirety as follows:

“ARTICLE IV

OPTIONAL DEFERRAL OF INTEREST”

2.3    Section 4.1 (“Optional Deferral of Interest”) set forth in the Fifth Supplemental Indenture is hereby amended and restated in its entirety as follows:

“Section 4.1    Optional Deferral of Interest.

So long as no Event of Default has occurred and is continuing under the Indenture, the Company may elect at any time during the term of the Capital Securities, and from time to time, to defer one or more payments of interest on such Capital Securities (an “Optional Deferral” and any such deferred interest, “Optionally Deferred Interest”) for up to five years. During any Optional Deferral (an “Optional Deferral Period”), the Company may pay Optionally Deferred Interest out of any source of funds. Optionally Deferred Interest will continue to accrue and compound quarterly on each Interest Payment Date, to the extent permitted by applicable law, at the applicable Coupon Rate.    Additionally, during any Optional Deferral Period, the restrictions on payment by the Company of dividends and other distributions on capital stock pursuant to Section 6.2 hereof will apply. There is no limit on the number of Optional Deferral Periods that the Company may begin.”

2.4    Section 4.2 (“Notices of Deferral and Trigger Period”) set forth in the Fifth Supplemental Indenture is hereby amended and restated in its entirety as follows:

“Section 4.2     Notices of Deferral.

The Company shall provide a notice of any Optional Deferral no more than sixty and no fewer than fifteen days prior to the relevant Interest Payment Date. A notice of Optional Deferral, once given, will be irrevocable and the deferral of payments on the related Interest Payment Date will be considered an Optional Deferral.”

 

2


2.5    Clauses (a) and (b) of Section 5.1 (“Events of Default”) set forth in the Fifth Supplemental Indenture are hereby amended and restated in their entirety as follow:

“(a)    Section 5.1 of the Base Indenture is hereby amended and supplemented with respect to the Capital Securities by deleting clauses (1) and (3) thereof and adding the following additional Event of Default: any non-payment of interest, whether due to an Optional Deferral or otherwise, that continues for ten consecutive years, without all accrued and unpaid interest (including Compounded Interest) having been paid in full.

(b)    For the avoidance of doubt, Events of Default with respect to the Capital Securities do not include failure to comply with or breach of the Company’s other covenants set forth in Article VI hereof with respect to the Capital Securities (an “Other Covenant Default”).”

2.6     The heading and introductory clause in Section 6.2 (“Certain Restrictions During Optional Deferral Periods or Following a Trigger Event”) immediately prior to clause (a) of Section 6.2 set forth in the Fifth Supplemental Indenture is hereby amended and restated in its entirety as follows:

“Section 6.2     Certain Restrictions During Optional Deferral Period.

“On any date on which accrued interest through the most recent Interest Payment Date has not been paid in full, whether because of an Optional Deferral or otherwise, the Company will not, and will not permit any subsidiary to:”

2.7    The following definitions set forth in Section 1.1 of the Fifth Supplemental Indenture are hereby deleted in their entirety and replaced with “[Reserved]”, in each case, in lieu thereof: “Adjusted Shareholders’ Equity Amount”, “Alternative Coupon Satisfaction Mechanism”, “Authorized Control Level RBC”, “Benchmark Quarter”, “Commercially Reasonable Efforts”, “Company Action Level RBC”, “Covered Life Insurance Subsidiaries”, “Covered Life Insurance Subsidiaries’ Most Recent Weighted Average NAIC RBC Ratio”, “Current Stock Market Price”, “Fifth Deferral Anniversary”, “Foregone Interest”, “General Account Admitted Assets”, “Life Insurance Subsidiary”, “Market Disruption Event”, “Model Act”, “NAIC”, “Qualifying Securities”, “Qualifying Warrants”, “Risk-Based Capital Ratio”, “Share Cap Amount”, “Trailing Four Quarters Consolidated Net Income Amount”, “Total Adjusted Capital”, “Trigger Determination Date”, “Trigger Event” and “Trigger Period.” Any and all other terms defined in the Seventh Supplemental Junior Subordinated Indenture or Capital Securities which are (i) used in any Sections of the Indenture or Capital Securities deleted by any Section of this Seventh Supplemental Junior Subordinated Indenture and (ii) not otherwise used in any other Section of the Indenture or Capital Securities not affected by this Seventh Supplemental Junior Subordinated Indenture, are hereby deleted.

2.8    Any and all references to any Sections of the Indenture or Capital Securities which are deleted by any Section of this Seventh Supplemental Junior Subordinated Indenture, and any and all obligations related solely to such deleted Sections throughout the Seventh Supplemental Junior Subordinated Indenture or Capital Securities, are of no further force or effect. By consenting to the Proposed Amendments, each Holder of the Notes will be deemed to have waived any Event of Default, Other Covenant Default or other default or consequence under the Indenture for failure to comply with the terms of the provisions identified in this Section 2 (whether before or after the date hereof).

 

3


SECTION 3.    The Reverse of the Capital Securities are hereby amended as follows:

3.1    The tenth and eleventh paragraphs are hereby amended and restated in their entirety as follows:

“So long as no Event of Default has occurred and is continuing under the Indenture, the Company may elect at any time during the term of the Capital Securities, and from time to time, to defer one or more payments of interest on such Capital Securities (an “Optional Deferral” and any such deferred interest, “Optionally Deferred Interest”) for up to five years. During any period of Optional Deferral (an “Optional Deferral Period”), the Company may pay Optionally Deferred Interest out of any source of funds. Optionally Deferred Interest will continue to accrue and compound quarterly on each Interest Payment Date, to the extent permitted by applicable law, at the applicable Coupon Rate. Additionally, during any Optional Deferral Period, the restrictions on payment by the Company of dividends and other distributions on capital stock pursuant to Section 6.2 of the Fifth Supplemental Junior Subordinated Indenture will apply. There is no limit on the number of Optional Deferral Periods that the Company may begin.

The Company shall provide a notice of any Optional Deferral no more than sixty and no fewer than fifteen days prior to the relevant Interest Payment Date. A notice of Optional Deferral, once given, will be irrevocable and the deferral of payments on the related Interest Payment Date will be considered an Optional Deferral.”

3.2     The twelfth, thirteenth, fourteenth, fifteenth and seventeenth paragraphs are hereby deleted in their entirety.

3.3    The eighteenth paragraph is hereby amended and restated in its entirety as follows:

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

SECTION 4.     Solely as it relates to the Capital Securities, the last paragraph of Section 3.3 of the Base Indenture is hereby amended by deleting the paragraph in its entirety and substituting the following therefor:

“No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual, facsimile or electronic signature of one of its authorized officers, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.”

 

4


SECTION 5.    In the event of a conflict or inconsistency between the Indenture and this Seventh Supplemental Junior Subordinated Indenture, the provisions of this Seventh Supplemental Junior Subordinated Indenture shall control. Except as amended and supplemented hereby, the Indenture is hereby ratified, confirmed and reaffirmed in all respects. The Indenture and this Seventh Supplemental Junior Subordinated Indenture shall be read, taken and construed as one and the same instrument with respect to the Capital Securities. In case any provision in this Seventh Supplemental Junior Subordinated Indenture 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 6.    The recitals contained herein shall be taken as the statements of the Company, and the Trustee shall not assume any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Seventh Supplemental Junior Subordinated Indenture. Each of the Company and the Trustee hereby waives any right to trial by jury in any litigation arising from the Indenture. Each of the Company and the Trustee agrees that the federal or state courts in the city, county and state of New York shall have non-exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any disputes which may arise out of or in connection with the Indenture and that, accordingly, any legal action or proceedings arising out of or in connection with the Indenture and for such purposes, each of the Company and the Trustee irrevocably submits to the non-exclusive jurisdiction of those courts.

SECTION 7.    This Seventh Supplemental Junior Subordinated Indenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be constructed in accordance with the laws of said State applicable to contracts made and to be performed entirely within said State.

SECTION 8.    The parties may sign multiple counterparts of this Seventh Supplemental Junior Subordinated Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement. Execution and delivery of the signature page to this Seventh Supplemental Junior Subordinated Indenture may be effected via electronic transmission and shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper- based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

SECTION 9. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency

 

5


certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

[signature page follows]

 

6


IN WITNESS WHEREOF, the parties hereto have caused this Seventh Supplemental Junior Subordinated Indenture to be duly executed by their respective officers thereunto duly authorized, on the date or dates indicated in the acknowledgments and as of the day and year first above written.

 

LINCOLN NATIONAL CORPORATION
By:  

/s/ Randal J. Freitag

Name:   Randal J. Freitag
Title:   Executive Vice President and Chief Financial Officer

 

By:  

/s/ Christopher A. Giovanni

Name:   Christopher A. Giovanni
Title:   Senior Vice President and Treasurer

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:  

/s/ Latoya S Elvin

Name:   Latoya S Elvin
Title:   Vice President

Exhibit 4.3

LINCOLN NATIONAL CORPORATION

and

THE BANK OF NEW YORK MELLON,

as Trustee

SUBORDINATED INDENTURE

Dated as of August 11, 2021

Providing for the Issuance of

Subordinated Debt Securities in Series


LINCOLN NATIONAL CORPORATION

RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939

and Indenture Provisions1

 

Trust Indenture Act Section

   Indenture Section  

Section 310

  (a)(1)      6.09  
  (a)(2)      6.09  
  (a)(3)      Not Applicable  
  (a)(4)      Not Applicable  
  (a)(5)      6.09  
  (b)      6.08, 6.10  

Section 311

  (a)      6.13  
  (b)      6.13  

Section 312

  (a)      7.01, 7.02  
  (b)      7.02  
  (c)      7.02  

Section 313

  (a)      7.03  
  (b)      7.03  
  (c)      7.03  
  (d)      7.03  

Section 314

  (a)      7.04  
  (a)(4)      10.04  
  (b)      Not Applicable  
  (c)(1)      1.02  
  (c)(2)      1.02  
  (c)(3)      Not Applicable  
  (d)      Not Applicable  
  (e)      1.02  

Section 315

  (a)      6.01  
  (b)      6.02  
  (c)      6.01  
  (d)      6.01  
  (e)      5.14  

Section 316

  (a)      1.01  
  (a)(1)(A)      5.02, 5.12  
  (a)(1)(B)      5.13  
  (a)(2)      Not Applicable  
  (b)      5.08  
  (c)      1.04  

Section 317

  (a)(1)      5.03  
  (a)(2)      5.04  
  (b)      10.03  

Section 318

  (a)      1.07  

 

1 

This reconciliation and tie shall not for any purpose, be deemed to be a part of the Indenture.

 

i


TABLE OF CONTENTS

 

         Page  
ARTICLE I  
Definitions and Other Provisions of General Application  

Section 1.01

  Definitions      1  

Section 1.02

  Compliance Certificates and Opinions      7  

Section 1.03

  Form of Documents Delivered to Trustee      7  

Section 1.04

  Acts of Holders; Record Dates      8  

Section 1.05

  Notices, Etc., to Trustee and Company      9  

Section 1.06

  Notice to Holders; Waiver      9  

Section 1.07

  Conflict with Trust Indenture Act      10  

Section 1.08

  Effect of Headings and Table of Contents      10  

Section 1.09

  Successors and Assigns      10  

Section 1.10

  Separability Clause      10  

Section 1.11

  Benefits of Indenture      10  

Section 1.12

  Governing Law; Submission to Jurisdiction and Waiver of Jury Trial      10  

Section 1.13

  Legal Holidays      11  

Section 1.14

  Computations      11  

Section 1.15

  Counterparts; Facsimile      11  

Section 1.16

  Patriot Act      11  

Section 1.17

  Waiver of Immunity      12  
ARTICLE II  
Security Forms  

Section 2.01

  Forms Generally      12  

Section 2.02

  Form of Legend for Global Securities      12  

Section 2.03

  Form of Trustee’s Certificate of Authentication      13  
ARTICLE III  
The Securities  

Section 3.01

  Creation of Securities in Amount Unlimited      13  

Section 3.02

  Documents Required for Issuance of Each Series of Securities      13  

Section 3.03

  Denominations      15  

Section 3.04

  Execution, Delivery, Dating and Authentication      15  

Section 3.05

  Temporary Securities      17  

Section 3.06

  Registration, Registration of Transfer and Exchange      17  

Section 3.07

  Mutilated, Destroyed, Lost and Stolen Securities      18  

Section 3.08

  Payment of Interest; Interest Rights Preserved      19  

Section 3.09

  Persons Deemed Owners      20  

Section 3.10

  Cancellation      20  

Section 3.11

  Computation of Interest      20  

Section 3.12

  Depositary      20  

Section 3.13

  CUSIP Numbers      21  
ARTICLE IV  
Satisfaction and Discharge  

Section 4.01

  Satisfaction and Discharge of Indenture in Respect of any Series of Securities      21  

Section 4.02

  Application of Trust Money      22  

 

ii


ARTICLE V  
Remedies  

Section 5.01

  Events of Default      22  

Section 5.02

  Acceleration of Maturity; Rescission and Annulment      23  

Section 5.03

  Collection of Indebtedness and Suits for Enforcement by Trustee      23  

Section 5.04

  Trustee May File Proofs of Claim      24  

Section 5.05

  Trustee May Enforce Claims Without Possession of Securities      24  

Section 5.06

  Application of Money Collected      24  

Section 5.07

  Limitation on Suits      25  

Section 5.08

  Unconditional Right of Holders to Receive Principal, Premium and Interest      25  

Section 5.09

  Restoration of Rights and Remedies      25  

Section 5.10

  Rights and Remedies Cumulative      26  

Section 5.11

  Delay or Omission Not Waiver      26  

Section 5.12

  Control by Holders      26  

Section 5.13

  Waiver of Past Defaults      26  

Section 5.14

  Undertaking for Costs      26  

Section 5.15

  Waiver of Stay or Extension Laws      27  
ARTICLE VI  
The Trustee  

Section 6.01

  Certain Duties and Responsibilities      27  

Section 6.02

  Notice of Defaults      27  

Section 6.03

  Certain Rights of Trustee      27  

Section 6.04

  Not Responsible for Recitals or Issuance of Securities      28  

Section 6.05

  May Hold Securities      28  

Section 6.06

  Money Held in Trust      29  

Section 6.07

  Compensation and Reimbursement      29  

Section 6.08

  Disqualification; Conflicting Interests      29  

Section 6.09

  Corporate Trustee Required; Eligibility      30  

Section 6.10

  Resignation and Removal; Appointment of Successor      30  

Section 6.11

  Acceptance of Appointment by Successor      31  

Section 6.12

  Merger, Conversion, Consolidation or Succession to Business      32  

Section 6.13

  Preferential Collection of Claims Against Company      32  

Section 6.14

  Appointment of Authenticating Agent      32  

Section 6.15

  Indemnities      33  

Section 6.16

  Electronic Communication      33  
ARTICLE VII  
Holders’ Lists and Reports by Trustee and Company  

Section 7.01

  Company to Furnish Trustee Names and Addresses of Holders      34  

Section 7.02

  Preservation of Information; Communications to Holders      34  

Section 7.03

  Reports by Trustee      35  

Section 7.04

  Reports by Company      35  
ARTICLE VIII  
Consolidation, Merger, Conveyance or Transfer  

Section 8.01

  Company May Consolidate, Etc., Only on Certain Terms      36  

Section 8.02

  Successor Corporation Substituted      36  

 

iii


ARTICLE IX  
Supplemental Indentures  

Section 9.01

  Supplemental Indentures Without Consent of Holders      36  

Section 9.02

  Supplemental Indentures with Consent of Holders      37  

Section 9.03

  Execution of Supplemental Indentures      38  

Section 9.04

  Effect of Supplemental Indentures      38  

Section 9.05

  Conformity with Trust Indenture Act      38  

Section 9.06

  Reference in Securities to Supplemental Indentures      39  
ARTICLE X  
Covenants  

Section 10.01

  Payment of Principal, Premium and Interest      39  

Section 10.02

  Maintenance of Office or Agency      39  

Section 10.03

  Money for Securities Payments to be Held in Trust      39  

Section 10.04

  Statement by Officers as to Default      40  

Section 10.05

  Limitations on Issue or Disposition of Stock of Restricted Subsidiaries      41  

Section 10.06

  Waiver of Certain Covenants      41  
ARTICLE XI  
Redemption of Securities  

Section 11.01

  Applicability of Article      41  

Section 11.02

  Election to Redeem; Notice to Trustee      41  

Section 11.03

  Selection by Trustee of Securities to be Redeemed      41  

Section 11.04

  Notice of Redemption      42  

Section 11.05

  Deposit of Redemption Price      43  

Section 11.06

  Securities Payable on Redemption Date      43  

Section 11.07

  Securities Redeemed in Part      43  
ARTICLE XII  
Sinking Funds  

Section 12.01

  Applicability of Article      43  

Section 12.02

  Satisfaction of Sinking Fund Payments with Securities      43  

Section 12.03

  Redemption of Securities for Sinking Fund      44  
ARTICLE XIII  
Subordination of Securities  

Section 13.01

  Securities Subordinate to Senior Indebtedness      44  

Section 13.02

  Payment Over of Proceeds Upon Dissolution, Etc.      44  

Section 13.03

  No Payment When Senior Indebtedness in Default      45  

Section 13.04

  Payment Permitted if No Default      46  

Section 13.05

  Subrogation to Rights of Holders of Senior Indebtedness      46  

Section 13.06

  Provisions Solely to Define Relative Rights      46  

Section 13.07

  Trustee to Effectuate Subordination      46  

Section 13.08

  No Waiver of Subordination Provisions      46  

Section 13.09

  Notice to Trustee      47  

Section 13.10

  Reliance on Judicial Order or Certificate of Liquidating Agent      48  

Section 13.11

  Trustee Not Fiduciary For Holders of Senior Indebtedness      48  

Section 13.12

  Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights      48  

Section 13.13

  Article Applicable to Paying Agents      48  

 

iv


ARTICLE XIV  
Defeasance and Covenant Defeasance  

Section 14.01

  Company’s Option to Effect Defeasance or Covenant Defeasance      48  

Section 14.02

  Defeasance and Discharge      48  

Section 14.03

  Covenant Defeasance      49  

Section 14.04

  Conditions to Defeasance or Covenant Defeasance      49  

Section 14.05

  Deposited Money or U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions      50  

Section 14.06

  Reinstatement      50  

 

 

v


SUBORDINATED INDENTURE, dated as of August 11, 2021, between Lincoln National Corporation, an Indiana corporation (the “Company”), and The Bank of New York Mellon, a New York banking corporation, as trustee hereunder (the “Trustee”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series as provided in this Indenture.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of a series thereof, as follows:

ARTICLE I

Definitions and Other Provisions of General Application

Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

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

(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation; and

(d) the words “herein,” “hereinafter,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally within an Article of this Indenture, may be defined in that Article.

Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.

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

Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.

Board of Directors” means the board of directors of the Company, any duly authorized committee of that board or any officer of the Company delegated the power of either the board of directors of the Company or any duly authorized committee of that board.


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

Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, New York or, when used with respect to any Place of Payment, that Place of Payment are authorized or obligated by law or executive order to close.

Capital Stock” means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) corporate stock.

Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

Company Request” or “Company Order” means a written request or order signed in the name of the Company by one of its officers and delivered to the Trustee.

Corporate Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 Attention: Corporate Trust Administration, Email: Nathanael.Marburger@bnymellon.com, except that with respect to the presentation of Securities for payment or for registration of transfer and exchange, such term shall mean the office or the agency of the Trustee designated for such purpose.

Corporation” includes corporations, associations, companies (including limited liability companies) and business trusts.

Covenant Defeasance” has the meaning specified in Section 14.03.

Defaulted Interest” has the meaning specified in Section 3.08(b).

Defeasance” has the meaning specified in Section 14.02.

Depositary” means the clearing agency registered under the Exchange Act that is designated by the Company to act as depositary for any series of Securities (or any successor to such clearing agency).

Dollar” means the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Event of Default” has the meaning specified in Section 5.01.

Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

Expiration Date” has the meaning specified in Section 1.04.

Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.02 (or such legend as may be specified as contemplated by Section 3.02 for such Securities).

 

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Holder” or “holder” means a Person in whose name at the time a particular Security is registered in the Security Register.

Indebtedness” of any Person means the principal of (and premium, if any) and interest, if any, due on indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, whether recourse is to all or a portion of the assets of such Person and whether or not contingent, which is (a) indebtedness for money borrowed, and (b) any amendments, renewals, extensions, modifications and refundings of any such indebtedness. For the purposes of this definition, “indebtedness for money borrowed” means (i) any obligation of, or any obligation guaranteed by, such Person for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, (ii) any obligation of, or any such obligation guaranteed by, such Person evidenced by bonds, debentures, notes or similar written instruments, including obligations assumed or incurred in connection with the acquisition of property, assets or businesses (provided, however, that the deferred purchase price of any property, assets or business shall not be considered Indebtedness if the purchase price thereof is payable in full within 90 days from the date on which such indebtedness was created), and (iii) any obligations of such Person as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles and leases of property or assets made as part of any sale and lease-back transaction to which such Person is a party. Indebtedness does not include trade accounts payable or accrued liability arising in the ordinary course of business.

Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended 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 particular series of Securities established as contemplated by Section 3.02.

Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

Interest Rate” means the rate of interest specified or determined as specified in each Security as being the rate of interest payable on such Security.

Investment Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

Junior Subordinated Payment” has the meaning specified in Section 13.02.

Lien” means any mortgage, pledge, security interest or lien or other encumbrance of any nature whatsoever.

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

Officer’s Certificate” means a certificate signed by an officer of the Company, and delivered to the Trustee. Each such Officer’s Certificate shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Company and who shall be acceptable to the Trustee. Each Opinion of Counsel shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

Original Issue Date” means the date of issuance specified as such in each Security.

 

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Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.

Outstanding” or “outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

(i) Securities theretofore cancelled by the Trustee or delivered or deemed delivered to the Trustee for cancellation;

(ii) Securities for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

(iii) Securities as to which Defeasance has been effected pursuant to Section 14.02; and

(iv) Securities which have been paid pursuant to Section 3.07 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.02, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the Dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.02, of the principal amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount determined as provided in such clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Trust Officer actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

Paying Agent” means the Trustee or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities on behalf of the Company.

Payment Blockage Period” has the meaning specified in Section 13.03(b).

Person” or “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.

 

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Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable as specified in accordance with Section 3.02.

Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

Proceeding” has the meaning specified in Section 13.02.

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

Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed as calculated by the Company pursuant to this Indenture.

Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.02, which date shall be, unless otherwise specified pursuant to Section 3.02, the fifteenth day preceding such Interest Payment Date, whether or not such day shall be a Business Day.

Responsible Trust Officer,” when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture and any other officer to whom a particular matter is referred because of his knowledge of and familiarity with the particular subject.

Restricted Subsidiary” means The Lincoln National Life Insurance Company so long as it remains a Subsidiary, and any successor to all or a principal part of its assets and any other Subsidiary which the Board of Directors designates as a Restricted Subsidiary.

Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

Security Register” has the meaning specified in Section 3.06(a).

Security Registrar” means the Person appointed as the initial Security Registrar in Section 3.06(a) or any Person appointed by the Company as a successor or replacement Security Registrar.

Senior Indebtedness” means the principal of (and premium, if any) and interest on and any other payment due pursuant to any of the following, whether incurred on or prior to the date hereof or hereafter incurred:

(i) all obligations of the Company (other than obligations pursuant to the Indenture, including the Securities) for money borrowed;

(ii) all obligations of the Company evidenced by securities, notes, debentures, bonds or other similar instruments (other than securities issued under the Indenture, including the Securities), including obligations incurred in connection with the acquisition of property, assets or businesses;

 

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(iii) all capital lease obligations of the Company;

(iv) all reimbursement obligations of the Company with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of the Company;

(v) all obligations of the Company issued or assumed as the deferred purchase price of property or services, including all obligations under master lease transactions pursuant to which the Company or any of its subsidiaries have agreed to be treated as owner of the subject property for U.S. federal income tax purposes;

(vi) all payment obligations of the Company under interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements at the time of determination, including any such obligations incurred by the Company solely to act as a hedge against increases in interest rates that may occur under the terms of other outstanding variable or floating rate indebtedness of the Company; and

(vii) all obligations of the type referred to in clauses (i) through (vi) above of another Person and all dividends of another Person the payment of which, in either case, the Company has assumed or guaranteed or for which the Company is responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor or otherwise;

provided, however, that “Senior Indebtedness” shall not include: (1) obligations to trade creditors created or assumed by the Company in the ordinary course of business, (2) Indebtedness that is by its terms subordinate, or not superior, in right of payment to the Securities or (3) Indebtedness which is pari passu with, or ranks equally to, the Securities;.

Senior Nonmonetary Default” has the meaning specified in Section 13.04(b).

Senior Payment Default” has the meaning specified in Section 13.04(a).

Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.08(b).

Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

Subsidiary” means any entity of which at the time of determination the Company and/or one or more Subsidiaries owns or controls directly or indirectly more than 50% of the shares of Voting Stock.

Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include 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 shall mean the Trustee with respect to Securities of that series.

Trust Indenture Act” means the Trust Indenture Act of 1939 and any statute successor thereto, in each case as amended from time to time.

United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

U.S. Government Obligation” means, with respect to the Securities of any series, securities which are (i) direct obligations of the United States or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed by the United States and which, in either case, are full faith and credit obligations of the United States and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank (as defined

 

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in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.

Vice President,” when used with respect to the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

Voting Stock” means stock of a Corporation of the class or classes having general voting power under ordinary circumstances in the election of directors, managers or trustees of such Corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

Section 1.02 Compliance Certificates and Opinions. (a) Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate and opinion shall be given in the form of an Officer’s Certificate, if to be given by an officer of the Company, and an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. In the case of an application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

(b) Unless expressly otherwise specified with respect to any certificate or opinion provided for in this Indenture, every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than annual certificates provided pursuant to Section 10.04) shall include:

(i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(ii) 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;

(iii) a statement that, in the opinion of each 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

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

Section 1.03 Form of Documents Delivered to Trustee. (a) 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 with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

(b) Any certificate or opinion of an officer of the Company 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, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

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(c) 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 1.04 Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities of any series may be embodied in and evidenced by (i) one or more instruments of substantially similar tenor signed by such Holders in person or by proxies duly appointed in writing, (ii) the record of such Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called, or (iii) a combination of any such record and one or more instruments of substantially similar tenor signed by such Holders in person or by proxies duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such record and/or instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such record or instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such proxy shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

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

(c) The ownership of Securities shall be proved by the Security Register.

(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

(e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date and no other Holders shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.

 

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(f) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to join in the giving or making of (i) any declaration of acceleration, or any rescission or annulment of any such declaration, referred to in Section 5.02 and (ii) any request to institute proceedings referred to in Section 5.07(ii) or (iv) any direction referred to in Section 5.12. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.

(g) With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

(h) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

Section 1.05 Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

(a) the Trustee by any Holder or by the Company shall be made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office and unless otherwise herein expressly provided, any such document shall be deemed to be sufficiently made, given, furnished or filed upon its receipt by a Responsible Trust Officer, or

(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and delivered in person, mailed, first-class postage prepaid, or sent by overnight mail to the Company addressed to it at 150 N. Radnor Chester Road (Suite A305), Radnor, PA 19087 Email: CompanySecretaries@lfg.com or at any other address previously furnished in writing to the Trustee by the Company, Attention: Corporate Legal Department.

(c) Neither the Company nor the Trustee shall be deemed to have received any such request, demand, authorization, direction, notice, consent, waiver or other Act of Holders unless given, furnished or filed as provided in this Section 1.05.

Section 1.06 Notice to Holders; Waiver. (a) Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or unless otherwise specified in such Securities) if in writing and delivered in person, mailed, first-class postage prepaid or sent by overnight mail, to each Holder affected by such event, at his address as it appears in the Security Register, within the time prescribed for the giving of such notice, and

 

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(b) In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders in the manner specified above, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

(c) In any case where notice to a Holder is given in any manner specified in paragraph (a) above, such notice shall be conclusively presumed to have been duly given, whether or not such Holder receives such notice. In any case where notice to Holders is given in any manner specified in paragraph (a) above, neither the failure to deliver, mail or send such notice, nor any defect in any notice so mailed or sent, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

(d) Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

(e) Notwithstanding any other provision of this Indenture or any Global Security, where this Indenture or any Global Security provides for notice of any event or any other communication (including any notice of redemption or repurchase) to a holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices at the Depositary.

Section 1.07 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

Section 1.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

Section 1.09 Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

Section 1.10 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12 Governing Law; Submission to Jurisdiction and 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, without giving effect to applicable principles of conflicts of laws to the extent the laws of another jurisdiction would be required thereby. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY. The Company agrees that any suit, action or proceeding against the Company brought by any holder of Securities or the Trustee arising out of or based upon this Indenture or the Securities may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and the Company irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action or proceeding that may be brought in connection with this Indenture or any Security, including such actions, suits or proceedings in relation to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Issuer is subject by a suit upon such judgment.

 

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Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Maturity, or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Maturity or Stated Maturity, as the case may be, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Maturity or Stated Maturity, as the case may be, to the next succeeding Business Day at such Place of Payment.

Section 1.14 Computations. Unless otherwise specifically provided, the certificate or opinion of any independent firm of public accountants of recognized standing selected by the Chief Financial Officer or Chief Accounting Officer of the Company shall be conclusive evidence of the correctness of any computation made under the provisions of this Indenture. The Company shall furnish to the Trustee upon its request a copy of any such certificate or opinion.

Section 1.15 Counterparts; Facsimile. This Indenture and the Global Securities may be executed in any number of counterparts and by the parties hereto in separate counterparts, and signature pages may be delivered by email facsimile, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Indenture or in any other certificate, agreement or document related to this Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper- based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

Section 1.16 Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States, the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, the Company agrees to provide to the Trustee such identifying information and documentation as it may request from time to time in order to enable it to comply therewith.

 

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Section 1.17 Waiver of Immunity. To the extent that the Company or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or from other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, instituted in any state or federal court in the Borough of Manhattan, the City of New York, New York, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture or the Securities brought by the Trustee or a Holder, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives and agrees not to plead or claim any such immunity and consents to such relief and enforcement.

ARTICLE II

Security Forms

Section 2.01 Forms Generally. The Securities of each series shall be in the form or forms established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate provisions as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officer executing such Securities, as evidenced by the officer’s execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.04 with respect to the authentication and delivery of such Securities.

The Trustee’s certificate of authentication shall be substantially in the form set forth in this Article.

The definitive Securities 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 the officer’s execution of such Securities.

The Securities of each series will initially be issued in the form of one or more Global Securities. Each such Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and each shall provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amounts of Outstanding Securities of such series represented thereby may from time to time be reduced or increased, as appropriate. The Global Security or Securities evidencing the Securities of a series (and all Securities issued in exchange therefore) shall bear the legend indicated in Section 2.02.

Section 2.02 Form of Legend for Global Securities.

Every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

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

 

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THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

Section 2.03 Form of Trustees Certificate of Authentication.

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

Certificate of Authentication

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

Dated:

 

The Bank of New York Mellon, as Trustee
By:  

 

  Authorized Signatory

ARTICLE III

The Securities

Section 3.01 Creation of Securities in Amount Unlimited. An unlimited aggregate principal amount of Securities may be issued pursuant to this Article III. The Securities may be authenticated and delivered, as authorized by the Board of Directors, in an unlimited number of series.

Section 3.02 Documents Required for Issuance of Each Series of Securities. At any time and from time to time, Securities of each series created pursuant to the provisions of this Article III may be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee upon the order of the Company upon receipt by the Trustee of the following:

(a) A Board Resolution or Board Resolutions authorizing the execution, authentication and delivery of the Securities of the series, or one or more indentures supplemental hereto, specifying:

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

(ii) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Article III (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the same series pursuant to Section 3.05, 3.06, 3.07, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.04, are deemed never to have been authenticated and delivered hereunder); provided, however, that the authorized aggregate principal amount of such series may be increased above such amount by a Board Resolution to such effect;

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

(iv) the rate or rates, or the method of determination thereof, at which any of the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date (if other than as defined in this Indenture) for the interest payable on any Securities on any Interest Payment Date;

 

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(v) the place or places where the principal of (and premium, if any) and interest, if any, on any of the Securities of the series shall be payable and the office or agency for the Securities of the series maintained by the Company pursuant to Section 10.02;

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

(vii) the terms of any sinking fund and the obligation or the right, if any, of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

(viii) the terms, if any, for the attachment to Securities of the series of warrants, options or other rights to purchase or sell stock or other securities of the Company;

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

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

(xi) any deletions or modifications of or additions to the Events of Default set forth in Section 5.01 or covenants of the Company set forth in Article VIII or X pertaining to the Securities of the series;

(xii) the form or forms of the Securities of the series;

(xiii) if other than Dollars, the currency or currencies, or currency unit or units, in which the Securities of such series will be denominated and/or in which payment of the principal of (and premium, if any) and interest, if any, on any of the Securities of the series shall be payable;

(xiv) if the principal of (and premium, if any) or interest, if any, on any of the Securities of the series are to be payable at the election of the Company or a Holder thereof, or under some or all other circumstances, in a currency or currencies, or currency unit or units, other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made, or the other circumstances under which any of the Securities are to be so payable, including, without limitation, any provision requiring the Holder to bear currency exchange costs by deduction from such payments;

(xv) if the amount of payments of principal of (and premium, if any) or interest, if any, on any of the Securities of the series may be determined with reference to an index or indices based on (A) a currency or currencies or currency unit or units other than that in which such Securities are stated to be payable or (B) any method, not inconsistent with the provisions of this Indenture, specified in or pursuant to such Board Resolution, then in each case (A) and (B) the manner in which such amounts shall be determined;

(xvi) the additions or changes, if any, to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons;

 

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(xvii) 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 definitive global form and, if so, whether beneficial owners of interests in any such definitive 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 and the place or places where any such exchanges may occur, if other than in the manner provided in Section 3.06;

(xviii) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;

(xix) whether and under what circumstances and with what procedures and documentation the Company will pay additional amounts on any of the Securities of the series to any Holder who is not a U.S. Person (including a definition of such term), in respect of any tax assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay additional amounts (and the terms of any such option);

(xx) the Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.05;

(xxi) the terms and conditions of any right or obligation on the part of the Company, or any option on the part of the Holders, to convert or exchange the Securities of such series into cash or any other securities or property of the Company or any other Person, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange;

(xxii) whether and under what circumstances any or all of the provisions of this Indenture relating to the subordination of the Securities (including the provisions of Article XIII), or different subordination provisions, including a different definition of “Senior Indebtedness” will apply or cease to apply to the Securities of the series; and

(xxiii) any other terms of any of the Securities of the series (which terms shall not be inconsistent with the provisions of this Indenture).

If any of the terms of the series are established by action taken pursuant to a Board Resolution or Board Resolutions, an Officer’s Certificate certifying as to such action also shall be delivered to the Trustee.

(b) In case the Securities of the series to be authenticated and delivered are to be created pursuant to one or more supplemental indentures, such supplemental indenture or indentures, accompanied by a Board Resolution or Board Resolutions authorizing such supplemental indenture or indentures and designating the new series to be created and prescribing pursuant to paragraph (a) above, consistent with the applicable provisions of this Indenture, the terms and provisions relating to the Securities of the series.

Section 3.03 Denominations. The Securities of each series issued in registered form shall be issuable in such denominations as shall be specified as contemplated by Section 3.02. 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 denominations of $l,000 and in any integral multiple thereof. Each Security shall bear the appropriate legends, if any, as required by U.S. Federal tax law and regulations.

Section 3.04 Execution, Delivery, Dating and Authentication. (a) The Securities shall be executed on behalf of the Company by a manual or facsimile signature of one of its officers or, if required by any securities exchange on which the Securities may be listed, by a manual or facsimile signature of two of its officers. In case an officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer; and any Securities may be signed on behalf of the Company by such person as, at the actual date of the execution of such Security, shall be such officer of the Company, although at the date of the execution of this Indenture any such person was not such officer.

 

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(b) At any time and from time to time, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate, by a manual, facsimile or electronic signature, and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.02, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:

(i) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Sections 2.01 and 3.02, that such form has been established in conformity with the provisions of this Indenture;

(ii) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.02, that such terms have been established in conformity with the provisions of this Indenture; and

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

(c) The Trustee shall not be required to authenticate Securities of any series if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

(d) Notwithstanding the provisions of Section 3.02, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.02 or the Company Order and Opinion of Counsel otherwise required pursuant to Section 3.04(b) at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

(e) Each Security shall be dated the date of its authentication.

(f) No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for below executed by the Trustee by manual, facsimile or electronic signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, 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.

(g) Minor typographical and other minor errors in the text of any Security shall not affect the validity and enforceability of such Security if it has been duly authenticated and delivered by the Trustee.

 

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(h) The Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities with respect to each series of Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the initially issued Securities of such series, (ii) shall be registered in the name of the Depositary or the nominee of the Depositary, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially in the form required in Section 2.02.

The Depositary must, at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

Section 3.05 Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officer executing such Securities may determine (but which do not affect the rights, duties or immunities of the Trustee), as evidenced conclusively by his or her execution of such Securities. Such temporary Securities may be in global form.

(a) If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company in a Place of Payment without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and having the same Original Issue Date and Stated Maturity and having the same terms as such 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 3.06 Registration, Registration of Transfer and Exchange. (a) The Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 10.02 a register (being the combined register of the Security Registrar and all additional transfer agents designated pursuant to Section 10.02 for the purpose of registration of transfer of Securities and sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and the registration of transfers of Securities. The Bank of New York Mellon is hereby appointed the initial Security Registrar, with the Security Register initially to be kept at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 . At all reasonable times each register maintained by the Security Registrar and any additional transfer agents shall be open for inspection by the Trustee.

(a) Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company maintained pursuant to Section 10.02 for such purpose in a Place of Payment for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, of the same Original Issue Date and Stated Maturity and having the same terms.

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

(c) Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

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

 

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

(f) No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.05, 9.06 or 11.07 not involving any transfer.

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

(h) The provisions of clauses (1), (2), (3) and (4) below shall apply only to Global Securities:

 

  (1)

Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

 

  (2)

Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.02.

 

  (3)

Subject to clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

 

  (4)

Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.05, 3.07, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated Security is surrendered to the Trustee together with such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount, having the same Original Issue Date and Stated Maturity and bearing the same Interest Rate as such mutilated Security, and bearing a number not contemporaneously outstanding.

 

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

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

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

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

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

Section 3.08 Payment of Interest; Interest Rights Preserved. (a) Unless otherwise provided as contemplated by Section 3.02, with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. The initial payment of interest on any Security of any series which is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to Section 3.02 with respect to the related series of Securities.

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

(i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited shall be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or the 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 (ii).

 

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

Subject to the foregoing provisions of this Section and Section 3.06, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

Section 3.09 Persons Deemed Owners. (a) Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.06 and 3.08 and unless otherwise specified as contemplated by Section 3.02) interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

(b) None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Section 3.10 Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered shall be promptly cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered to the Trustee shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedure unless otherwise directed by a Company Order; provided, however, that the Trustee may, but shall not be required to, destroy such cancelled Securities.

Section 3.11 Computation of Interest. Except as otherwise specified as contemplated by Section 3.02, for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

Section 3.12 Depositary.

(a) If at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary or if at any time the Depositary shall cease to be a clearing agency registered under the Exchange Act, the Company shall appoint a successor Depositary. If a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Outstanding Securities in exchange for such Global Security or Securities.

 

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(b) The Company may at any time and in its sole discretion (subject to the procedures of the Depositary) determine that Securities issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities, will authenticate and make available for delivery, individual Securities in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing the Outstanding Securities in exchange for such Global Security or Securities.

(c) The Depositary may surrender a Global Security in exchange in whole or in part for individual Securities on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and make available for delivery, without service charge:

 

  (1)

to each Person specified by such Depositary a new individual Security or Securities of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and

 

  (2)

to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.

(d) Upon the exchange of a Global Security for individual Securities in an aggregate principal amount equal to the principal amount of such Global Security, such Global Security shall be canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall make available for delivery such individual Securities to the Persons in whose names such Securities are so registered.

Section 3.13 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

ARTICLE IV

Satisfaction and Discharge

Section 4.01 Satisfaction and Discharge of Indenture in Respect of any Series of Securities. This Indenture shall upon Company Request cease to be of further effect with respect to a series of Securities (except as to any surviving rights of (as applicable) registration of transfer or exchange of Securities of such series herein expressly provided for), and the Trustee, at the request and expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such series, when:

(a) Either

(i) all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or

 

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(ii) all such Securities of such series not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds: (i) money, (ii) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money, or (iii) a combination thereof, in each case in an amount, and in the currency or currency unit in which such Securities of such series are payable, sufficient to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire Indebtedness on such Securities of such series not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities of such series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

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

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

Notwithstanding the satisfaction and discharge of this Indenture with respect to a series, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money and/or U.S. Government Obligations shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under Section 4.02 and Section 10.03(e) shall survive such satisfaction and discharge.

Section 4.02 Application of Trust Money. Subject to the provisions of Section 10.03(e), all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 4.01 (and all proceeds of such U.S. Government Obligations deposited pursuant to Section 4.01) shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee.

ARTICLE V

Remedies

Section 5.01 Events of Default. “Event of Default” with respect to any series of Securities means each one of the events specified below in this Section 5.01, unless it is either inapplicable to a particular series, or is specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution establishing such series of Securities:

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

(ii) commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State

 

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bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it or a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company or for any substantial part of its property, or any general assignment by the Company for the benefit of creditors, or the admission by it in writing of its inability generally to pay its debts as they become due, or the taking by the Company of any corporate action in furtherance of any of the foregoing; or

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

There may be other “defaults” which shall not constitute an Event of Default hereunder with respect to Securities of such series as provided in an Officer’s Certificate or supplemental indenture applicable to the Securities of such series.

Section 5.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.

(a) At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

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

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

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

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

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;

and

(ii) all Events of Default with respect to Securities of that series have been cured or waived as provided in Section 5.13.

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

Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee. (a) The Company covenants that if:

(i) default shall be made in the payment of any installment of interest on any Security when the same shall become due and payable, and such default shall have continued for the period of 30 days,

(ii) default shall be made in the payment of the principal of or premium, if any, on any Security as and when the same shall have become due and payable (subject to clause (iii) below), whether at Maturity of the Security or upon redemption or by declaration or otherwise, and such default shall have continued for any period of grace provided for with respect to such Security, or

 

23


(iii) default shall be made in the payment for any sinking, purchase or analogous fund provided for in respect of any Security as and when the same shall become due and payable, and such default shall have continued for any period of grace provided for with respect to such Security,

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

(b) If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities wherever situated.

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

Section 5.04 Trustee May File Proofs of Claim. (a) In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders in accordance with Section 5.06, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.

(b) Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

Section 5.05 Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, before the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

Section 5.06 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

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

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

THIRD: to the payment of the remainder, if any, to the Company, its successors or assigns or as a court of competent jurisdiction may direct.

Section 5.07 Limitation on Suits. No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

(i) an Event of Default with respect to Securities of such series shall have occurred and be continuing and such Holder has previously given written notice to the Trustee of such continuing Event of Default with respect to the Securities of that series;

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

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

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

(v) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series or of all series (voting as a class) with respect to which such Event of Default has occurred and is continuing;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture (including without limitation the provisions of Section 5.12) to affect, disturb or prejudice the rights of any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions affect, disturb or prejudice the rights of such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.

Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.08) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

Section 5.09 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to and determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

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Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 3.07(f), no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Subject to the provisions of Section 5.07, every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

Section 5.12 Control by Holders. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that:

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

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

(iii) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Trust Officer or Officers of the Trustee, determine that the action so directed would involve the Trustee in personal liability or be unduly prejudicial to Holders not joining therein.

Section 5.13 Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:

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

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

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

Section 5.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of a Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant in the manner and to the extent provided in the Trust Indenture Act; provided

 

26


that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date).

Section 5.15 Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE VI

The Trustee

Section 6.01 Certain Duties and Responsibilities. The duties, responsibilities, protections, privileges, and immunities of the Trustee shall be as provided by the Trust Indenture Act, unless expressly excluded as provided in this Article VI. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

Section 6.02 Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, and if the Trustee has notice thereof in accordance with Section 6.03(c), the Trustee shall transmit to the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any, on) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Trust Officers in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series. For purposes of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become a default with respect to Securities of such series.

Section 6.03 Certain Rights of Trustee. Subject to the provisions of Section 6.01:

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

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

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

 

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

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

(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of Indebtedness or other paper or document;

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

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

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

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

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

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

(m) the Trustee shall not be liable for interest on any money received by it except as may be agreed in writing with the Company and money held by the Trustee need not be segregated from other funds except to the extent required by law; and

(n) the Trustee shall have no responsibility for any actions taken or not taken by the Depositary.

Section 6.04 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

Section 6.05 May Hold Securities. The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities or warrants to purchase Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.

 

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Section 6.06 Money Held in Trust. Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee or any Paying Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

Section 6.07 Compensation and Reimbursement. (a) The Company agrees:

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

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

(iii) to indemnify the Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including taxes, other than taxes based upon, or measured or determined by, the income of the Trustee, (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel) incurred without negligence or willful misconduct on its part, as determined by a court of competent jurisdiction in a final, non-appealable order, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

(b) As security for the performance of the obligations of the Company under this Section, the Trustee shall have a Lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, premium, if any, or interest, if any, on particular Securities.

(c) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(v) and Section 5.01(vi), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law. The provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.

Section 6.08 Disqualification; Conflicting Interests. (a) If the Trustee has or shall acquire any conflicting interest, as defined in Section 310(b) of the Trust Indenture Act, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect provided by, and subject to the provisions of, Section 310(b) of the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or a trustee under any prior indentures between the Company and the Trustee that have not been satisfied and discharged and that may be excluded by the proviso to Section 310(b) (1) of the Trust Indenture Act.

(b) In the event that the Trustee shall fail to comply with the provisions of the preceding sentence with respect to the Securities of any series, the Trustee shall, within 10 days after the expiration of such 90-day period, transmit, in the manner and to the extent provided in Section 1.06, to all Holders of Securities of that series notice of such failure.

 

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(c) Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act.

(d) To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest with respect to the Securities of any series by virtue of being Trustee with respect to the Securities of any particular series of Securities other than that series.

Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee for each series of Securities hereunder which shall be either (i) a corporation organized and doing business under the laws of the United States, which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal or State authority or (ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by authority of such foreign government or apolitical subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees; in either case having a combined capital and surplus of at least $50,000,000. If such corporation or Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such corporation or Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under common control with the Company shall serve as trustee for the Securities of any series issued hereunder. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 6.10 Resignation and Removal; Appointment of Successor.

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

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

(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the removed Trustee within 30 days after the delivery of the evidence of the Act of the Holders, the removed Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

(d) If at any time:

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

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

(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

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then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months (and, in the case of clause (i) above, who is a holder of a Security of a series as to which the Trustee has a conflicting interest) may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

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

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

Section 6.11 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the

 

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same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

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

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

Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

Section 6.13 Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

Section 6.14 Appointment of Authenticating Agent. (a) The Company may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.07, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Trustee and shall at all times be a corporation having a combined capital and surplus of not less than the equivalent of $50,000,000 and subject to supervision or examination by Federal, state or District of Columbia authority or the equivalent foreign authority, in the case of an Authenticating Agent who is not organized and doing business under the laws of the United States. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

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

 

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(c) An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Company may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Trustee. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Company may appoint a successor Authenticating Agent which shall be acceptable to the Trustee and shall mail, or cause to be mailed, written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities, if any, of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

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

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

This is one of the Securities of the series designated herein issued under the within-mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, As Trustee
By:  

 

  [•]
  As Authenticating Agent
By:  

 

  Authorized Officer
Date:  

 

(f) If all the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment or other place where the Company wishes to have Securities of such series authenticated upon original issuance, the Company shall appoint in accordance with this Section an Authenticating Agent (which may be an Affiliate of the Company if eligible to be appointed as an Authenticating Agent hereunder) having an office in such Place of Payment or other place designated by the Company with respect to such series of Securities.

Section 6.15 Indemnities. The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee, the Paying Agent and the Security Registrar and the Trustee in any other capacity and agency role in each of their respective capacities hereunder.

Section 6.16 Electronic Communication. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to this Indenture and related documents and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the

 

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Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

ARTICLE VII

Holders’ Lists and Reports by Trustee and Company

Section 7.01 Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:

(a) semiannually, not later than January 15 and July 15 in each year, a list in such form as the Trustee may reasonably require, of the names and addresses of the Holders of each series of Securities as of the preceding January 1 or July 1, as the case may be; and

(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content, such list to be dated as of a date not more than 15 days prior to the time such list is furnished, provided, however, that, in the case of both Section 7.01(a) and (b), at such times as the Trustee is the Security Registrar and Paying Agent with respect to a particular series of Securities, no such list shall be required to be furnished in respect of such series.

Section 7.02 Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of each series contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of each series received by the Trustee in any capacity as Security Registrar or Paying Agent. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

 

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

Section 7.03 Reports by Trustee. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 commencing with the May 15 occurring after the initial issuance of Securities hereunder, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of Section 313(a) of the Trust Indenture Act.

(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each United States stock exchange upon which any Securities are listed, with the Commission and with the Company.

(c) Reports pursuant to Section 7.03(a) shall be transmitted by mail (i) to all Holders, as their names and addresses appear in the Security Register, (ii) to all Holders as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such purpose, and (iii) to all Holders whose names and addresses have been furnished or received by the Trustee pursuant to Sections 7.01 and 7.02.

Section 7.04 Reports by Company. (a) The Company shall:

(i) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

(ii) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time in such rules and regulations; and

(iii) transmit by mail to all Holders of Securities, in the manner and to the extent provided in Section 7.03(c) with respect to reports to be transmitted pursuant to Section 7.03(a), within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraph (i) of (ii) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

(b) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on Officer’s Certificates).

 

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ARTICLE VIII

Consolidation, Merger, Conveyance or Transfer

Section 8.01 Company May Consolidate, Etc., Only on Certain Terms. (a) Subject to Section 8.01(b), the Company shall not consolidate with or merge into any other Person or convey or transfer its assets substantially as an entirety to any Person, unless:

(i) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the assets of the Company substantially as an entirety shall be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest, if any, on all the Securities and the performance or observance of every covenant of this Indenture and any supplemental indenture relating to such Securities on the part of the Company to be performed or observed;

(ii) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall exist; and

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

(b) The provisions of Section 8.01(a)(i), (ii) and (iii) shall not be applicable to the direct or indirect conveyance or transfer of all or any portion of the stock, assets or liabilities of any of the Company’s wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries of the Company.

Section 8.02 Successor Corporation Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person, or any conveyance or transfer of the assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; and in the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph of this instrument or any successor corporation which shall have theretofore become such in the manner prescribed in Section 8.01) shall be discharged from all liability under this Indenture and in respect of the Securities and may be dissolved and liquidated.

ARTICLE IX

Supplemental Indentures

Section 9.01 Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(i) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities, or affect adversely the terms, if any, of conversion or exchange of any Security into cash or any other securities or property of the Company or of any other Person;

(ii) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company (including surrendering any right of the Company to redeem a series of the Securities); provided that no such amendment or modification may add additional Events of Default or acceleration events with respect to a series of Securities;

 

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

(iv) to add to, change or eliminate any of the provisions of this Indenture; provided that any such addition, change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is adversely affected by such change in or elimination of such provision;

(v) to secure the Securities;

(vi) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and/or 3.02;

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

(viii) to provide for the issuance of uncertificated Securities of one or more series in addition to or in place of certificated Securities;

(ix) to conform any provision hereof to the requirements of the Trust Indenture Act or otherwise as necessary to comply with applicable law;

(x) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein;

(xi) to conform this Indenture or the Securities to the description thereof in the related prospectus, offering memorandum or disclosure document; or

(xii) to make any other provisions with respect to matters or questions arising under this Indenture; provided such other provisions as may be made shall not adversely affect the interests of the Holders of Outstanding Securities of any series in any material respect.

Section 9.02 Supplemental Indentures with Consent of Holders. (a) With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

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

 

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

(iii) change any obligation of the Company, with respect to Outstanding Securities of a series, to maintain an office or agency in the places and for the purposes specified in Section 10.02 for such series,

(iv) modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the Holders of a specified percentage of the aggregate principal amount of Outstanding Securities of such series (which provision may be made pursuant to Section 3.02 without the consent of any Holder) or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) and Section 9.01(vii); or

(v) modify the provisions of Article XIII of this Indenture with respect to the subordination of Outstanding Securities of any series in a manner materially adverse to the Holders thereof.

(b) For purposes of this Section 9.02, if the Securities of any series are issuable upon the exercise of warrants, each holder of an unexercised and unexpired warrant with respect to such series shall be deemed to be a Holder of Outstanding Securities of such series in the amount issuable upon the exercise of such warrant. For such purposes, the ownership of any such warrant shall be determined by the Company in a manner consistent with customary commercial practices. The Trustee for such series shall be entitled to rely on an Officer’s Certificate as to the principal amount of Securities of such series in respect of which consents shall have been executed by holders of such warrants.

(c) A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

Section 9.03 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise.

Section 9.04 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

Section 9.05 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

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Section 9.06 Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

ARTICLE X

Covenants

Section 10.01 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any, on) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture.

Section 10.02 Maintenance of Office or Agency. (a) If Securities of a series are issuable only as Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will maintain (i) in the Borough of Manhattan, The City of New York, an office or agency where any Securities may be presented or surrendered for payment, where any Securities may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served, (ii) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series may be presented and surrendered for payment (including payment of any additional amounts payable on Securities of that series, if any); provided, however, that if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in any required city located outside the United States, so long as the Securities of that series are listed on such exchange, and (iii) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States, an office or agency where any Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company initially appoints the Trustee, acting through its Corporate Trust Office, as its agent for said purposes. The Company will give prompt written notice to the Trustee and the Holders of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands.

(b) The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the Holders of any such designation or rescission and of any change in the location of any such other office or agency.

Section 10.03 Money for Securities Payments to be Held in Trust. (a) If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any, on) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the relevant currency (or a sufficient number of currency units, as the case may be) sufficient to pay the principal (and premium, if any, on) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.

 

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(b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, at or prior to the opening of business on each due date of the principal of (and premium, if any, on) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.

(c) The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

(i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent;

(ii) give the Trustee written notice of any default by the Company (or any other obligor upon the Securities of that series) in making of any payment of principal (and premium, if any, on) or interest, if any, on the Securities of that series; and

(iii) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

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

(e) Any money or U.S. Government Obligation (including the proceeds thereof and the interest thereon) deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of and premium, if any, on or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Company (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) or (if then held by the Company) shall (unless otherwise required by mandatory provision of applicable escheat or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense and at the direction of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. All moneys payable to the Company by the Trustee or any Paying Agent as provided in the preceding sentence shall be paid to the Company on May 31 of each year.

Section 10.04 Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on December 31), a written certificate covering the preceding fiscal year signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, stating that:

(i) a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision; and

 

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(ii) to his knowledge, based on such review, the Company has fulfilled all its obligations, and has complied with all conditions and covenants, under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, condition or covenant, specifying each such default known to him and the nature and status thereof. For purposes of this Section 10.04, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.

Section 10.05 Limitations on Issue or Disposition of Stock of Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, issue, sell, assign, transfer or otherwise dispose of, directly or indirectly, any of the Capital Stock (other than nonvoting preferred stock) of any Restricted Subsidiary (except to the Company or to one or more Restricted Subsidiaries or for the purpose of qualifying directors); provided, however, that this covenant shall not apply if:

(i) all or any part of such Capital Stock is sold, assigned, transferred or otherwise disposed of in a transaction for consideration which is at least equal to the fair value of such Capital Stock, as determined by the Board of Directors (acting in good faith); or

(ii) the issuance, sale, assignment, transfer or other disposition is required to comply with the order of a court or regulatory authority of competent jurisdiction, other than an order issued at the request of the Company or of one of its Restricted Subsidiaries.

Section 10.06 Waiver of Certain Covenants. The Company may omit in any particular instance, to comply with any covenant or condition set forth in Section 10.05, if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of all Outstanding Securities, and the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of each series to be affected, shall either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.

ARTICLE XI

Redemption of Securities

Section 11.01 Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.02 for Securities of any series) in accordance with this Article.

Section 11.02 Election to Redeem; Notice to Trustee. If the Company shall desire to exercise the right to redeem all, or, as the case may be, any part of the Securities of any series, the Company shall, at least 15 days but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) notify the Trustee in writing of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

Section 11.03 Selection by Trustee of Securities to be Redeemed.

(a) If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by the Trustee in accordance with its customary practices or as the Company may direct in writing in accordance with DTC procedures.

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

 

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

Section 11.04 Notice of Redemption.

(a) Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 15 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, as provided in Section 1.06.

(b) Each such notice of redemption shall specify the following:

(i) the Redemption Date;

(ii) the Redemption Price or, if not then ascertainable, the manner of calculation thereof;

(iii) the Place or Places of Payment;

(iv) that the Securities of such series are being redeemed at the option of the Company pursuant to provisions contained in the terms of the Securities of such series or in a supplemental indenture establishing such series, if such be the case;

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

(vi) a brief statement of the facts permitting such redemption;

(vii) that on the Redemption Date the Redemption Price will become due and payable upon each Security redeemed;

(viii) that payment will be made upon presentation and surrender of the applicable Securities;

(ix) that any interest accrued to the Redemption Date will be paid as specified in said notice;

(x) that the redemption is pursuant to the sinking fund, if such is the case; and

(xi) that on and after said Redemption Date any interest thereon or on the portions thereof to be redeemed will cease to accrue.

(c) If less than all the Securities of any series are to be redeemed, the notice of redemption shall specify the registration and, if any, CUSIP numbers of the Securities of such series to be redeemed. In case any Security of any series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the Redemption Date, upon surrender of such Security, a new Security or Securities of such series in aggregate principal amount equal to the unredeemed portion thereof will be issued, or, in the case of Securities providing appropriate space for such notation, at the option of the Holders, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.

(d) Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or by the Trustee in the name and at the expense and written request of the Company and such written request shall be given to the Trustee 15 days prior to the date of the giving of the notice of redemption or such lesser time as may be agreed to by the Trustee. The notice of redemption if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, a failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.

 

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Section 11.05 Deposit of Redemption Price. On or before the opening of business on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money in the relevant currency (or a sufficient number of currency units, as the case may be) sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.

Section 11.06 Securities Payable on Redemption Date. (a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear and accrue any interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with any accrued but unpaid interest to, but excluding, the Redemption Date; provided, however, that unless otherwise specified as contemplated by Section 3.02, installments of accrued and unpaid interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.08.

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

Section 11.07 Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and Stated Maturity, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered or, in the case of Securities providing appropriate space for such notation, at the option of the Holder, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the Payment of the redeemed portion thereof.

ARTICLE XII

Sinking Funds

Section 12.01 Applicability of Article. (a) The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 3.02 for Securities of such series.

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

Section 12.02 Satisfaction of Sinking Fund Payments with Securities. The Company (i) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (ii) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of

 

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such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and the outstanding principal amount thereof credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

Section 12.03 Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.06 and 11.07.

ARTICLE XIII

Subordination of Securities

Section 13.01 Securities Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities are hereby expressly made subordinate and subject in right of payment and upon liquidation to the prior payment in full of all amounts then due and payable in respect of all Senior Indebtedness.

The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article (subject to Article IV), the payment of the principal of (and premium, if any) and interest on each and all of the Securities are hereby expressly made subordinate and subject in right of payment and upon liquidation to the prior payment in full in cash of all Senior Indebtedness.

This Article XIII shall constitute a continuing offer to all Persons who become holders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness and such holders are made obligees hereunder and any one or more of them may enforce such provisions. Holders of Senior Indebtedness need not prove reliance on the subordination provisions hereof.

Section 13.02 Payment Over of Proceeds Upon Dissolution, Etc.

(a) Upon any payment or distribution of assets of the Company to creditors upon (i) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its assets, or (ii) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (iii) any assignment for the benefit of creditors or any other marshalling of assets or liabilities of the Company, then and in any such event specified in (i), (ii) or (iii) above (each such event, if any, herein sometimes referred to as a “Proceeding”);

(i) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash of all amounts due on or to become due on or in respect of all Senior Indebtedness, before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character whether in cash, property or securities (including any payment or distribution which may be payable or deliverable to Holders of the Securities made in respect of any other indebtedness of the Company subordinated to the payment of the Securities, such payment or distribution being hereinafter referred to as a “Junior Subordinated Payment”), on account of the principal of or interest on the Securities or on account of any purchase, redemption or other acquisition of Securities by the Company, any Subsidiary of the Company, the Trustee or any Paying Agent (all such payments, distributions, purchases, redemptions and acquisitions, whether or not in connection with a Proceeding, herein referred to, individually and collectively, as a “Securities Payment”); and

 

 

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(ii) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, to which the Holders of the Securities or the Trustee would be entitled but for the provisions of this Article XIII (including, without limitation, any Junior Subordinated Payment) shall be paid by the liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment to the holders of such Senior Indebtedness.

(b) In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received in connection with any Proceeding any Securities Payment before all Senior Indebtedness is paid in full or payment thereof provided for in cash, then and in such event such Securities Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full in cash after giving effect to any concurrent payment to or for the holders of Senior Indebtedness.

(c) For purposes of this Article only, the words “any payment or distribution of any kind or character, whether in cash, property or securities” shall not be deemed to include a payment or distribution of stock or securities of the Company provided for by a plan of reorganization or readjustment authorized by an order or decree of a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy law or of any other corporation provided for by such plan of reorganization or readjustment which stock or securities are subordinated in right of payment to all then outstanding Senior Indebtedness to substantially the same extent, or to a greater extent than, the Securities are so subordinated as provided in this Article. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of all or substantially all of its properties and assets as an entirety to another Person upon the terms and conditions set forth in Article VIII shall not be deemed a Proceeding for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article VIII.

Section 13.03 No Payment When Senior Indebtedness in Default.

(a) (i) In the event and during the continuation of any default in the payment of principal, premium, if any, or interest on any Senior Indebtedness beyond any applicable grace period with respect thereto, (ii) in the event that any event of default with respect to any Senior Indebtedness shall have occurred and be continuing, permitting the direct holders of that Senior Indebtedness (or a trustee on behalf of the holders thereof) to accelerate maturity of that Senior Indebtedness, whether or not the maturity is in fact accelerated (unless, in the case of either subclause (i) or (ii) of this clause (a), the payment default or event of default has been cured or waived or ceased to exist and any related acceleration has been rescinded), or (iii) in the event that any judicial proceeding shall be pending with respect to a payment default or event of default described in subclause (i) or (ii) of this clause (a), no payment or distribution of any kind or character, whether in cash, securities or other property, shall be made by the Company on account of the principal of or interest on the Securities or on account of any purchase, redemption or other acquisition of Securities by the Company, any Subsidiary of the Company, the Trustee or any Paying Agent unless and until all amounts then due and payable in respect of such Senior Indebtedness, including any interest accrued after such event occurs, shall have been paid in full.

 

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(b) In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if written notice thereof shall, at least three Business Days prior to the time of such payment, have been received by the Responsible Trust Officer or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.

(c) The provisions of this Section shall not apply to any Securities Payment with respect to which Section 13.02 would be applicable.

Section 13.04 Payment Permitted if No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent the Company, at any time except during the pendency of any Proceeding referred to in Section 13.02 or under the conditions described in Section 13.03, from making Securities Payments.

Section 13.05 Subrogation to Rights of Holders of Senior Indebtedness. Subject to the payment in full in cash of all Senior Indebtedness, the Holders of the Securities shall be subrogated (equally and ratably with the holders of all indebtedness of the Company which by its express terms is subordinated to indebtedness of the Company to substantially the same extent as the Securities are subordinated and is entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness.

Section 13.06 Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (i) impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional (and which, subject to the rights under this Article of the holders of Senior Indebtedness, is intended to rank equally with all other general obligations of the Company), to pay to the Holders of the Securities the principal of and interest on the Securities as and when the same shall become due and payable in accordance with their terms; or (ii) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness; or (iii) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.

Section 13.07 Trustee to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding-up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, receivership proceedings, or otherwise, the timely filing of a claim for the unpaid balance of the indebtedness of the Company owing to such Holder in the form required in such proceedings and the causing of such claim to be approved. If the Trustee does not file a proper claim at least 30 days before the expiration of the time to file such claim, then the holders of the Senior Indebtedness and their agents, trustees or other representatives are authorized to do so (but shall in no event be liable for any failure to do so) for and on behalf of the Holders of the Securities.

Section 13.08 No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.

 

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(a) No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.

(b) Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) permit the Company to borrow, repay and then reborrow any or all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iv) release any Person liable in any manner for the collection of Senior Indebtedness; (v) exercise or refrain from exercising any rights against the Company and any other Person; and (vi) apply any sums received by them to Senior Indebtedness.

Section 13.09 Notice to Trustee.

(a) The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities or that would end such prohibition. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities or that would end such prohibition, unless and until a Responsible Trust Officer shall have received written notice thereof from the Company, any holder of Senior Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice of any prohibition provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Security), then, anything herein contained to the contrary notwithstanding, but without limiting the rights and remedies of the holders of Senior Indebtedness or any trustee, fiduciary or agent therefor, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within two Business Days prior to such date. Any notice required or permitted to be given to the Trustee by a holder of Senior Indebtedness or by any agent, trustee or representative thereof shall be in writing and shall be sufficient for every purpose hereunder if in writing and either (i) sent via facsimile or email to the Trustee, the receipt of which is confirmed via telephone, or (ii) mailed, first class postage prepaid, or sent by overnight carrier, to the Trustee addressed to its Corporate Trust Office or to any other address furnished in writing to such holder of Senior Indebtedness by the Trustee.

(b) Subject to the provisions of Section 6.01 hereof, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee, fiduciary or agent therefore) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee, fiduciary or agent therefor. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.

(c) Notwithstanding anything else contained herein, no notice, request or other communication to or with the Trustee shall be deemed given unless received by a Responsible Trust Officer at the Corporate Trust Office.

 

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Section 13.10 Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Article VI hereof, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article, provided that the foregoing shall apply only if such court has been apprised of the provisions of this Article.

Section 13.11 Trustee Not Fiduciary For Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.

Section 13.12 Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustees Rights.

(a) The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

(b) Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07 hereof.

Section 13.13 Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 13.12 hereof shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.

ARTICLE XIV

Defeasance and Covenant Defeasance

Section 14.01 Companys Option to Effect Defeasance or Covenant Defeasance. The Company may elect, at its option at any time, to have Section 14.02 or Section 14.03 applied to any Securities upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution.

Section 14.02 Defeasance and Discharge. Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 14.04 are satisfied (“Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company and upon Company Request, shall execute proper instruments acknowledging the same), subject to the following, which shall survive until otherwise terminated or discharged hereunder: (i) the Company’s obligations with respect to such Securities under Sections 3.05, 3.06, 3.07, 10.02 and 10.03; (ii) the rights, powers, trusts, duties and immunities of the Trustee hereunder; and (iii) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 14.03 applied to such Securities.

 

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Section 14.03 Covenant Defeasance. Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities the Company shall be released from its obligations under Section 8.01, Section 10.06 and any covenants provided pursuant to 9.01(ii) for the benefit of the Holders of such Securities shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 14.04 are satisfied (“Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.

Notwithstanding any Covenant Defeasance with respect to Section 8.01, any Person that would otherwise have been required to assume the obligations of the Company pursuant to said Section shall be required, as a condition to any merger, consolidation, conveyance or transfer contemplated thereby, to assume the obligations of the Company to the Trustee under Sections 6.07 and 14.05.

Section 14.04 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 14.02 or Section 14.03 to any Securities:

(i) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money, or (C) a combination thereof, in each case in an amount sufficient to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities due on or before the respective Stated Maturities or the Redemption Date, in accordance with the terms of this Indenture and such Securities; provided that the Company shall deliver to the Trustee an opinion of a nationally recognized firm of independent public accountants expressed in a written certification, as to the sufficiency of deposits made by the Company pursuant to this Section.

(ii) In the event of an election to have Section 14.02 apply to any Securities, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in the case of either (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

(iii) In the event of an election to have Section 14.03 apply to any Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

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

 

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(v) No default in the payment of principal of, premium, if any, or interest if any, on any Senior Indebtedness has occurred and is continuing at the time of such deposit, or an event of default on any Senior Indebtedness then exists and has resulted in such Senior Indebtedness becoming or being declared due and payable prior to the date it otherwise would have become due and payable.

(vi) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any indenture or other agreement or instrument for borrowed money to which the Company is a party or by which it is bound.

(vii) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.

(viii) If such Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.

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

Section 14.05 Deposited Money or U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. Subject to the provisions of Section 10.03(e), all money or U.S. Government Obligations (including the proceeds thereof and the interest thereon) deposited with the Trustee pursuant to Section 14.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 14.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 14.04 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee or in the opinion of such other Persons delivered to the Trustee as shall be reasonably satisfactory to the Trustee (which may be the same opinion delivered to the Trustee under Section 14.04(i)), are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

Section 14.06 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 14.02 or 14.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 14.06 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

* * *

 

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

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and with respect to the Company its corporate seal to be hereunto affixed and attested, all as of the day and year first above written.

 

LINCOLN NATIONAL CORPORATION,
By:  

/s/ Christopher A. Giovanni

  Name: Christopher A. Giovanni
  Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ Latoya S Elvin

  Name: Latoya S Elvin
  Title: Vice President

Exhibit 4.4

 

 

 

FIRST SUPPLEMENTAL SUBORDINATED INDENTURE

DATED AS OF AUGUST 11, 2021

BETWEEN

LINCOLN NATIONAL CORPORATION

AS ISSUER

AND

THE BANK OF NEW YORK MELLON,

AS TRUSTEE

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I

 

DEFINITIONS

 

Section 1.1

  Definition of Terms      2  
ARTICLE II

 

GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED NOTES

 

Section 2.1

  Designation and Principal Amount      8  

Section 2.2

  Maturity      9  

Section 2.3

  Form and Payment      9  

Section 2.4

  Interest      9  
ARTICLE III

 

REDEMPTION OF THE SUBORDINATED NOTES

 

Section 3.1

  Optional Redemption      12  

Section 3.2

  No Sinking Fund      13  
ARTICLE IV

 

OPTIONAL DEFERRAL OF INTEREST AND TRIGGER EVENTS

 

Section 4.1

  Optional Deferral of Interest      13  

Section 4.2

  Notices of Deferral      14  
ARTICLE V

 

EVENTS OF DEFAULT

 

Section 5.1

  Events of Default      14  
ARTICLE VI

 

COVENANTS

 

Section 6.1

  Limitation on Payment of Current Interest when Optionally Deferred Interest is Outstanding      22  

Section 6.2

  [Reserved]      23  

Section 6.3

  Obligation to Effect Certain Sales of Qualifying Securities      24  

Section 6.4

  Payment of Expenses      25  

Section 6.5

  Payment Upon Resignation or Removal      26  

 

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ARTICLE VII

 

SUBORDINATION

 

Section 7.1

  Agreement to Subordinate      26  

Section 7.2

  Liquidation; Dissolution; Bankruptcy      26  

Section 7.3

  Default on Senior Indebtedness      27  

Section 7.4

  When Distribution Must Be Paid Over      27  

Section 7.5

  Subrogation      27  

Section 7.6

  Relative Rights      28  

Section 7.7

  Rights of the Trustee; Holders of Senior Indebtedness      28  

Section 7.8

  Subordination May Not Be Impaired      29  

Section 7.9

  Distribution      29  

Section 7.10

  Authorization to Effect Subordination      29  
ARTICLE VIII

 

[RESERVED]

 

Section 8.1

  [Reserved]      29  
ARTICLE IX

 

FORM OF SUBORDINATED NOTE

 

Section 9.1

  Form of Subordinated Note      30  
ARTICLE X

 

ORIGINAL ISSUE OF SUBORDINATED NOTES

 

Section 10.1

  Original Issue of Subordinated Notes      39  
ARTICLE XI

 

[RESERVED]

 

Section 11.1

  [Reserved]      40  
ARTICLE XII

 

DEFEASANCE OF CERTAIN COVENANTS

 

Section 12.1

  Termination of Company’s Obligations Under Certain Covenants      40  

Section 12.2

  Application of Trust Money      42  

Section 12.3

  Repayment to Company      42  

Section 12.4

  Indemnity for Government Obligations      42  

Section 12.5

  Supplemental Indentures Without Consent of Holders      42  
ARTICLE XIII

 

[RESERVED]

 

Section 13.1

  [Reserved]      42  

 

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ARTICLE XIV

 

HOLDERS’ MEETINGS

 

Section 14.1

  Purposes of Meetings      44  

Section 14.2

  Call of Meetings by Trustee      44  

Section 14.3

  Call of Meetings by Company or Holders      45  

Section 14.4

  Qualifications for Voting      45  

Section 14.5

  Regulations      45  

Section 14.6

  Voting      46  
ARTICLE XV

 

MISCELLANEOUS

 

Section 15.1

  Ratification of Indenture      46  

Section 15.2

  [Reserved]      46  

Section 15.3

  Trustee Not Responsible for Recitals; Concerning the Calculation Agent      47  

Section 15.4

  Governing Law      47  

Section 15.5

  Separability      47  

Section 15.6

  Counterparts      47  

 

 

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FIRST SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of August 11, 2021 (the “First Supplemental Subordinated Indenture”), between Lincoln National Corporation, a corporation duly organized and existing under the laws of the State of Indiana (the “Company”), and The Bank of New York Mellon , as trustee (the “Trustee”), supplementing the Subordinated Indenture, dated as of August 11, 2021 (the “Base Indenture”).

WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide for the future issuance of the Company’s subordinated notes, debentures or other evidence of Indebtedness (the “Securities”), to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture;

WHEREAS, pursuant to a Prospectus dated August 5, 2021, the Company offered to exchange any and all of certain capital securities for a new series of the Company’s Securities to be known as its Floating Rate Subordinated Notes due 2066 (the “Subordinated Notes”), which Securities shall be in the form of subordinated notes issued by the Company;

WHEREAS, pursuant to the terms of the Base Indenture and this First Supplemental Subordinated Indenture (together, the “Indenture”), the Company desires to provide for the establishment of the Subordinated Notes with specific terms and provisions, the form and substance of such Subordinated Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture; and

WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Subordinated Indenture, and all requirements necessary to make this First Supplemental Subordinated Indenture a valid instrument in accordance with its terms, and to make the Subordinated Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done and performed, and the execution and delivery of this First Supplemental Subordinated Indenture has been duly authorized in all respects:

NOW THEREFORE, in consideration of the tender and acceptance of the Subordinated Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Subordinated Notes and the terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows:


ARTICLE I

DEFINITIONS

Section 1.1 Definition of Terms.

Unless the context otherwise requires:

(a) a term not defined herein that is defined in the Base Indenture has the same meaning when used in this First Supplemental Subordinated Indenture;

(b) the definition of any term in this First Supplemental Subordinated Indenture that is also defined in the Base Indenture shall supersede the definition of such term in the Base Indenture;

(c) a term defined anywhere in this First Supplemental Subordinated Indenture has the same meaning throughout;

(d) the singular includes the plural and vice versa;

(e) headings are for convenience of reference only and do not affect interpretation;

(f) the following terms have the meanings given to them in this Section 1.1(e):

“Benchmark” means, initially, 3-Month LIBOR; provided, that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to 3-Month LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.

“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by Company or its designee as of the Benchmark Replacement Date:

(a) the sum of: (i) the ISDA Fallback Rate and (ii) the Benchmark Replacement Adjustment; or

(b) the sum of: (i) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (ii) the Benchmark Replacement Adjustment.

“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by Company or its designee as of the Benchmark Replacement Date:

(a) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or

(b) the spread adjustment (which may be a positive or negative value or zero) that has been selected by Company or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated floating rate notes at such time.

 

 

 

 

-2-


“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions or interpretations of interest payment period, the timing and frequency of determining rates and making payments of interest, the rounding of amounts or tenors, and other administrative matters) that the Company or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company or its designee decides that adoption of any portion of such market practice is not administratively feasible or if Company or its designee determines that no market practice for use of the benchmark replacement exists, in such other manner as Company or its designee determines is reasonably practicable).

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark (including any daily published component used in the calculation thereof):

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or

(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the date of the public statement or publication of information referenced therein.

For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):

(a) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component);

(b) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator

 

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of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or

(c) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.

“Bloomberg screen HP US0003M” means the display on Bloomberg screen HP US0003M or any successor service or page for the purpose of displaying the London interbank offered rates of major banks.

“Business Day” means any day which is not a Saturday, a Sunday, a legal holiday or a day on which banking institutions or trust companies located in New York City are authorized or obligated by law or executive order to close.

“Calculation Agent” means, initially, the Trustee.

“Capital Regulator” means the governmental agency or instrumentality, if any, that has group-wide oversight of the Company’s regulatory capital.

“Company” shall have the meaning set forth in the preamble of this First Supplemental Subordinated Indenture.

“Coupon Rate” means the Floating Rate.

“Deferral Period” means the period commencing on an Interest Payment Date with respect to which the Company defers interest pursuant to Section 4.1 and ending on the earlier of (i) the fifth anniversary of that Interest Payment Date and (ii) the next Interest Payment Date on which the Company has paid all deferred and unpaid amounts (including compounded interest on such deferred amounts) and all other accrued interest on the Subordinated Notes.

“Depositary”, with respect to the Subordinated Notes, means The Depository Trust Company or any successor clearing agency.

“First Supplemental Subordinated Indenture” has the meaning provided in the preamble hereto.

“Floating Rate” means the rate of interest on the Subordinated Notes.

“Indenture” has the meaning set forth in the preamble of this First Supplemental Subordinated Indenture.

 

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“Interest Payment Date” means each February 17, May 17, August 17 and November 17, commencing August 17, 2021; provided that if any such day from and after the first Interest Payment Date is not a Business Day, then the Interest Payment Date shall be the next succeeding day that is a Business Day, except that if such Business Day is in the next succeeding calendar month, then such Interest Payment Date will be the immediately preceding Business Day.

“Interest Payment Period” means the quarterly period from and including an Interest Payment Date to but not including the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be determined from and including May 17, 2021 (subject to Section 2.1(b)).

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.

“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.

“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.

“LIBOR Determination Date” means 11:00 a.m. (London time) on the second London Banking Day immediately preceding the first day of an Interest Payment Period.

“London Banking Day” means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.

“Maturity Date” means the date on which the Subordinated Notes mature as specified in Section 2.2 hereof and on which the principal shall be due and payable together with all accrued and unpaid interest thereon including all compounded interest thereon.

 

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“Parity Securities” means Indebtedness of the Company that by its terms ranks in right of payment upon liquidation of the Company on a parity with the Subordinated Notes, and includes the Subordinated Notes.

“Rating Agency Event” means that any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act that then publishes a rating for the Company (a “rating agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Subordinated Notes, which amendment, clarification or change results in:

(a) the shortening of the length of time the Subordinated Notes are assigned a particular level of equity credit by that rating agency compared to the length of time they would have been assigned that level of equity credit by that rating agency or its predecessor on the date hereof, or

(b) the lowering of the equity credit (including up to a lesser amount) assigned to the Subordinated Notes by that rating agency compared to the equity credit assigned by that rating agency or its predecessor on the date hereof.

“Record Date” has the meaning provided in Section 2.4(f).

“Reference Time” with respect to any determination of the Benchmark means (i) if the Benchmark is 3-Month LIBOR, 11:00 a.m. (London time) on the particular Interest Determination Date, and (ii) if the Benchmark is not 3-Month LIBOR, the time determined by the Company or its designee in accordance with the Benchmark Replacement Conforming Changes.

“Registered Security” means any Security in the form established pursuant to Section 9.1 hereof which is registered as to principal and interest in the Securities Register.

“Regulatory Capital Event” means the Company’s good faith determination that, as a result of:

(a) any amendment to, or change in, the laws, rules or regulations of the United States or any political subdivision of or in the United States or any other governmental agency or instrumentality as may then have group-wide oversight of the Company’s regulatory capital that is enacted or becomes effective after the date hereof,

(b) any proposed amendment to, or change in, those laws, rules or regulations that is announced or becomes effective after the date hereof, or

(c) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws, rules or regulations that is announced after the date hereof,

 

 

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there is more than an insubstantial risk that the Company would not be entitled to treat an amount equal to the full principal amount of the Subordinated Notes outstanding from time to time as “Tier 2 Capital” (or a substantially similar concept) for purposes of the capital adequacy rules of any Capital Regulator to which the Company is or will be subject; provided that the proposal or adoption of any criterion:

(i) that is substantially the same as the corresponding criterion in the capital adequacy rules of the Board of Governors of the Federal Reserve System applicable to bank holding companies as of the date hereof, or

(ii) that would result in the full principal amount of the Subordinated Notes outstanding from time to time not qualifying as “Tier 2 Capital” (or a substantially similar concept) for purposes of the capital adequacy rules of the Capital Regulator solely because the Company may redeem the Subordinated Notes at its option upon the occurrence of a Rating Agency Event will not constitute a Regulatory Capital Event.

“Securities” has the meaning set forth in the recitals of this First Supplemental Subordinated Indenture.

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

“Subordinated Notes” shall have the meaning set forth in the recitals of this First Supplemental Subordinated Indenture.

“Tax Event” means the receipt by the Company of an opinion of counsel experienced in such matters to the effect that, as a result of any:

(a) amendment to or change (including any announced prospective change) in the laws or regulations of the United States or any political subdivision or taxing authority of or in the United States that is enacted or effective on or after the date hereof,

(b) official administrative decision or judicial decision or administrative action or other official pronouncement (including a private letter ruling, technical advice memorandum or other similar pronouncement) by any court, government agency or regulatory authority interpreting or applying those laws or regulations that is announced on or after the date hereof, or

(c) threatened challenge asserted in connection with an audit of the Company or any of its Subsidiaries, or a threatened challenge asserted in writing against any taxpayer that has raised capital through the issuance of securities that are substantially similar to the Subordinated Notes, which challenge is asserted against the Company or becomes publicly known on or after the date hereof,

there is more than an insubstantial increase in the risk that interest accruing or payable by the Company on the Subordinated Notes is not, or at any time subsequent to the Company’s receipt of such opinion will not be, deductible by the Company, in whole or in part, for U.S. federal income tax purposes.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

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“3-Month LIBOR,” with respect to an Interest Payment Period, means the rate (expressed as a percentage per year) for deposits in U.S. dollars for a three-month period that appears on Bloomberg screen HP US0003M as of the relevant LIBOR Determination Date.

If 3-Month LIBOR cannot be determined for an Interest Payment Period as described above, the Company will select four major banks in the London interbank market. The Company will request that the principal London offices of those four selected banks provide their offered quotations to prime banks in the London interbank market at approximately 11:00 a.m., London time, on the LIBOR Determination Date for such Interest Payment Period to the Company and the Calculation Agent, and if the Calculation Agent is then not the Trustee, to the Trustee. These quotations will be for deposits in U.S. dollars for a three-month period. Offered quotations must be based on a principal amount equal to an amount that is representative of a single transaction in U.S. dollars in the market at the time.

If two or more quotations are provided, 3-Month LIBOR for such Interest Payment Period will be the arithmetic mean of the quotations. If fewer than two quotations are provided, the Company will select three offered rates quoted by three major banks in New York City on the LIBOR Determination Date for such Interest Payment Period. The rates quoted will be for loans in U.S. dollars for a three-month period. Rates quoted must be based on a principal amount equal to an amount that is representative of a single transaction in U.S. dollars in the market at the time. Subject to the immediately following paragraph, if fewer than three New York City banks selected by the Company are quoting rates, 3-Month LIBOR for the applicable Interest Payment Period will be the same as for the immediately preceding Interest Payment Period.

Notwithstanding anything to the contrary, if the Company or its designee determines on or prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining 3-Month LIBOR, then the Benchmark Replacement provisions set forth below under “Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable on the Subordinated Notes.

“Trustee” shall have the meaning set forth in the preamble of this First Supplemental Subordinated Indenture.

ARTICLE II

GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED NOTES

Section 2.1 Designation and Principal Amount.

(a) There is hereby authorized a series of Securities designated the Floating Rate Subordinated Notes due 2066, which shall be in the form of subordinated notes issued by the Company under the Indenture, limited in aggregate principal amount to $562,034,000 which amount shall be as set forth in any written order of the Company for the authentication and delivery of Subordinated Notes pursuant to Section 3.04 of the Base Indenture.

 

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(b) The Company may, from time to time, subject to compliance with any other applicable provisions of this First Supplemental Subordinated Indenture but without the consent of the Holders, create and issue pursuant to this First Supplemental Subordinated Indenture an unlimited principal amount of additional Securities (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Securities, except that any such additional Securities (i) may have a different issue date and issue price from other outstanding Securities and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on other outstanding Securities. Such additional Securities shall constitute part of the same series of Securities hereunder, unless any such adjustment pursuant to this Section 2.1(b) shall cause such additional Securities to constitute, as determined pursuant to an opinion of counsel, a different class of securities than the original series of Securities for U.S. federal income tax purposes.

Section 2.2 Maturity.

The Maturity Date will be May 17, 2066. Notwithstanding the preceding sentence, in the event that the Maturity Date is not a Business Day, then the Maturity Date will be the next succeeding day which is a Business Day, except that if such Business Day is in the next succeeding calendar month, then the Maturity Date will be the immediately preceding day which is a Business Day.

Section 2.3 Form and Payment.

Except as provided in Section 2.4, the Subordinated Notes shall be issued in fully registered definitive form as one or more Global Securities without interest coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof, bearing identical terms. Principal and interest on the Subordinated Notes issued in certificated form will be payable, the transfer of such Subordinated Notes will be registrable and such Subordinated Notes will be exchangeable for Subordinated Notes bearing identical terms and provisions at the office or agency of the Trustee; provided, however, that payment of interest may be made at the option of the Company by check mailed to the Holder at such address as shall appear in the Security Register.

Section 2.4 Interest.

(a) The Subordinated Notes will bear interest at the per annum rate of the Benchmark plus a margin equal to 2.3575% (the “Floating Rate”), payable quarterly on each Interest Payment Date in respect of an Interest Payment Period, in each case subject to the provisions set forth under Section 2.5.

(b) The Calculation Agent will calculate the applicable Floating Rate and the amount of interest payable on each quarterly Interest Payment Date relating to an Interest Payment Period. Promptly upon such determination, the Calculation Agent will notify the Company and, if the Trustee is not then serving as the Calculation Agent, the Trustee, of the Floating Rate for the new quarterly Interest Payment Period. The Floating Rate determined by the Calculation Agent, absent manifest error, will be binding and conclusive on the Company and the holders of the Subordinated Notes and the Trustee. In the event that any Person acting as Calculation Agent shall be unable or unwilling to act, or that such Person shall fail to duly calculate the interest rate for any Interest Payment Period, or the Company proposes to remove such Person as Calculation Agent, the Company shall appoint a successor Calculation Agent (which may be the Company or one of its Affiliates).

 

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(c) Interest payments will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but not including, the next succeeding Interest Payment Date, the date of redemption or the Maturity Date, as the case may be; provided, however, that the amount of interest payable for the first Interest Payment Period shall be determined from and including May 17, 2021. The amount of interest payable will be computed on the basis of a 360-day year and the actual number of days elapsed in each quarterly Interest Payment Period. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one-hundred-thousandth of a percentage point.

(d) Otherwise than in connection with the maturity or early redemption of the Subordinated Notes or the payment in whole or in part of deferred or overdue interest on the Subordinated Notes, interest on the Subordinated Notes may be paid only on an Interest Payment Date.

(e) To the extent permitted by applicable law, interest not paid when due hereunder, including, without limitation, all interest deferred pursuant to Section 4.1, will accrue and compound quarterly at the applicable Coupon Rate on each Interest Payment Date until paid. References to “interest” in the Base Indenture and this First Supplemental Subordinated Indenture include references to such compounded interest.

(f) The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name the Subordinated Notes is registered at the close of business on the day next preceding the Interest Payment Date; provided, that in the event the Subordinated Notes will not continue to remain in book-entry form or are not in the form of a Global Certificate, the record date for each Interest Payment Date shall be the first day of the month in which such Interest Payment Date occurs (in each case, the applicable “Record Date”). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such Record Date, and may be paid to the Person in whose name the Subordinated Notes is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Subordinated Notes not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Subordinated Notes may be listed, and upon such notice as may be required by such exchange.

 

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Section 2.5 Effect of Benchmark Transition Event

(a) Benchmark Replacement. If the Company or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Subordinated Notes in respect of such determination on such date and all determinations on all subsequent dates.

(b) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Company or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time without the consent of the Holders of the Subordinated Notes or the Trustee.

(c) Decisions and Determinations. Any determination, decision or election that may be made by the Company or its designee pursuant to the Benchmark Transition provisions described herein, including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection:

(i) will be conclusive and binding absent manifest error;

(ii) if made by the Company, will be made in the Company’s sole discretion;

(iii) if made by the Company’s designee, will be made after consultation with the Company, and such designee will not make any such determination, decision or election to which the Company objects; and

(iv) notwithstanding anything to the contrary herein or in the Subordinated Notes, shall become effective without consent from the Holders of the Subordinated Notes or any other party.

(d) Any determination, decision or election pursuant to the Benchmark Replacement provisions set forth in this Section 2.5 shall be made by the Company or its designee (which may be the Company’s Affiliate) on the basis described above, and in no event shall the Trustee, any Paying Agent or the Calculation Agent be responsible for making any such determination, decision or election. The Company may, in its sole discretion, designate any Affiliate of the Company or any other person to make one or more determinations, decisions or elections on a temporary or permanent basis, and the Company may, in its sole discretion, revoke any such designation. Any person so designated in accordance with the immediately preceding sentence will be a “designee” for purposes of these provisions addressing the effect of a Benchmark Transition Event for so long as such designation remains in effect.

(e) None of the Trustee, any Paying Agent or the Calculation Agent shall be under any obligation to (i) monitor, determine or verify the unavailability or cessation of 3-Month LIBOR, or whether or when there has occurred, or to give notice to any other Person of the occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) select, determine or designate any Benchmark Replacement, or other successor or

 

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replacement benchmark index, or whether any conditions to the designation of such a rate or index have been satisfied, (iii) select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement index, or (iv) determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing, including, but not limited to, adjustments as to any alternative spread thereon, the business day convention, interest determination dates or any other relevant methodology applicable to such substitute or successor Benchmark. In connection with the foregoing, each of the Trustee, any Paying Agent and the Calculation Agent shall be entitled to conclusively rely on any determinations made by the Company or its designee without independent investigation, and none will have any liability for actions taken at the direction of the Company in connection therewith.

(f) None of the Trustee, any Paying Agent or the Calculation Agent shall be liable for any inability, failure or delay on its part to perform any of its duties set forth in this First Supplemental Subordinated Indenture or the Base Indenture as a result of the unavailability of 3-Month LIBOR or other applicable Benchmark, including as a result of any failure, inability, delay, error or inaccuracy on the part of any other Person in providing any direction, instruction, notice or information required or contemplated by the terms of this First Supplemental Indenture or the Base Indenture and reasonably required for the performance of such duties. None of the Trustee, Paying Agent or Calculation Agent shall be responsible or liable for the actions of the Company or omissions or for those of the Company’s designee, or for any failure or delay in the performance by the Company or its designee, nor shall any of the Trustee, Paying Agent or Calculation Agent be under any obligation to oversee or monitor the performance of the Company or that of the Company’s designee.

ARTICLE III

REDEMPTION OF THE SUBORDINATED NOTES

Section 3.1 Optional Redemption.

The Subordinated Notes shall be redeemable in accordance with the procedures set forth in Article XI of the Base Indenture:

(a) The Company shall have the right, at its option, to redeem the Subordinated Notes for cash,

(i) in whole at any time or in part, from time to time, on or after August 11, 2026 at a redemption price equal to the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; provided that if the Subordinated Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Subordinated Notes, excluding any Subordinated Notes held by the Company or any of its Affiliates, must remain Outstanding after giving effect to such redemption;

 

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(ii) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Tax Event or a Regulatory Capital Event at a redemption price equal to the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; or

(iii) in whole, but not in part, at any time prior to August 11, 2026 within 90 days after the occurrence of a Rating Agency Event at a redemption price equal to 102% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date;

provided, in each case, that all accrued and unpaid interest, including deferred interest (and compounded interest thereon) shall have been paid in full on all Outstanding Subordinated Notes for all Interest Payment Periods ending on or before the Redemption Date. In the event the Subordinated Notes are treated as “Tier 2 Capital” (or a substantially similar concept) under the capital rules of any Capital Regulator applicable to the Company, any redemption of the Subordinated Notes shall be subject to the Company’s receipt of any required prior approval from such Capital Regulator and to the satisfaction of any conditions set forth in those capital rules and any other applicable regulations of any other Capital Regulator that are applicable to the Company’s redemption of the Subordinated Notes.

(b) In no event, shall the Trustee be responsible for monitoring the ratings of the Subordinated Notes or an occurrence of a Rating Agency Event.

Section 3.2 No Sinking Fund.

The Subordinated Notes are not entitled to the benefit of any sinking fund.

ARTICLE IV

OPTIONAL DEFERRAL OF INTEREST

Section 4.1 Optional Deferral of Interest.

(a) So long as no Event of Default with respect to the Subordinated Notes has occurred or is continuing, the Company shall have the right to elect, at any time and from time to time, to defer the payment of interest on the Subordinated Notes for one or more consecutive Interest Payment Periods that do not exceed five years for any single Deferral Period; provided that no Deferral Period shall extend beyond the Maturity Date, any earlier accelerated maturity date arising from an Event of Default or any other earlier redemption of the Subordinated Notes. If the Company has paid all deferred interest (including compounded interest thereon) on the Subordinated Notes, the Company shall have the right to elect to begin a new Deferral Period pursuant to this Section 4.1.

(b) At the end of any Deferral Period, the Company shall pay all accrued and unpaid deferred interest (including compounded interest thereon) on the Subordinated Notes to the Persons in whose names the Subordinated Notes are registered in the Securities Register at the close of business on the Record Date with respect to the Interest Payment Date at the end of such Deferral Period.

 

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Section 4.2 Notices of Deferral.

The Company shall provide a notice to Holders of Subordinated Notes of the commencement or continuance of any Deferral Period no more than sixty and no fewer than five days prior to the relevant Interest Payment Date. The Company shall provide a notice to the Trustee of the commencement or continuance of any Deferral Period no more than sixty and no fewer than fifteen days prior to the relevant Interest Payment Date. Such notice of deferral, once given, will be irrevocable and the deferral of payments on the related Interest Payment Date will be considered a deferral subject to Section 4.1 above.

ARTICLE V

EVENTS OF DEFAULT

Section 5.1 Events of Default.

(a) Section 5.01 of the Base Indenture shall apply to the Subordinated Notes.

(b) The Trustee shall provide to the Holders of the Subordinated Notes notice of any Event of Default or default with respect to the Subordinated Notes within 90 days after the actual knowledge of a Responsible Trust Officer of the Trustee of such Event of Default or default. However, except in the case of a default in payment on the Subordinated Notes, the Trustee will be protected in withholding the notice if its Responsible Trust Officers determine that withholding of the notice is in the interest of such Holders.

(c) The Trustee shall have no right or obligation under the Indenture or otherwise to exercise any remedies on behalf of any Holders of the Subordinated Notes pursuant to the Indenture in connection with any default, unless such remedies are available under the Indenture and the Trustee is directed to exercise such remedies pursuant to and subject to the conditions of Section 5.12 of the Base Indenture, provided, however, that this provision shall not affect the rights of the Trustee with respect to any Events of Default as set forth in Section 5.01 of the Base Indenture that may occur with respect to the Subordinated Notes. In connection with any such exercise of remedies the Trustee shall be entitled to the same immunities and protections and remedial rights (other than acceleration) as if such default were an Event of Default.

(d) For purposes of this Section 5.1, the term “default” means any of the following events:

(i) the failure to pay interest, including compounded interest, in full on any Subordinated Notes for a period of 30 days after the conclusion of a five-year period following the commencement of any Deferral Period if such Deferral Period has not ended prior to the conclusion of such five-year period;

(ii) the failure to pay principal of, or premium, if any, on the Subordinated Notes when due; or

(iii) failure to comply with any covenant contained in the Indenture or the Subordinated Notes.

 

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ARTICLE VI

COVENANTS

Section 6.1 Certain Restrictions During Optional Deferral Periods.

So long as any Subordinated Notes remain outstanding, (a) if the Company has given notice of its election to defer interest payments on the Subordinated Notes but the related Deferral Period has not yet commenced, or (b) a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to:

(i) declare or pay any dividends or other distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of Capital Stock of the Company;

(ii) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any of the Company’s debt securities that rank upon the Company’s liquidation on a parity with or junior to the Subordinated Notes; or

(iii) make any guarantee payments regarding any guarantee issued by the Company of securities of any Subsidiary if the guarantee ranks upon the Company’s liquidation on a parity with or junior to the Subordinated Notes;

provided, however, the restrictions in clauses (i), (ii) and (iii) above do not apply to:

(1) any purchase, redemption or other acquisition of shares of the Company’s Capital Stock by the Company in connection with:

(a) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of its employees, officers, directors, consultants or independent contractors;

(b) the satisfaction of the Company’s obligations pursuant to any contract entered into prior to the beginning of the applicable Deferral Period;

(c) a dividend reinvestment or shareholder purchase plan; or

(d) the issuance of shares of the Company’s Capital Stock, or securities convertible into or exercisable for such Capital Stock, as consideration in an acquisition transaction, the definitive agreement for which is entered into prior to the applicable Deferral Period;

(2) any exchange, redemption or conversion of any class or series of the Company’s Capital Stock, or shares of the Capital Stock of one of its Subsidiaries, for any other class or series of the Company’s Capital Stock, or of any class or series of the Company’s Indebtedness for any class or series of the Company’s Capital Stock;

 

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(C) any purchase of fractional interests in shares of the Company’s Capital Stock pursuant to the conversion or exchange provisions of such shares or the securities being converted or exchanged;

(D) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, stock or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto;

(E) any dividend in the form of stock, warrants, options or other rights where the dividend stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock; or

(F) (i) any payment of current or deferred interest on Parity Securities that is made pro rata to the amounts due on such Parity Securities (including the Subordinated Notes) and (ii) any payments of principal or current or deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities.

For the avoidance of doubt, notwithstanding anything herein to the contrary, no terms of the Subordinated Notes will restrict in any manner the ability of any of the Subsidiaries to pay dividends to the Company or any other Subsidiaries or make any distributions to the Company or to any other Subsidiaries.

Section 6.2 [Reserved.]

Section 6.3 Payment of Expenses.

In connection with the offering, sale and issuance of the Subordinated Notes, the Company, in its capacity as borrower with respect to the Subordinated Notes, shall pay all costs and expenses relating to the offering, sale and issuance of the Subordinated Notes, including compensation of the Trustee under the Indenture in accordance with the provisions of Section 6.07 of the Base Indenture.

Section 6.4 Payment Upon Resignation or Removal.

Upon termination of this First Supplemental Subordinated Indenture or the Base Indenture or the removal or resignation of the Trustee, the Company shall pay to the Trustee all amounts accrued to the date of such termination, removal or resignation.

ARTICLE VII

SUBORDINATION

Section 7.1 Subordination.

The subordination provisions of Article XIII of the Base Indenture shall apply to the Notes.

 

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ARTICLE VIII

[RESERVED]

ARTICLE IX

FORM OF SUBORDINATED NOTE

Section 9.1 Form of Subordinated Note.

The Subordinated Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the following forms:

(FORM OF FACE OF NOTES)

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

[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]

LINCOLN NATIONAL CORPORATION

Floating Rate Subordinated Notes

 

No. R-1    $__________
   CUSIP No. ____________

LINCOLN NATIONAL CORPORATION, a corporation organized and existing under the laws of Indiana (hereinafter called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________________________________________, or registered assigns, the principal sum of __________________________ dollars ($____________) on May 17, 2066 (the “Maturity Date”). Notwithstanding the preceding sentence, in the event that the Maturity

 

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Date is not a Business Day, then the Maturity Date will be the next succeeding day which is a Business Day, except if such Business Day is in the next succeeding calendar month then the Maturity Date will be the immediately preceding day which is a Business Day. The Subordinated Notes will bear interest at the per annum rate of 3-Month LIBOR plus a margin equal to 2.3575% (the “Floating Rate”), payable quarterly on February 17, May 17, August 17 and November 17. Interest payments in respect of Interest Payment Periods will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but not including, the next succeeding Interest Payment Date or the Maturity Date, as the case may be; provided, however, that the amount of interest payable for the first Interest Payment Period shall be determined from and including May 17, 2021. The amount of interest payable will be computed on the basis of a 360-day year and the actual number of days elapsed in each quarterly Interest Payment Period. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one-hundred-thousandth of a percentage point. If any Interest Payment Date is not a Business Day, then the Interest Payment Date shall be the immediately succeeding Business Day, except that if such Business Day is in the next succeeding calendar month then such Interest Payment Date will be the immediately preceding Business Day. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name this Subordinated Note is registered at the close of business on the day next preceding the Interest Payment Date; provided, that in the event the Subordinated Notes will not continue to remain in book-entry form or are not in the form of a Global Certificate, the record date for each Interest Payment Date shall be the first day of the month in which such Interest Payment Date occurs (in each case, the applicable “Record Date”). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date, and may be paid to the Person in whose name this Subordinated Note is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Subordinated Notes not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Subordinated Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of (and premium, if any) and the interest (including any compounded interest thereon) on this Subordinated Note shall be payable at the office or agency of the Trustee maintained for that purpose in the United States, in any coin or currency of the United States of America which at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the registered Holder at such address as shall appear in the Security Register.

 

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The Indebtedness evidenced by this Subordinated Note is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Subordinated Note is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Subordinated Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each Holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

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

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

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

Dated: August 11, 2021

 

LINCOLN NATIONAL CORPORATION
By:  

                              

  Name:
  Title:

 

Attest:

 

Name:
Title:

This is one of the Securities referred to in the within mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee
By:  

                          

  Authorized Officer

 

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[REVERSE OF NOTE]

This Note is one of a duly authorized issue of securities of the Company (herein called the “Subordinated Notes”), issued and to be issued in one or more series under a Subordinated Indenture, dated as of ___, 2021 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as supplemented by a First Supplemental Subordinated Indenture, dated as of ___, 2021 (the “First Supplemental Subordinated Indenture” and the Base Indenture as so supplemented, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Subordinated Notes, and of the terms upon which the Subordinated Notes are, and are to be, authenticated and delivered. This Subordinated Note is one of the series designated on the face hereof, limited in aggregate principal amount to $__________.

All terms used in this Subordinated Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

The Company shall have the right, at its option, to redeem the Subordinated Notes for cash:

(a) in whole at any time or in part from time to time on or after August 11, 2026, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; provided that if the Subordinated Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Subordinated Notes (excluding any Subordinated Notes held by the Company or any of its Affiliates) remains Outstanding after giving effect to such redemption;

(b) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Tax Event or a Regulatory Capital Event, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; or

(c) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to 102% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date.

Notwithstanding the foregoing, the Company may not redeem the Subordinated Notes unless all accrued and unpaid interest, including deferred interest (and compounded interest thereon), has been paid in full on all Outstanding Subordinated Notes for all Interest Payment Periods ending on or before the Redemption Date.

 

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The Company will prepare and mail a notice of redemption to each Holder of Subordinated Notes to be redeemed by first-class mail at least 15 but not more than 60 days prior to the date fixed for redemption. On and after a Redemption Date, interest will cease to accrue on the Subordinated Notes called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest (including any compounded interest thereon)). On or before a Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest (including any compounded interest thereon) on the Subordinated Notes to be redeemed on that date. If less than all of the Subordinated Notes are to be redeemed, the Subordinated Notes to be redeemed shall be selected by the Trustee by lot; provided that, to the extent the Subordinated Notes to be redeemed are represented by a Global Certificate, such Subordinated Notes shall be selected in accordance with the procedures of DTC.

The Subordinated Notes are not entitled to the benefit of any sinking fund.

If an Event of Default with respect to Subordinated Notes of this series shall occur and be continuing, the principal of the Subordinated Notes of this series may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.

The Indenture contains provisions for satisfaction, discharge and defeasance at any time of the entire Indebtedness of this Subordinated Note upon compliance by the Company with certain conditions set forth in the Indenture.

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

So long as no Event of Default with respect to this Subordinated Note has occurred or is continuing, the Company shall have the right at any time during the term of this Subordinated Note to defer payment of interest on this Subordinated Note for one or more consecutive Interest Periods that do not exceed five years for any single Deferral Period, during which the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid; provided, however, that no Deferral Period shall extend beyond the Maturity Date or the earlier accelerated maturity date arising from an Event of Default or redemption of this Subordinated Note. Upon the termination of any Deferral Period and upon the payment of all deferred interest then due, the Company may elect to begin a new Deferral Period, subject to the above requirements.

 

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So long as any Subordinated Notes of this series remain outstanding, if the Company has given notice of its election to defer interest payments on the Subordinated Notes but the related Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to, (i) declare or pay any dividends or other distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company’s Capital Stock, (ii) make any payment of principal of, or interest or premium, if any, on or repay, purchase or redeem any debt securities of the Company that rank upon the Company’s liquidation on a parity with this Subordinated Note or junior to this Subordinated Note or (iii) make any guarantee payments regarding any guarantee issued by the Company of securities of any Subsidiary if the guarantee ranks upon the Company’s liquidation on a parity with or junior to this Subordinated Note (other than (a) any purchase, redemption or other acquisition of shares of its Capital Stock in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of its employees, officers, directors, consultants or independent contractors, (2) the satisfaction of the Company’s obligations pursuant to any contract entered into prior to the beginning of the applicable Deferral Period, (3) a dividend reinvestment or shareholder purchase plan, or (4) the issuance of shares of the Company’s Capital Stock, or securities convertible into or exercisable for such shares, as consideration in an acquisition transaction entered into prior to the applicable Deferral Period, (b) any exchange, redemption or conversion of any class or series of the Company’s Capital Stock, or the Capital Stock of one of its Subsidiaries, for any other class or series of its Capital Stock, or of any class or series of its Indebtedness for any class or series of its Capital Stock, (c) any purchase of fractional interests in shares of the Company’s Capital Stock pursuant to the conversion or exchange provisions of such shares or the securities being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, stock or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto, (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, or (f) (1) any payment of current or deferred interest on Parity Securities that is made pro rata to the amounts due on such Parity Securities (including the Notes), and (2) any payments of principal or current or deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities).

The Company shall give written notice of its election to commence or continue any Deferral Period to the Trustee and the Holders of all Securities of this series then Outstanding at least five days (in the case of the Trustee) or fifteen days (in the case of the Holders) and not more than 60 days, in each case, before the next Interest Payment Date. Such notice shall be given to the Trustee and the Holder of this Security at such Holder’s address appearing in the Security Register by first-class mail, postage prepaid (or, as long as the Notes are held through DTC, transmitted in accordance with applicable procedures of DTC).

Except as provided in the immediately preceding paragraph and Article XI of the First Supplemental Subordinated Indenture, no reference herein to the Indenture and no provision of this Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Subordinated Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

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As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Subordinated Note is registrable in the Securities Register, upon surrender of this Subordinated Note for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Base Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Subordinated Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

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

The Subordinated Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Global Security is exchangeable for Subordinated Notes in definitive form only under certain limited circumstances set forth in the Indenture. Subordinated Notes so issued are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Base Indenture and subject to certain limitations therein set forth, Subordinated Notes are exchangeable for a like aggregate principal amount of Subordinated Notes of a different authorized denomination, as requested by the Holder surrendering the same.

No recourse shall be had for the payment of the principal of or the interest on this Subordinated Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.

The Company agrees and, by its acceptance of this Subordinated Note or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Subordinated Note agrees to treat this Subordinated Note as Indebtedness for United States federal, state and local tax purposes.

THE INDENTURE AND THIS SUBORDINATED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.

 

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ARTICLE X

ORIGINAL ISSUE OF SUBORDINATED NOTES

Section 10.1 Original Issue of Subordinated Notes.

Subordinated Notes in the aggregate principal amount not to exceed $562,034,000, except as provided in Section 2.1(b) hereof, may, upon execution of this First Supplemental Subordinated Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Subordinated Notes to or upon the written order of the Company, signed by an officer of the Company, without any further action by the Company.

The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice, if any specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of the year and (ii) such other specific information relating to any such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.

ARTICLE XI

[RESERVED]

ARTICLE XII

DEFEASANCE OF CERTAIN COVENANTS

Section 12.1 Defeasance.

The provisions of Article XIV of the Base Indenture shall apply to the Subordinated Notes.

ARTICLE XIII

[RESERVED]

 

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ARTICLE XIV

HOLDERS’ MEETINGS

Section 14.1 Purposes of Meetings.

A meeting of Holders of any or all series may be called at any time and from time to time pursuant to the provisions of this Article XIV for any of the following purposes:

(a) to give any notice to the Company or to the Trustee for such series, or to give any directions to the Trustee for such series, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article V of the Base Indenture;

(b) to remove the Trustee for such series and appoint a successor Trustee pursuant to the provisions of Article VI of the Base Indenture;

(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.2 of the Base Indenture; or

(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Outstanding Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.

Section 14.2 Call of Meetings by Trustee.

The Trustee for any series may at any time call a meeting of Holders of such series to take any action specified in Section 14.1 hereof, to be held at such time or times and at such place or places as the Trustee for such series shall determine. Notice of every meeting of the Holders of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to Holders of such series in the manner and to the extent provided in Section 1.06 of the Base Indenture. Such notice shall be given not less than ten days nor more than ninety days prior to the date fixed for the meeting.

Section 14.3 Call of Meetings by Company or Holders.

In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 20% in aggregate principal amount of the Outstanding Securities of a series or of all series, as the case may be, shall have requested the Trustee for such series to call a meeting of Holders of any or all such series by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within ten days after the receipt of such request, then the Company or such Holders may determine the time or times and the place or places for such meetings and may call such meetings to take any action authorized in Section 14.1 hereof, by giving notice thereof as provided in Section 14.2 hereof.

Section 14.4 Qualifications for Voting.

To be entitled to vote at any meeting of Holders a Person shall be (a) a Holder of a Security of the series with respect to which such meeting is being held or (b) a Person appointed by an instrument in writing as agent or proxy by such Holder. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee for the series with respect to which such meeting is being held and its counsel and any representatives of the Company and its counsel.

 

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Section 14.5 Regulations.

Notwithstanding any other provisions of this Indenture, the Trustee for any series may make such reasonable regulations as it may deem advisable for any meeting of Holders of such series, in regard to proof of the holding of Securities of such series and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.

The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of such series as provided in Section 14.3 hereof, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by a majority vote of the meeting.

Subject to the provisos in the definition of “Outstanding,” at any meeting each Holder of a Security of the series with respect to which such meeting is being held or proxy therefor shall be entitled to one vote for each $1,000 principal amount, as applicable (or such other amount as shall be specified pursuant to Section 3.01 of the Base Indenture) of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Outstanding Debt.

Securities of such series held by him or instruments in writing duly designating him as the Person to vote on behalf of Holders of Securities of such series. Any meeting of Holders with respect to which a meeting was duly called pursuant to the provisions of Section 14.2 or 14.3 hereof may be adjourned from time to time by a majority of such Holders present representing a majority of votes eligible to be cast at such meeting of the series with respect to which such meeting is being held and the meeting may be held as so adjourned without further notice.

Section 14.6 Voting.

The vote upon any resolution submitted to any meeting of Holders with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be taken, and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was transmitted as provided in Section 14.2 hereof. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.

 

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Any record so signed and verified shall be conclusive evidence of the matters therein stated.

ARTICLE XV

MISCELLANEOUS

Section 15.1 Ratification of Indenture.

The Base Indenture as supplemented by this First Supplemental Subordinated Indenture, is in all respects ratified and confirmed, and this First Supplemental Subordinated Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.

Section 15.2 [Reserved]

Section 15.3 Trustee Not Responsible for Recitals; Concerning the Calculation Agent.

The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Calculation Agent shall have all of the rights, immunities, and protections accorded the Trustee under the Indenture.

Section 15.4 Governing Law.

This First Supplemental Subordinated Indenture and each Subordinated Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State applicable to contracts made and to be performed entirely within said State.

Section 15.5 Separability.

In case any one or more of the provisions contained in this First Supplemental Subordinated Indenture or in the Subordinated Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Subordinated Indenture or of the Subordinated Notes, but this First Supplemental Subordinated Indenture and the Subordinated Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

Section 15.6 Counterparts.

This First Supplemental Indenture may be executed (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Subordinated Indenture to be duly executed by their respective officers thereunto duly authorized, on the date or dates indicated in the acknowledgments and as of the day and year first above written.

 

LINCOLN NATIONAL CORPORATION, as Issuer
By:  

/s/ Randal J. Freitag

  Name:   Randal J. Freitag
  Title:   Executive Vice President and Chief Financial Officer
By:  

/s/ Christopher A. Giovanni

  Name:   Christopher A. Giovanni
  Title:   Senior Vice President and Treasurer
THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ Latoya S Elvin

  Name:   Latoya S Elvin
  Title:   Vice President

 

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Exhibit 4.5

 

 

SECOND SUPPLEMENTAL SUBORDINATED INDENTURE

DATED AS OF AUGUST 11, 2021

BETWEEN

LINCOLN NATIONAL CORPORATION

AS ISSUER

AND

THE BANK OF NEW YORK MELLON,

AS TRUSTEE

 

 


TABLE OF CONTENTS

 

     Page  

ARTICLE I

  

DEFINITIONS

  

Section 1.1

  Definition of Terms      2  

ARTICLE II

  

GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED NOTES

  

Section 2.1

  Designation and Principal Amount      8  

Section 2.2

  Maturity      9  

Section 2.3

  Form and Payment      9  

Section 2.4

  Interest      9  

ARTICLE III

  

REDEMPTION OF THE SUBORDINATED NOTES

  

Section 3.1

  Optional Redemption      12  

Section 3.2

  No Sinking Fund      13  

ARTICLE IV

  

OPTIONAL DEFERRAL OF INTEREST AND TRIGGER EVENTS

  

Section 4.1

  Optional Deferral of Interest      13  

Section 4.2

  Notices of Deferral      14  

ARTICLE V

  

EVENTS OF DEFAULT

  

Section 5.1

  Events of Default      14  

ARTICLE VI

  

COVENANTS

  

Section 6.1

  Limitation on Payment of Current Interest when Optionally Deferred Interest is Outstanding      22  

Section 6.2

  [Reserved]      23  

Section 6.3

  Obligation to Effect Certain Sales of Qualifying Securities      24  

Section 6.4

  Payment of Expenses      25  

Section 6.5

  Payment Upon Resignation or Removal      26  

 

-i-


ARTICLE VII

  

SUBORDINATION

  

Section 7.1

  Agreement to Subordinate      26  

Section 7.2

  Liquidation; Dissolution; Bankruptcy      26  

Section 7.3

  Default on Senior Indebtedness      27  

Section 7.4

  When Distribution Must Be Paid Over      27  

Section 7.5

  Subrogation      27  

Section 7.6

  Relative Rights      28  

Section 7.7

  Rights of the Trustee; Holders of Senior Indebtedness      28  

Section 7.8

  Subordination May Not Be Impaired      29  

Section 7.9

  Distribution      29  

Section 7.10

  Authorization to Effect Subordination      29  

ARTICLE VIII

  

[RESERVED]

  

Section 8.1

  [Reserved]      29  

ARTICLE IX

  

FORM OF SUBORDINATED NOTE

  

Section 9.1

  Form of Subordinated Note      30  

ARTICLE X

  

ORIGINAL ISSUE OF SUBORDINATED NOTES

  

Section 10.1

  Original Issue of Subordinated Notes      39  

ARTICLE XI

  

[RESERVED]

  

Section 11.1

  [Reserved]      40  

ARTICLE XII

  

DEFEASANCE OF CERTAIN COVENANTS

  

Section 12.1

  Termination of Company’s Obligations Under Certain Covenants      40  

Section 12.2

  Application of Trust Money      42  

Section 12.3

  Repayment to Company      42  

Section 12.4

  Indemnity for Government Obligations      42  

Section 12.5

  Supplemental Indentures Without Consent of Holders      42  

ARTICLE XIII

  

[RESERVED]

  

Section 13.1

  [Reserved]      42  

 

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ARTICLE XIV

  

HOLDERS’ MEETINGS

  

Section 14.1

  Purposes of Meetings      44  

Section 14.2

  Call of Meetings by Trustee      44  

Section 14.3

  Call of Meetings by Company or Holders      45  

Section 14.4

  Qualifications for Voting      45  

Section 14.5

  Regulations      45  

Section 14.6

  Voting      46  

ARTICLE XV

  

MISCELLANEOUS

  

Section 15.1

  Ratification of Indenture      46  

Section 15.2

  [Reserved]      46  

Section 15.3

  Trustee Not Responsible for Recitals; Concerning the Calculation Agent      47  

Section 15.4

  Governing Law      47  

Section 15.5

  Separability      47  

Section 15.6

  Counterparts      47  

 

 

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SECOND SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of August 11, 2021 (the “Second Supplemental Subordinated Indenture”), between Lincoln National Corporation, a corporation duly organized and existing under the laws of the State of Indiana (the “Company”), and The Bank of New York Mellon , as trustee (the “Trustee”), supplementing the Subordinated Indenture, dated as of August 11, 2021 (the “Base Indenture”).

WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide for the future issuance of the Company’s subordinated notes, debentures or other evidence of Indebtedness (the “Securities”), to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture;

WHEREAS, pursuant to a Prospectus dated August 5, 2021, the Company offered to exchange any and all of certain capital securities for a new series of the Company’s Securities to be known as its Floating Rate Subordinated Notes due 2067 (the “Subordinated Notes”), which Securities shall be in the form of subordinated notes issued by the Company;

WHEREAS, pursuant to the terms of the Base Indenture and this Second Supplemental Subordinated Indenture (together, the “Indenture”), the Company desires to provide for the establishment of the Subordinated Notes with specific terms and provisions, the form and substance of such Subordinated Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Second Supplemental Subordinated Indenture, and all requirements necessary to make this Second Supplemental Subordinated Indenture a valid instrument in accordance with its terms, and to make the Subordinated Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done and performed, and the execution and delivery of this Second Supplemental Subordinated Indenture has been duly authorized in all respects:

NOW THEREFORE, in consideration of the tender and acceptance of the Subordinated Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Subordinated Notes and the terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows:


ARTICLE I

DEFINITIONS

Section 1.1 Definition of Terms.

Unless the context otherwise requires:

(a) a term not defined herein that is defined in the Base Indenture has the same meaning when used in this Second Supplemental Subordinated Indenture;

(b) the definition of any term in this Second Supplemental Subordinated Indenture that is also defined in the Base Indenture shall supersede the definition of such term in the Base Indenture;

(c) a term defined anywhere in this Second Supplemental Subordinated Indenture has the same meaning throughout;

(d) the singular includes the plural and vice versa;

(e) headings are for convenience of reference only and do not affect interpretation;

(f) the following terms have the meanings given to them in this Section 1.1(e):

“Benchmark” means, initially, 3-Month LIBOR; provided, that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to 3-Month LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.

“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by Company or its designee as of the Benchmark Replacement Date:

(a) the sum of: (i) the ISDA Fallback Rate and (ii) the Benchmark Replacement Adjustment; or

(b) the sum of: (i) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (ii) the Benchmark Replacement Adjustment.

“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by Company or its designee as of the Benchmark Replacement Date:

(a) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or

(b) the spread adjustment (which may be a positive or negative value or zero) that has been selected by Company or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated floating rate notes at such time.

 

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“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions or interpretations of interest payment period, the timing and frequency of determining rates and making payments of interest, the rounding of amounts or tenors, and other administrative matters) that the Company or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company or its designee decides that adoption of any portion of such market practice is not administratively feasible or if Company or its designee determines that no market practice for use of the benchmark replacement exists, in such other manner as Company or its designee determines is reasonably practicable).

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark (including any daily published component used in the calculation thereof):

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or

(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the date of the public statement or publication of information referenced therein.

For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):

(a) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component);

(b) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or

 

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(c) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.

“Bloomberg screen HP US0003M” means the display on Bloomberg screen HP US0003M or any successor service or page for the purpose of displaying the London interbank offered rates of major banks.

“Business Day” means any day which is not a Saturday, a Sunday, a legal holiday or a day on which banking institutions or trust companies located in New York City are authorized or obligated by law or executive order to close.

“Calculation Agent” means, initially, the Trustee.

“Capital Regulator” means the governmental agency or instrumentality, if any, that has group-wide oversight of the Company’s regulatory capital.

“Company” shall have the meaning set forth in the preamble of this Second Supplemental Subordinated Indenture.

“Coupon Rate” means the Floating Rate.

“Deferral Period” means the period commencing on an Interest Payment Date with respect to which the Company defers interest pursuant to Section 4.1 and ending on the earlier of (a) the fifth anniversary of that Interest Payment Date and (b) the next Interest Payment Date on which the Company has paid all deferred and unpaid amounts (including compounded interest on such deferred amounts) and all other accrued interest on the Subordinated Notes.

“Depositary,” with respect to the Subordinated Notes, means The Depository Trust Company or any successor clearing agency.

“Floating Rate” means the rate of interest on the Subordinated Notes.

“Indenture” has the meaning set forth in the preamble of this Second Supplemental Subordinated Indenture.

 

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“Interest Payment Date” means each January 20, April 20, July 20 and October 20, commencing October 20, 2021; provided that if any such day from and after the first Interest Payment Date is not a Business Day, then the Interest Payment Date shall be the next succeeding day that is a Business Day, except that if such Business Day is in the next succeeding calendar month, then such Interest Payment Date will be the immediately preceding Business Day.

“Interest Payment Period” means the quarterly period from and including an Interest Payment Date to but not including the next succeeding Interest Payment Date, except for the first Interest Payment Period which shall be determined from and including July 20, 2021 (subject to Section 2.1(b)).

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.

“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.

“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.

“LIBOR Determination Date” means 11:00 a.m. (London time) on the second London Banking Day immediately preceding the first day of an Interest Payment Period.

“London Banking Day” means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.

“Maturity Date” means the date on which the Subordinated Notes mature as specified in Section 2.2 hereof and on which the principal shall be due and payable together with all accrued and unpaid interest thereon including all compounded interest thereon.

“Parity Securities” means Indebtedness of the Company that by its terms ranks in right of payment upon liquidation of the Company on a parity with the Subordinated Notes, and includes the Subordinated Notes.

 

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“Rating Agency Event” means that any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act that then publishes a rating for the Company (a “rating agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Subordinated Notes, which amendment, clarification or change results in:

(a) the shortening of the length of time the Subordinated Notes are assigned a particular level of equity credit by that rating agency compared to the length of time they would have been assigned that level of equity credit by that rating agency or its predecessor on the date hereof, or

(b) the lowering of the equity credit (including up to a lesser amount) assigned to the Subordinated Notes by that rating agency compared to the equity credit assigned by that rating agency or its predecessor on the date hereof.

“Record Date” has the meaning provided in Section 2.4(f).

“Reference Time” with respect to any determination of the Benchmark means (i) if the Benchmark is 3-Month LIBOR, 11:00 a.m. (London time) on the particular Interest Determination Date, and (ii) if the Benchmark is not 3-Month LIBOR, the time determined by the Company or its designee in accordance with the Benchmark Replacement Conforming Changes.

“Registered Security” means any Security in the form established pursuant to Section 9.1 hereof which is registered as to principal and interest in the Securities Register.

“Regulatory Capital Event” means the Company’s good faith determination that, as a result of:

(a) any amendment to, or change in, the laws, rules or regulations of the United States or any political subdivision of or in the United States or any other governmental agency or instrumentality as may then have group-wide oversight of the Company’s regulatory capital that is enacted or becomes effective after the date hereof;

(b) any proposed amendment to, or change in, those laws, rules or regulations that is announced or becomes effective after the date hereof; or

(c) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws, rules or regulations that is announced after the date hereof,

there is more than an insubstantial risk that the Company would not be entitled to treat an amount equal to the full principal amount of the Subordinated Notes outstanding from time to time as “Tier 2 Capital” (or a substantially similar concept) for purposes of the capital adequacy rules of any Capital Regulator to which the Company is or will be subject; provided that the proposal or adoption of any criterion:

(a) that is substantially the same as the corresponding criterion in the capital adequacy rules of the Board of Governors of the Federal Reserve System applicable to bank holding companies as of the date hereof, or

 

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(b) that would result in the full principal amount of the Subordinated Notes outstanding from time to time not qualifying as “Tier 2 Capital” (or a substantially similar concept) for purposes of the capital adequacy rules of the Capital Regulator solely because the Company may redeem the Subordinated Notes at its option upon the occurrence of a Rating Agency Event will not constitute a Regulatory Capital Event.

“Second Supplemental Subordinated Indenture” has the meaning provided in the preamble hereto.

“Securities” has the meaning set forth in the recitals of this Second Supplemental Subordinated Indenture.

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

“Subordinated Notes” shall have the meaning set forth in the recitals of this Second Supplemental Subordinated Indenture.

“Tax Event” means the receipt by the Company of an opinion of counsel experienced in such matters to the effect that, as a result of any:

(a) amendment to or change (including any announced prospective change) in the laws or regulations of the United States or any political subdivision or taxing authority of or in the United States that is enacted or effective on or after the date hereof;

(b) official administrative decision or judicial decision or administrative action or other official pronouncement (including a private letter ruling, technical advice memorandum or other similar pronouncement) by any court, government agency or regulatory authority interpreting or applying those laws or regulations that is announced on or after the date hereof; or

(c) threatened challenge asserted in connection with an audit of the Company or any of its Subsidiaries, or a threatened challenge asserted in writing against any taxpayer that has raised capital through the issuance of securities that are substantially similar to the Subordinated Notes, which challenge is asserted against the Company or becomes publicly known on or after the date hereof,

there is more than an insubstantial increase in the risk that interest accruing or payable by the Company on the Subordinated Notes is not, or at any time subsequent to the Company’s receipt of such opinion will not be, deductible by the Company, in whole or in part, for U.S. federal income tax purposes.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

“3-Month LIBOR,” with respect to an Interest Payment Period, means the rate (expressed as a percentage per year) for deposits in U.S. dollars for a three-month period that appears on Bloomberg screen HP US0003M as of the relevant LIBOR Determination Date.

 

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If 3-Month LIBOR cannot be determined for an Interest Payment Period as described above, the Company will select four major banks in the London interbank market. The Company will request that the principal London offices of those four selected banks provide their offered quotations to prime banks in the London interbank market at approximately 11:00 a.m., London time, on the LIBOR Determination Date for such Interest Payment Period to the Company and the Calculation Agent, and if the Calculation Agent is then not the Trustee, to the Trustee. These quotations will be for deposits in U.S. dollars for a three-month period. Offered quotations must be based on a principal amount equal to an amount that is representative of a single transaction in U.S. dollars in the market at the time.

If two or more quotations are provided, 3-Month LIBOR for such Interest Payment Period will be the arithmetic mean of the quotations. If fewer than two quotations are provided, the Company will select three offered rates quoted by three major banks in New York City on the LIBOR Determination Date for such Interest Payment Period. The rates quoted will be for loans in U.S. dollars for a three-month period. Rates quoted must be based on a principal amount equal to an amount that is representative of a single transaction in U.S. dollars in the market at the time. Subject to the immediately following paragraph, if fewer than three New York City banks selected by the Company are quoting rates, 3-Month LIBOR for the applicable Interest Payment Period will be the same as for the immediately preceding Interest Payment Period.

Notwithstanding anything to the contrary, if the Company or its designee determines on or prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining 3-Month LIBOR, then the Benchmark Replacement provisions set forth below under “Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable on the Subordinated Notes.

“Trustee” shall have the meaning set forth in the preamble of this Second Supplemental Subordinated Indenture.

ARTICLE II

GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED NOTES

Section 2.1 Designation and Principal Amount.

(a) There is hereby authorized a series of Securities designated the Floating Rate Subordinated Notes due 2067, which shall be in the form of subordinated notes issued by the Company under the Indenture, limited in aggregate principal amount to $432,743,000 which amount shall be as set forth in any written order of the Company for the authentication and delivery of Subordinated Notes pursuant to Section 3.04 of the Base Indenture.

(b) The Company may, from time to time, subject to compliance with any other applicable provisions of this Second Supplemental Subordinated Indenture but without the consent of the Holders, create and issue pursuant to this Second Supplemental Subordinated Indenture an unlimited principal amount of additional Securities (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding

 

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Securities, except that any such additional Securities (i) may have a different issue date and issue price from other outstanding Securities and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on other outstanding Securities. Such additional Securities shall constitute part of the same series of Securities hereunder, unless any such adjustment pursuant to this Section 2.1(b) shall cause such additional Securities to constitute, as determined pursuant to an opinion of counsel, a different class of securities than the original series of Securities for U.S. federal income tax purposes.

Section 2.2 Maturity.

The Maturity Date will be April 20, 2067. Notwithstanding the preceding sentence, in the event that the Maturity Date is not a Business Day, then the Maturity Date will be the next succeeding day which is a Business Day, except that if such Business Day is in the next succeeding calendar month, then the Maturity Date will be the immediately preceding day which is a Business Day.

Section 2.3 Form and Payment.

Except as provided in Section 2.4, the Subordinated Notes shall be issued in fully registered definitive form as one or more Global Securities without interest coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof, bearing identical terms. Principal and interest on the Subordinated Notes issued in certificated form will be payable, the transfer of such Subordinated Notes will be registrable and such Subordinated Notes will be exchangeable for Subordinated Notes bearing identical terms and provisions at the office or agency of the Trustee; provided, however, that payment of interest may be made at the option of the Company by check mailed to the Holder at such address as shall appear in the Security Register.

Section 2.4 Interest.

(a) The Subordinated Notes will bear interest at the per annum rate of the Benchmark plus a margin equal to 2.0400% (the “Floating Rate”), payable quarterly on each Interest Payment Date in respect of an Interest Payment Period, in each case subject to the provisions set forth under Section 2.5.

(b) The Calculation Agent will calculate the applicable Floating Rate and the amount of interest payable on each quarterly Interest Payment Date relating to an Interest Payment Period. Promptly upon such determination, the Calculation Agent will notify the Company and, if the Trustee is not then serving as the Calculation Agent, the Trustee, of the Floating Rate for the new quarterly Interest Payment Period. The Floating Rate determined by the Calculation Agent, absent manifest error, will be binding and conclusive on the Company and the holders of the Subordinated Notes and the Trustee. In the event that any Person acting as Calculation Agent shall be unable or unwilling to act, or that such Person shall fail to duly calculate the interest rate for any Interest Payment Period, or the Company proposes to remove such Person as Calculation Agent, the Company shall appoint a successor Calculation Agent (which may be the Company or one of its Affiliates).

 

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(c) Interest payments will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but not including, the next succeeding Interest Payment Date, the date of redemption or the Maturity Date, as the case may be; provided, however, that the amount of interest payable for the first Interest Payment Period shall be determined from and including July 20, 2021. The amount of interest payable will be computed on the basis of a 360-day year and the actual number of days elapsed in each quarterly Interest Payment Period. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one-hundred-thousandth of a percentage point.

(d) Otherwise than in connection with the maturity or early redemption of the Subordinated Notes or the payment in whole or in part of deferred or overdue interest on the Subordinated Notes, interest on the Subordinated Notes may be paid only on an Interest Payment Date.

(e) To the extent permitted by applicable law, interest not paid when due hereunder, including, without limitation, all interest deferred pursuant to Section 4.1, will accrue and compound quarterly at the applicable Coupon Rate on each Interest Payment Date until paid. References to “interest” in the Base Indenture and this Second Supplemental Subordinated Indenture include references to such compounded interest.

(f) The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name the Subordinated Notes is registered at the close of business on the day next preceding the Interest Payment Date; provided, that in the event the Subordinated Notes will not continue to remain in book-entry form or are not in the form of a Global Certificate, the record date for each Interest Payment Date shall be the first day of the month in which such Interest Payment Date occurs (in each case, the applicable “Record Date”). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such Record Date, and may be paid to the Person in whose name the Subordinated Notes is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Subordinated Notes not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Subordinated Notes may be listed, and upon such notice as may be required by such exchange.

Section 2.5 Effect of Benchmark Transition Event

(a) Benchmark Replacement. If the Company or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Subordinated Notes in respect of such determination on such date and all determinations on all subsequent dates.

 

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(b) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Company or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time without the consent of the Holders of the Subordinated Notes or the Trustee.

(c) Decisions and Determinations. Any determination, decision or election that may be made by the Company or its designee pursuant to the Benchmark Transition provisions described herein, including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection:

(i) will be conclusive and binding absent manifest error;

(ii) if made by the Company, will be made in the Company’s sole discretion;

(iii) if made by the Company’s designee, will be made after consultation with the Company, and such designee will not make any such determination, decision or election to which the Company objects; and

(iv) notwithstanding anything to the contrary herein or in the Subordinated Notes, shall become effective without consent from the Holders of the Subordinated Notes or any other party.

(d) Any determination, decision or election pursuant to the Benchmark Replacement provisions set forth in this Section 2.5 shall be made by the Company or its designee (which may be the Company’s Affiliate) on the basis described above, and in no event shall the Trustee, any Paying Agent or the Calculation Agent be responsible for making any such determination, decision or election. The Company may, in its sole discretion, designate any Affiliate of the Company or any other person to make one or more determinations, decisions or elections on a temporary or permanent basis, and the Company may, in its sole discretion, revoke any such designation. Any person so designated in accordance with the immediately preceding sentence will be a “designee” for purposes of these provisions addressing the effect of a Benchmark Transition Event for so long as such designation remains in effect.

(e) None of the Trustee, any Paying Agent or the Calculation Agent shall be under any obligation to (i) monitor, determine or verify the unavailability or cessation of 3-Month LIBOR, or whether or when there has occurred, or to give notice to any other Person of the occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been satisfied, (iii) select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement index, or (iv) determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing, including, but not limited to, adjustments as to any alternative spread thereon, the business day convention, interest determination dates or any other relevant

 

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methodology applicable to such substitute or successor Benchmark. In connection with the foregoing, each of the Trustee, any Paying Agent and the Calculation Agent shall be entitled to conclusively rely on any determinations made by the Company or its designee without independent investigation, and none will have any liability for actions taken at the direction of the Company in connection therewith.

(f) None of the Trustee, any Paying Agent or the Calculation Agent shall be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Second Supplemental Subordinated Indenture or the Base Indenture as a result of the unavailability of 3-Month LIBOR or other applicable Benchmark, including as a result of any failure, inability, delay, error or inaccuracy on the part of any other Person in providing any direction, instruction, notice or information required or contemplated by the terms of this Second Supplemental Indenture or the Base Indenture and reasonably required for the performance of such duties. None of the Trustee, Paying Agent or Calculation Agent shall be responsible or liable for the actions of the Company or omissions or for those of the Company’s designee, or for any failure or delay in the performance by the Company or its designee, nor shall any of the Trustee, Paying Agent or Calculation Agent be under any obligation to oversee or monitor the performance of the Company or that of the Company’s designee.

ARTICLE III

REDEMPTION OF THE SUBORDINATED NOTES

Section 3.1 Optional Redemption.

The Subordinated Notes shall be redeemable in accordance with the procedures set forth in Article XI of the Base Indenture:

(a) The Company shall have the right, at its option, to redeem the Subordinated Notes for cash,

(i) in whole at any time or in part, from time to time, on or after August 11, 2026, at a redemption price equal to the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; provided that if the Subordinated Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Subordinated Notes, excluding any Subordinated Notes held by the Company or any of its Affiliates, must remain Outstanding after giving effect to such redemption;

(ii) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Tax Event or a Regulatory Capital Event at a redemption price equal to the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; or

 

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(iii) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Rating Agency Event at a redemption price equal to 102% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date;

provided, in each case, that all accrued and unpaid interest, including deferred interest (and compounded interest thereon) shall have been paid in full on all Outstanding Subordinated Notes for all Interest Payment Periods ending on or before the Redemption Date. In the event the Subordinated Notes are treated as “Tier 2 Capital” (or a substantially similar concept) under the capital rules of any Capital Regulator applicable to the Company, any redemption of the Subordinated Notes shall be subject to the Company’s receipt of any required prior approval from such Capital Regulator and to the satisfaction of any conditions set forth in those capital rules and any other applicable regulations of any other Capital Regulator that are applicable to the Company’s redemption of the Subordinated Notes.

(b) In no event, shall the Trustee be responsible for monitoring the ratings of the Subordinated Notes or an occurrence of a Rating Agency Event.

Section 3.2 No Sinking Fund.

The Subordinated Notes are not entitled to the benefit of any sinking fund.

ARTICLE IV

OPTIONAL DEFERRAL OF INTEREST

Section 4.1 Optional Deferral of Interest.

(a) So long as no Event of Default with respect to the Subordinated Notes has occurred or is continuing, the Company shall have the right to elect, at any time and from time to time, to defer the payment of interest on the Subordinated Notes for one or more consecutive Interest Payment Periods that do not exceed five years for any single Deferral Period; provided that no Deferral Period shall extend beyond the Maturity Date, any earlier accelerated maturity date arising from an Event of Default or any other earlier redemption of the Subordinated Notes. If the Company has paid all deferred interest (including compounded interest thereon) on the Subordinated Notes, the Company shall have the right to elect to begin a new Deferral Period pursuant to this Section 4.1.

(b) At the end of any Deferral Period, the Company shall pay all accrued and unpaid deferred interest (including compounded interest thereon) on the Subordinated Notes to the Persons in whose names the Subordinated Notes are registered in the Securities Register at the close of business on the Record Date with respect to the Interest Payment Date at the end of such Deferral Period.

 

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Section 4.2 Notices of Deferral.

The Company shall provide a notice to Holders of Subordinated Notes of the commencement or continuance of any Deferral Period no more than sixty and no fewer than five days prior to the relevant Interest Payment Date. The Company shall provide a notice to the Trustee of the commencement or continuance of any Deferral Period no more than sixty and no fewer than fifteen days prior to the relevant Interest Payment Date. Such notice of deferral, once given, will be irrevocable and the deferral of payments on the related Interest Payment Date will be considered a deferral subject to Section 4.1 above.

ARTICLE V

EVENTS OF DEFAULT

Section 5.1 Events of Default.

(a) Section 5.01 of the Base Indenture shall apply to the Subordinated Notes.

(b) The Trustee shall provide to the Holders of the Subordinated Notes notice of any Event of Default or default with respect to the Subordinated Notes within 90 days after the actual knowledge of a Responsible Trust Officer of the Trustee of such Event of Default or default. However, except in the case of a default in payment on the Subordinated Notes, the Trustee will be protected in withholding the notice if its Responsible Trust Officers determine that withholding of the notice is in the interest of such Holders.

(c) The Trustee shall have no right or obligation under the Indenture or otherwise to exercise any remedies on behalf of any Holders of the Subordinated Notes pursuant to the Indenture in connection with any default, unless such remedies are available under the Indenture and the Trustee is directed to exercise such remedies pursuant to and subject to the conditions of Section 5.12 of the Base Indenture, provided, however, that this provision shall not affect the rights of the Trustee with respect to any Events of Default as set forth in Section 5.01 of the Base Indenture that may occur with respect to the Subordinated Notes. In connection with any such exercise of remedies the Trustee shall be entitled to the same immunities and protections and remedial rights (other than acceleration) as if such default were an Event of Default.

(d) For purposes of this Section 5.1, the term “default” means any of the following events:

(i) the failure to pay interest, including compounded interest, in full on any Subordinated Notes for a period of 30 days after the conclusion of a five-year period following the commencement of any Deferral Period if such Deferral Period has not ended prior to the conclusion of such five-year period;

(ii) the failure to pay principal of, or premium, if any, on the Subordinated Notes when due; or

(iii) failure to comply with any covenant contained in the Indenture or the Subordinated Notes.

 

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ARTICLE VI

COVENANTS

Section 6.1 Certain Restrictions During Optional Deferral Periods.

So long as any Subordinated Notes remain outstanding, (a) if the Company has given notice of its election to defer interest payments on the Subordinated Notes but the related Deferral Period has not yet commenced, or (b) a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to:

(i) declare or pay any dividends or other distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of Capital Stock of the Company;

(ii) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any of the Company’s debt securities that rank upon the Company’s liquidation on a parity with or junior to the Subordinated Notes; or

(iii) make any guarantee payments regarding any guarantee issued by the Company of securities of any Subsidiary if the guarantee ranks upon the Company’s liquidation on a parity with or junior to the Subordinated Notes;

provided, however, the restrictions in clauses (i), (ii) and (iii) above do not apply to:

(A) any purchase, redemption or other acquisition of shares of the Company’s Capital Stock by the Company in connection with:

(1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of its employees, officers, directors, consultants or independent contractors;

(2) the satisfaction of the Company’s obligations pursuant to any contract entered into prior to the beginning of the applicable Deferral Period;

(3) a dividend reinvestment or shareholder purchase plan; or

(4) the issuance of shares of the Company’s Capital Stock, or securities convertible into or exercisable for such Capital Stock, as consideration in an acquisition transaction, the definitive agreement for which is entered into prior to the applicable Deferral Period;

(B) any exchange, redemption or conversion of any class or series of the Company’s Capital Stock, or shares of the Capital Stock of one of its Subsidiaries, for any other class or series of the Company’s Capital Stock, or of any class or series of the Company’s Indebtedness for any class or series of the Company’s Capital Stock;

 

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(C) any purchase of fractional interests in shares of the Company’s Capital Stock pursuant to the conversion or exchange provisions of such shares or the securities being converted or exchanged;

(D) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, stock or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto;

(E) any dividend in the form of stock, warrants, options or other rights where the dividend stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock; or

(F) (i) any payment of current or deferred interest on Parity Securities that is made pro rata to the amounts due on such Parity Securities (including the Subordinated Notes) and (ii) any payments of principal or current or deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities.

For the avoidance of doubt, notwithstanding anything herein to the contrary, no terms of the Subordinated Notes will restrict in any manner the ability of any of the Subsidiaries to pay dividends to the Company or any other Subsidiaries or make any distributions to the Company or to any other Subsidiaries.

Section 6.2 [Reserved.]

Section 6.3 Payment of Expenses.

In connection with the offering, sale and issuance of the Subordinated Notes, the Company, in its capacity as borrower with respect to the Subordinated Notes, shall pay all costs and expenses relating to the offering, sale and issuance of the Subordinated Notes, including compensation of the Trustee under the Indenture in accordance with the provisions of Section 6.07 of the Base Indenture.

Section 6.4 Payment Upon Resignation or Removal.

Upon termination of this Second Supplemental Subordinated Indenture or the Base Indenture or the removal or resignation of the Trustee, the Company shall pay to the Trustee all amounts accrued to the date of such termination, removal or resignation.

ARTICLE VII

SUBORDINATION

Section 7.1 Subordination.

The subordination provisions of Article XIII of the Base Indenture shall apply to the Notes.

 

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ARTICLE VIII

[RESERVED]

ARTICLE IX

FORM OF SUBORDINATED NOTE

Section 9.1 Form of Subordinated Note.

The Subordinated Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the following forms:

(FORM OF FACE OF NOTES)

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

[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]

LINCOLN NATIONAL CORPORATION

Floating Rate Subordinated Notes

 

No. R-1    $__________
   CUSIP No. ____________

LINCOLN NATIONAL CORPORATION, a corporation organized and existing under the laws of Indiana (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________________________________________, or registered assigns, the principal sum of __________________________ dollars ($____________) on April 20, 2067 (the “Maturity Date”). Notwithstanding the preceding sentence, in the event that the Maturity

 

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Date is not a Business Day, then the Maturity Date will be the next succeeding day which is a Business Day, except if such Business Day is in the next succeeding calendar month then the Maturity Date will be the immediately preceding day which is a Business Day. The Subordinated Notes will bear interest at the per annum rate of 3-Month LIBOR plus a margin equal to 2.0400% (the “Floating Rate”), payable quarterly on January 20, April 20, July 20 and October 20. Interest payments in respect of Interest Payment Periods will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but not including, the next succeeding Interest Payment Date or the Maturity Date, as the case may be; provided, however, that the amount of interest payable for the first Interest Payment Period shall be determined from and including July 20, 2021. The amount of interest payable will be computed on the basis of a 360-day year and the actual number of days elapsed in each quarterly Interest Payment Period. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one-hundred-thousandth of a percentage point. If any Interest Payment Date is not a Business Day, then the Interest Payment Date shall be the immediately succeeding Business Day, except that if such Business Day is in the next succeeding calendar month then such Interest Payment Date will be the immediately preceding Business Day. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name this Subordinated Note is registered at the close of business on the day next preceding the Interest Payment Date; provided, that in the event the Subordinated Notes will not continue to remain in book-entry form or are not in the form of a Global Certificate, the record date for each Interest Payment Date shall be the first day of the month in which such Interest Payment Date occurs (in each case, the applicable “Record Date”). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date, and may be paid to the Person in whose name this Subordinated Note is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Subordinated Notes not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Subordinated Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of (and premium, if any) and the interest (including any compounded interest thereon) on this Subordinated Note shall be payable at the office or agency of the Trustee maintained for that purpose in the United States, in any coin or currency of the United States of America which at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the registered Holder at such address as shall appear in the Security Register.

 

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The Indebtedness evidenced by this Subordinated Note is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Subordinated Note is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Subordinated Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each Holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

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

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

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

Dated: August 11, 2021

 

LINCOLN NATIONAL CORPORATION
By:  

 

  Name:
  Title:

 

Attest:

 

Name:
Title:

This is one of the Securities referred to in the within mentioned Indenture.

 

THE BANK OF NEW YORK MELLON,
    as Trustee
By:  

 

  Authorized Officer

 

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[REVERSE OF NOTE]

This Note is one of a duly authorized issue of securities of the Company (herein called the “Subordinated Notes”), issued and to be issued in one or more series under a Subordinated Indenture, dated as of ___, 2021 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon (herein called the “Trustee,” which term includes any successor trustee under the Indenture), as supplemented by a Second Supplemental Subordinated Indenture, dated as of ___, 2021 (the “Second Supplemental Subordinated Indenture” and the Base Indenture as so supplemented, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Subordinated Notes, and of the terms upon which the Subordinated Notes are, and are to be, authenticated and delivered. This Subordinated Note is one of the series designated on the face hereof, limited in aggregate principal amount to $__________.

All terms used in this Subordinated Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

The Company shall have the right, at its option, to redeem the Subordinated Notes for cash:

(a) in whole at any time or in part from time to time on or after August 11, 2026, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; provided that if the Subordinated Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Subordinated Notes (excluding any Subordinated Notes held by the Company or any of its Affiliates) remains Outstanding after giving effect to such redemption;

(b) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Tax Event or a Regulatory Capital Event, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; or

(c) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to 102% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date.

Notwithstanding the foregoing, the Company may not redeem the Subordinated Notes unless all accrued and unpaid interest, including deferred interest (and compounded interest thereon), has been paid in full on all Outstanding Subordinated Notes for all Interest Payment Periods ending on or before the Redemption Date.

 

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The Company will prepare and mail a notice of redemption to each Holder of Subordinated Notes to be redeemed by first-class mail at least 15 but not more than 60 days prior to the date fixed for redemption. On and after a Redemption Date, interest will cease to accrue on the Subordinated Notes called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest (including any compounded interest thereon)). On or before a Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest (including any compounded interest thereon) on the Subordinated Notes to be redeemed on that date. If less than all of the Subordinated Notes are to be redeemed, the Subordinated Notes to be redeemed shall be selected by the Trustee by lot; provided that, to the extent the Subordinated Notes to be redeemed are represented by a Global Certificate, such Subordinated Notes shall be selected in accordance with the procedures of DTC.

The Subordinated Notes are not entitled to the benefit of any sinking fund.

If an Event of Default with respect to Subordinated Notes of this series shall occur and be continuing, the principal of the Subordinated Notes of this series may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.

The Indenture contains provisions for satisfaction, discharge and defeasance at any time of the entire Indebtedness of this Subordinated Note upon compliance by the Company with certain conditions set forth in the Indenture.

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

So long as no Event of Default with respect to this Subordinated Note has occurred or is continuing, the Company shall have the right at any time during the term of this Subordinated Note to defer payment of interest on this Subordinated Note for one or more consecutive Interest Periods that do not exceed five years for any single Deferral Period, during which the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid; provided, however, that no Deferral Period shall extend beyond the Maturity Date or the earlier accelerated maturity date arising from an Event of Default or redemption of this Subordinated Note. Upon the termination of any Deferral Period and upon the payment of all deferred interest then due, the Company may elect to begin a new Deferral Period, subject to the above requirements.

 

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So long as any Subordinated Notes of this series remain outstanding, if the Company has given notice of its election to defer interest payments on the Subordinated Notes but the related Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to, (i) declare or pay any dividends or other distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company’s Capital Stock, (ii) make any payment of principal of, or interest or premium, if any, on or repay, purchase or redeem any debt securities of the Company that rank upon the Company’s liquidation on a parity with this Subordinated Note or junior to this Subordinated Note or (iii) make any guarantee payments regarding any guarantee issued by the Company of securities of any Subsidiary if the guarantee ranks upon the Company’s liquidation on a parity with or junior to this Subordinated Note (other than (a) any purchase, redemption or other acquisition of shares of its Capital Stock in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of its employees, officers, directors, consultants or independent contractors, (2) the satisfaction of the Company’s obligations pursuant to any contract entered into prior to the beginning of the applicable Deferral Period, (3) a dividend reinvestment or shareholder purchase plan, or (4) the issuance of shares of the Company’s Capital Stock, or securities convertible into or exercisable for such shares, as consideration in an acquisition transaction entered into prior to the applicable Deferral Period, (b) any exchange, redemption or conversion of any class or series of the Company’s Capital Stock, or the Capital Stock of one of its Subsidiaries, for any other class or series of its Capital Stock, or of any class or series of its Indebtedness for any class or series of its Capital Stock, (c) any purchase of fractional interests in shares of the Company’s Capital Stock pursuant to the conversion or exchange provisions of such shares or the securities being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, stock or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto, (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, or (f) (1) any payment of current or deferred interest on Parity Securities that is made pro rata to the amounts due on such Parity Securities (including the Notes), and (2) any payments of principal or current or deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities).

The Company shall give written notice of its election to commence or continue any Deferral Period to the Trustee and the Holders of all Securities of this series then Outstanding at least five days (in the case of the Trustee) or fifteen days (in the case of the Holders) and not more than 60 days, in each case, before the next Interest Payment Date. Such notice shall be given to the Trustee and the Holder of this Security at such Holder’s address appearing in the Security Register by first-class mail, postage prepaid (or, as long as the Notes are held through DTC, transmitted in accordance with applicable procedures of DTC).

Except as provided in the immediately preceding paragraph and Article XI of the Second Supplemental Subordinated Indenture, no reference herein to the Indenture and no provision of this Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Subordinated Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

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As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Subordinated Note is registrable in the Securities Register, upon surrender of this Subordinated Note for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Base Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Subordinated Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

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

The Subordinated Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Global Security is exchangeable for Subordinated Notes in definitive form only under certain limited circumstances set forth in the Indenture. Subordinated Notes so issued are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Base Indenture and subject to certain limitations therein set forth, Subordinated Notes are exchangeable for a like aggregate principal amount of Subordinated Notes of a different authorized denomination, as requested by the Holder surrendering the same.

No recourse shall be had for the payment of the principal of or the interest on this Subordinated Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.

The Company agrees and, by its acceptance of this Subordinated Note or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Subordinated Note agrees to treat this Subordinated Note as Indebtedness for United States federal, state and local tax purposes.

THE INDENTURE AND THIS SUBORDINATED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.

 

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ARTICLE X

ORIGINAL ISSUE OF SUBORDINATED NOTES

Section 10.1 Original Issue of Subordinated Notes.

Subordinated Notes in the aggregate principal amount not to exceed $432,743,000, except as provided in Section 2.1(b) hereof, may, upon execution of this Second Supplemental Subordinated Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Subordinated Notes to or upon the written order of the Company, signed by an officer of the Company, without any further action by the Company.

The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice, if any specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of the year and (ii) such other specific information relating to any such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.

ARTICLE XI

[RESERVED]

ARTICLE XII

DEFEASANCE OF CERTAIN COVENANTS

Section 12.1 Defeasance.

The provisions of Article XIV of the Base Indenture shall apply to the Subordinated Notes.

ARTICLE XIII

[RESERVED]

ARTICLE XIV

HOLDERS’ MEETINGS

Section 14.1 Purposes of Meetings.

A meeting of Holders of any or all series may be called at any time and from time to time pursuant to the provisions of this Article XIV for any of the following purposes:

 

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(a) to give any notice to the Company or to the Trustee for such series, or to give any directions to the Trustee for such series, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article V of the Base Indenture;

(b) to remove the Trustee for such series and appoint a successor Trustee pursuant to the provisions of Article VI of the Base Indenture;

(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.2 of the Base Indenture; or

(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Outstanding Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.

Section 14.2 Call of Meetings by Trustee.

The Trustee for any series may at any time call a meeting of Holders of such series to take any action specified in Section 14.1 hereof, to be held at such time or times and at such place or places as the Trustee for such series shall determine. Notice of every meeting of the Holders of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to Holders of such series in the manner and to the extent provided in Section 1.06 of the Base Indenture. Such notice shall be given not less than ten days nor more than ninety days prior to the date fixed for the meeting.

Section 14.3 Call of Meetings by Company or Holders.

In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 20% in aggregate principal amount of the Outstanding Securities of a series or of all series, as the case may be, shall have requested the Trustee for such series to call a meeting of Holders of any or all such series by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within ten days after the receipt of such request, then the Company or such Holders may determine the time or times and the place or places for such meetings and may call such meetings to take any action authorized in Section 14.1 hereof, by giving notice thereof as provided in Section 14.2 hereof.

Section 14.4 Qualifications for Voting.

To be entitled to vote at any meeting of Holders a Person shall be (a) a Holder of a Security of the series with respect to which such meeting is being held or (b) a Person appointed by an instrument in writing as agent or proxy by such Holder. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee for the series with respect to which such meeting is being held and its counsel and any representatives of the Company and its counsel.

 

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Section 14.5 Regulations.

Notwithstanding any other provisions of this Indenture, the Trustee for any series may make such reasonable regulations as it may deem advisable for any meeting of Holders of such series, in regard to proof of the holding of Securities of such series and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.

The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of such series as provided in Section 14.3 hereof, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by a majority vote of the meeting.

Subject to the provisos in the definition of “Outstanding,” at any meeting each Holder of a Security of the series with respect to which such meeting is being held or proxy therefor shall be entitled to one vote for each $1,000 principal amount, as applicable (or such other amount as shall be specified pursuant to Section 3.01 of the Base Indenture) of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Outstanding Debt.

Securities of such series held by him or instruments in writing duly designating him as the Person to vote on behalf of Holders of Securities of such series. Any meeting of Holders with respect to which a meeting was duly called pursuant to the provisions of Section 14.2 or 14.3 hereof may be adjourned from time to time by a majority of such Holders present representing a majority of votes eligible to be cast at such meeting of the series with respect to which such meeting is being held and the meeting may be held as so adjourned without further notice.

Section 14.6 Voting.

The vote upon any resolution submitted to any meeting of Holders with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be taken, and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was transmitted as provided in Section 14.2 hereof. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.

 

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Any record so signed and verified shall be conclusive evidence of the matters therein stated.

ARTICLE XV

MISCELLANEOUS

Section 15.1 Ratification of Indenture.

The Base Indenture as supplemented by this Second Supplemental Subordinated Indenture, is in all respects ratified and confirmed, and this Second Supplemental Subordinated Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.

Section 15.2 [Reserved]

Section 15.3 Trustee Not Responsible for Recitals; Concerning the Calculation Agent.

The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Calculation Agent shall have all of the rights, immunities, and protections accorded the Trustee under the Indenture.

Section 15.4 Governing Law.

This Second Supplemental Subordinated Indenture and each Subordinated Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State applicable to contracts made and to be performed entirely within said State.

Section 15.5 Separability.

In case any one or more of the provisions contained in this Second Supplemental Subordinated Indenture or in the Subordinated Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Second Supplemental Subordinated Indenture or of the Subordinated Notes, but this Second Supplemental Subordinated Indenture and the Subordinated Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

Section 15.6 Counterparts.

This Second Supplemental Indenture may be executed (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

-28-


IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Subordinated Indenture to be duly executed by their respective officers thereunto duly authorized, on the date or dates indicated in the acknowledgments and as of the day and year first above written.

 

LINCOLN NATIONAL CORPORATION, as Issuer
By:  

/s/ Randal J. Freitag

  Name: Randal J. Freitag
  Title: Executive Vice President and Chief           Financial Officer
By:  

/s/ Christopher A. Giovanni

  Name: Christopher A. Giovanni
  Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ Latoya S Elvin

  Name: Latoya S Elvin
  Title: Vice President

 

-29-

Exhibit 4.6

FORM OF FLOATING RATE SUBORDINATED NOTE DUE 2066

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

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


LINCOLN NATIONAL CORPORATION

Floating Rate Subordinated Notes

 

No. R-        $                        
     CUSIP No. 534187 BN8

LINCOLN NATIONAL CORPORATION, a corporation organized and existing under the laws of Indiana (hereinafter called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee of The Depository Trust Company, or registered assigns, the principal sum of                                               ($                    ) on May 17, 2066 (the “Maturity Date”). Notwithstanding the preceding sentence, in the event that the Maturity Date is not a Business Day, then the Maturity Date will be the next succeeding day which is a Business Day, except if such Business Day is in the next succeeding calendar month then the Maturity Date will be the immediately preceding day which is a Business Day. The Subordinated Notes will bear interest at the per annum rate of 3-Month LIBOR plus a margin equal to 2.3575% (the “Floating Rate”), payable quarterly on February 17, May 17, August 17 and November 17. Interest payments in respect of Interest Payment Periods will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but not including, the next succeeding Interest Payment Date or the Maturity Date, as the case may be; provided, however, that the amount of interest payable for the first Interest Payment Period shall be determined from and including May 17, 2021. The amount of interest payable will be computed on the basis of a 360-day year and the actual number of days elapsed in each quarterly Interest Payment Period. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one-hundred-thousandth of a percentage point. If any Interest Payment Date is not a Business Day, then the Interest Payment Date shall be the immediately succeeding Business Day, except that if such Business Day is in the next succeeding calendar month then such Interest Payment Date will be the immediately preceding Business Day. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name this Subordinated Note is registered at the close of business on the day next preceding the Interest Payment Date; provided, that in the event the Subordinated Notes will not continue to remain in book-entry form or are not in the form of a Global Certificate, the record date for each Interest Payment Date shall be the first day of the month in which such Interest Payment Date occurs (in each case, the applicable “Record Date”). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date, and may be paid to the Person in whose name this Subordinated Note is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Subordinated Notes not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Subordinated Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of (and premium, if any) and the interest (including any compounded interest thereon) on this Subordinated Note shall be payable at the office or agency of the Trustee maintained for that purpose in the United States, in any coin or currency of the United States of America which at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the registered Holder at such address as shall appear in the Security Register.

The Indebtedness evidenced by this Subordinated Note is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Subordinated Note is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Subordinated Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each Holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

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


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


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

Dated: August 11, 2021

 

LINCOLN NATIONAL CORPORATION
By:  

 

Name:  
Title:  

 

Attest:  

 

Name:  
Title:  

This is one of the Securities referred to in the within mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as

Trustee

By:  

 

  Authorized Officer


[REVERSE OF NOTE]

LINCOLN NATIONAL CORPORATION

Floating Rate Subordinated Notes

This Note is one of a duly authorized issue of securities of the Company (herein called the “Subordinated Notes”), issued and to be issued in one or more series under a Subordinated Indenture, dated as of August 11, 2021 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as supplemented by a First Supplemental Subordinated Indenture, dated as of August 11, 2021 (the “First Supplemental Subordinated Indenture” and the Base Indenture as so supplemented, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Subordinated Notes, and of the terms upon which the Subordinated Notes are, and are to be, authenticated and delivered. This Subordinated Note is one of the series designated on the face hereof, limited in aggregate principal amount to $562,034,000.

All terms used in this Subordinated Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

The Company shall have the right, at its option, to redeem the Subordinated Notes for cash:

(a) in whole at any time or in part from time to time on or after August 11, 2026, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; provided that if the Subordinated Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Subordinated Notes (excluding any Subordinated Notes held by the Company or any of its Affiliates) remains Outstanding after giving effect to such redemption;

(b) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Tax Event or a Regulatory Capital Event, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; or

(c) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to 102% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date.

Notwithstanding the foregoing, the Company may not redeem the Subordinated Notes unless all accrued and unpaid interest, including deferred interest (and compounded interest thereon), has been paid in full on all Outstanding Subordinated Notes for all Interest Payment Periods ending on or before the Redemption Date.

The Company will prepare and mail a notice of redemption to each Holder of Subordinated Notes to be redeemed by first-class mail at least 15 but not more than 60 days prior to the date fixed for redemption. On and after a Redemption Date, interest will cease to accrue on the Subordinated Notes called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest (including any compounded interest thereon)). On or before a Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest (including any compounded interest thereon) on the Subordinated Notes to be redeemed on that date. If less than all of the Subordinated Notes are to be redeemed, the Subordinated Notes to be redeemed shall be selected by the Trustee by lot; provided that, to the extent the Subordinated Notes to be redeemed are represented by a Global Certificate, such Subordinated Notes shall be selected in accordance with the procedures of DTC.

The Subordinated Notes are not entitled to the benefit of any sinking fund.

If an Event of Default with respect to Subordinated Notes of this series shall occur and be continuing, the principal of the Subordinated Notes of this series may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.


The Indenture contains provisions for satisfaction, discharge and defeasance at any time of the entire Indebtedness of this Subordinated Note upon compliance by the Company with certain conditions set forth in the Indenture.

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

So long as no Event of Default with respect to this Subordinated Note has occurred or is continuing, the Company shall have the right at any time during the term of this Subordinated Note to defer payment of interest on this Subordinated Note for one or more consecutive Interest Periods that do not exceed five years for any single Deferral Period, during which the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid; provided, however, that no Deferral Period shall extend beyond the Maturity Date or the earlier accelerated maturity date arising from an Event of Default or redemption of this Subordinated Note. Upon the termination of any Deferral Period and upon the payment of all deferred interest then due, the Company may elect to begin a new Deferral Period, subject to the above requirements.

So long as any Subordinated Notes of this series remain outstanding, if the Company has given notice of its election to defer interest payments on the Subordinated Notes but the related Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to, (i) declare or pay any dividends or other distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company’s Capital Stock, (ii) make any payment of principal of, or interest or premium, if any, on or repay, purchase or redeem any debt securities of the Company that rank upon the Company’s liquidation on a parity with this Subordinated Note or junior to this Subordinated Note or (iii) make any guarantee payments regarding any guarantee issued by the Company of securities of any Subsidiary if the guarantee ranks upon the Company’s liquidation on a parity with or junior to this Subordinated Note (other than (a) any purchase, redemption or other acquisition of shares of its Capital Stock in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of its employees, officers, directors, consultants or independent contractors, (2) the satisfaction of the Company’s obligations pursuant to any contract entered into prior to the beginning of the applicable Deferral Period, (3) a dividend reinvestment or shareholder purchase plan, or (4) the issuance of shares of the Company’s Capital Stock, or securities convertible into or exercisable for such shares, as consideration in an acquisition transaction entered into prior to the applicable Deferral Period, (b) any exchange, redemption or conversion of any class or series of the Company’s Capital Stock, or the Capital Stock of one of its Subsidiaries, for any other class or series of its Capital Stock, or of any class or series of its Indebtedness for any class or series of its Capital Stock, (c) any purchase of fractional interests in shares of the Company’s Capital Stock pursuant to the conversion or exchange provisions of such shares or the securities being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, stock or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto, (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, or (f) (1) any payment of current or deferred interest on Parity Securities that is made pro rata to the amounts due on such Parity Securities (including the Notes), and (2) any payments of principal or current or deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities).

The Company shall give written notice of its election to commence or continue any Deferral Period to the Trustee and the Holders of all Securities of this series then Outstanding at least five days (in the case of the Trustee) or fifteen days (in the case of the Holders) and not more than 60 days, in each case, before the next Interest Payment


Date. Such notice shall be given to the Trustee and the Holder of this Security at such Holder’s address appearing in the Security Register by first-class mail, postage prepaid (or, as long as the Notes are held through DTC, transmitted in accordance with applicable procedures of DTC).

Except as provided in the immediately preceding paragraph and Article XI of the First Supplemental Subordinated Indenture, no reference herein to the Indenture and no provision of this Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Subordinated Note at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Subordinated Note is registrable in the Securities Register, upon surrender of this Subordinated Note for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Base Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Subordinated Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

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

The Subordinated Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Global Security is exchangeable for Subordinated Notes in definitive form only under certain limited circumstances set forth in the Indenture. Subordinated Notes so issued are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Base Indenture and subject to certain limitations therein set forth, Subordinated Notes are exchangeable for a like aggregate principal amount of Subordinated Notes of a different authorized denomination, as requested by the Holder surrendering the same.

No recourse shall be had for the payment of the principal of or the interest on this Subordinated Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.

The Company agrees and, by its acceptance of this Subordinated Note or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Subordinated Note agrees to treat this Subordinated Note as Indebtedness for United States federal, state and local tax purposes.

THE INDENTURE AND THIS SUBORDINATED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.

Exhibit 4.7

FORM OF FLOATING RATE SUBORDINATED NOTE DUE 2067

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

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


LINCOLN NATIONAL CORPORATION

Floating Rate Subordinated Notes

 

No. R-        $                        
   CUSIP No. 534187 BP3

LINCOLN NATIONAL CORPORATION, a corporation organized and existing under the laws of Indiana (hereinafter called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee of The Depository Trust Company, or registered assigns, the principal sum of                                               ($                        ) on April 20, 2067 (the “Maturity Date”). Notwithstanding the preceding sentence, in the event that the Maturity Date is not a Business Day, then the Maturity Date will be the next succeeding day which is a Business Day, except if such Business Day is in the next succeeding calendar month then the Maturity Date will be the immediately preceding day which is a Business Day. The Subordinated Notes will bear interest at the per annum rate of 3-Month LIBOR plus a margin equal to 2.0400% (the “Floating Rate”), payable quarterly on January 20, April 20, July 20 and October 20. Interest payments in respect of Interest Payment Periods will include accrued interest from and including the last date in respect of which interest has been paid or duly provided for to, but not including, the next succeeding Interest Payment Date or the Maturity Date, as the case may be; provided, however, that the amount of interest payable for the first Interest Payment Period shall be determined from and including July 20, 2021. The amount of interest payable will be computed on the basis of a 360-day year and the actual number of days elapsed in each quarterly Interest Payment Period. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one-hundred-thousandth of a percentage point. If any Interest Payment Date is not a Business Day, then the Interest Payment Date shall be the immediately succeeding Business Day, except that if such Business Day is in the next succeeding calendar month then such Interest Payment Date will be the immediately preceding Business Day. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Base Indenture, be paid to the Person in whose name this Subordinated Note is registered at the close of business on the day next preceding the Interest Payment Date; provided, that in the event the Subordinated Notes will not continue to remain in book-entry form or are not in the form of a Global Certificate, the record date for each Interest Payment Date shall be the first day of the month in which such Interest Payment Date occurs (in each case, the applicable “Record Date”). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date, and may be paid to the Person in whose name this Subordinated Note is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest after the Company has deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Subordinated Notes not less than ten days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Subordinated Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of (and premium, if any) and the interest (including any compounded interest thereon) on this Subordinated Note shall be payable at the office or agency of the Trustee maintained for that purpose in the United States, in any coin or currency of the United States of America which at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the registered Holder at such address as shall appear in the Security Register.

The Indebtedness evidenced by this Subordinated Note is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness, and this Subordinated Note is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Subordinated Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each Holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.


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

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


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

Dated: August 11, 2021

 

LINCOLN NATIONAL CORPORATION
By:  

 

Name:  
Title:  

 

Attest:  

 

Name:  
Title:  

This is one of the Securities referred to in the within mentioned Indenture.

 

THE BANK OF NEW YORK MELLON,

as Trustee

By:  

 

  Authorized Officer


[REVERSE OF NOTE]

LINCOLN NATIONAL CORPORATION

Floating Rate Subordinated Notes

This Note is one of a duly authorized issue of securities of the Company (herein called the “Subordinated Notes”), issued and to be issued in one or more series under a Subordinated Indenture, dated as of August 11, 2021 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon (herein called the “Trustee”, which term includes any successor trustee under the Indenture), as supplemented by a Second Supplemental Subordinated Indenture, dated as of August 11, 2021 (the “Second Supplemental Subordinated Indenture” and the Base Indenture as so supplemented, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Subordinated Notes, and of the terms upon which the Subordinated Notes are, and are to be, authenticated and delivered. This Subordinated Note is one of the series designated on the face hereof, limited in aggregate principal amount to $432,743,000.

All terms used in this Subordinated Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.

The Company shall have the right, at its option, to redeem the Subordinated Notes for cash:

(a) in whole at any time or in part from time to time on or after August 11, 2026, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; provided that if the Subordinated Notes are not redeemed in whole, at least $25 million aggregate principal amount of the Subordinated Notes (excluding any Subordinated Notes held by the Company or any of its Affiliates) remains Outstanding after giving effect to such redemption;

(b) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Tax Event or a Regulatory Capital Event, at a redemption price equal to 100% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date; or

(c) in whole, but not in part, at any time prior to August 11, 2026, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to 102% of the principal amount of the Subordinated Notes being redeemed plus accrued and unpaid interest to but excluding the Redemption Date.

Notwithstanding the foregoing, the Company may not redeem the Subordinated Notes unless all accrued and unpaid interest, including deferred interest (and compounded interest thereon), has been paid in full on all Outstanding Subordinated Notes for all Interest Payment Periods ending on or before the Redemption Date.

The Company will prepare and mail a notice of redemption to each Holder of Subordinated Notes to be redeemed by first-class mail at least 15 but not more than 60 days prior to the date fixed for redemption. On and after a Redemption Date, interest will cease to accrue on the Subordinated Notes called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest (including any compounded interest thereon)). On or before a Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest (including any compounded interest thereon) on the Subordinated Notes to be redeemed on that date. If less than all of the Subordinated Notes are to be redeemed, the Subordinated Notes to be redeemed shall be selected by the Trustee by lot; provided that, to the extent the Subordinated Notes to be redeemed are represented by a Global Certificate, such Subordinated Notes shall be selected in accordance with the procedures of DTC.

The Subordinated Notes are not entitled to the benefit of any sinking fund.

If an Event of Default with respect to Subordinated Notes of this series shall occur and be continuing, the principal of the Subordinated Notes of this series may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.


The Indenture contains provisions for satisfaction, discharge and defeasance at any time of the entire Indebtedness of this Subordinated Note upon compliance by the Company with certain conditions set forth in the Indenture.

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

So long as no Event of Default with respect to this Subordinated Note has occurred or is continuing, the Company shall have the right at any time during the term of this Subordinated Note to defer payment of interest on this Subordinated Note for one or more consecutive Interest Periods that do not exceed five years for any single Deferral Period, during which the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid; provided, however, that no Deferral Period shall extend beyond the Maturity Date or the earlier accelerated maturity date arising from an Event of Default or redemption of this Subordinated Note. Upon the termination of any Deferral Period and upon the payment of all deferred interest then due, the Company may elect to begin a new Deferral Period, subject to the above requirements.

So long as any Subordinated Notes of this series remain outstanding, if the Company has given notice of its election to defer interest payments on the Subordinated Notes but the related Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to, (i) declare or pay any dividends or other distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company’s Capital Stock, (ii) make any payment of principal of, or interest or premium, if any, on or repay, purchase or redeem any debt securities of the Company that rank upon the Company’s liquidation on a parity with this Subordinated Note or junior to this Subordinated Note or (iii) make any guarantee payments regarding any guarantee issued by the Company of securities of any Subsidiary if the guarantee ranks upon the Company’s liquidation on a parity with or junior to this Subordinated Note (other than (a) any purchase, redemption or other acquisition of shares of its Capital Stock in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of its employees, officers, directors, consultants or independent contractors, (2) the satisfaction of the Company’s obligations pursuant to any contract entered into prior to the beginning of the applicable Deferral Period, (3) a dividend reinvestment or shareholder purchase plan, or (4) the issuance of shares of the Company’s Capital Stock, or securities convertible into or exercisable for such shares, as consideration in an acquisition transaction entered into prior to the applicable Deferral Period, (b) any exchange, redemption or conversion of any class or series of the Company’s Capital Stock, or the Capital Stock of one of its Subsidiaries, for any other class or series of its Capital Stock, or of any class or series of its Indebtedness for any class or series of its Capital Stock, (c) any purchase of fractional interests in shares of the Company’s Capital Stock pursuant to the conversion or exchange provisions of such shares or the securities being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, stock or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto, (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock, or (f) (1) any payment of current or deferred interest on Parity Securities that is made pro rata to the amounts due on such Parity Securities (including the Notes), and (2) any payments of principal or current or deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities).

The Company shall give written notice of its election to commence or continue any Deferral Period to the Trustee and the Holders of all Securities of this series then Outstanding at least five days (in the case of the Trustee) or fifteen days (in the case of the Holders) and not more than 60 days, in each case, before the next Interest Payment


Date. Such notice shall be given to the Trustee and the Holder of this Security at such Holder’s address appearing in the Security Register by first-class mail, postage prepaid (or, as long as the Notes are held through DTC, transmitted in accordance with applicable procedures of DTC).

Except as provided in the immediately preceding paragraph and Article XI of the Second Supplemental Subordinated Indenture, no reference herein to the Indenture and no provision of this Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Subordinated Note at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Subordinated Note is registrable in the Securities Register, upon surrender of this Subordinated Note for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Base Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Subordinated Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

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

The Subordinated Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Global Security is exchangeable for Subordinated Notes in definitive form only under certain limited circumstances set forth in the Indenture. Subordinated Notes so issued are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Base Indenture and subject to certain limitations therein set forth, Subordinated Notes are exchangeable for a like aggregate principal amount of Subordinated Notes of a different authorized denomination, as requested by the Holder surrendering the same.

No recourse shall be had for the payment of the principal of or the interest on this Subordinated Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.

The Company agrees and, by its acceptance of this Subordinated Note or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Subordinated Note agrees to treat this Subordinated Note as Indebtedness for United States federal, state and local tax purposes.

THE INDENTURE AND THIS SUBORDINATED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.

Exhibit 99.1

Lincoln Financial Group Announces Expiration and Final Results of Exchange Offers and Consent Solicitations for Outstanding Capital Securities

RADNOR, PA, August 10, 2021 — Lincoln Financial Group (NYSE: LNC) (the “Company,” “we” or “our”) announced today that, as of 5:00 p.m., New York City time, on August 9, 2021 (the “expiration date”) the aggregate principal amount of each series of capital securities listed in the table below previously issued by the Company had been validly tendered and not validly withdrawn. The Company is making this announcement in connection with its previously announced offers to exchange all validly tendered and accepted capital securities of such series for a like principal amount of new subordinated notes, and the related consent solicitations to amend the indentures governing the capital securities (together, the “exchange offers”).

A registration statement on Form S-4 relating to the issuance of the subordinated notes was filed with the Securities and Exchange Commission (“SEC”) on July 7, 2021 and was declared effective on August 5, 2021. The exchange offers were made pursuant to the terms and conditions set forth in the Company’s final prospectus, dated as of August 5, 2021 (the “prospectus”). Capitalized terms used but not defined herein have the meanings set forth in the prospectus.

The Company was advised by Global Bondholder Services Corporation, as the information agent and the exchange agent for the exchange offers, that as of the expiration date, the aggregate principal amounts of the capital securities specified in the rightmost column in the table below were validly tendered and not validly withdrawn with respect to the exchange offers:

 

Capital Securities to be Exchanged

   Aggregate
Principal
Amount
Outstanding
  

Subordinated Notes to be Issued

   Principal Amount of Capital
Securities Tendered as of the
Original Expiration
Date (% of Aggregate Principal
Amount Outstanding)
7.00%(1) Capital Securities due 2066
(CUSIP 534187 AS8)
(the “2066 Capital Securities”)
   $722,527,000   

Floating Rate(2) Subordinated Notes

due 2066 (CUSIP 534187 BN8)

(the “Subordinated Notes due 2066”)

   $562,034,000 (77.79%)
6.05%(1) Capital Securities due 2067
(CUSIP 534187 AU3)
(the “2067 Capital Securities”)
   $490,710,000   

Floating Rate(2) Subordinated Notes

due 2067 (CUSIP 534187 BP3) (the “Subordinated Notes due 2067”)

   $432,743,000 (88.19%)

 

1

Interest on the capital securities is currently payable in arrears until maturity on a quarterly basis at an annual rate based on 3-month LIBOR plus the applicable margin. The capital securities do not contain provisions to transition to a new reference rate in the event that LIBOR is unavailable.

2

Interest on the subordinated notes is initially payable in arrears until maturity on a quarterly basis at an annual rate based on 3-month LIBOR plus the applicable margin associated with the comparable series of capital securities. The interest rate will be determined by reference to a different reference rate than 3-month LIBOR if we or our designee determine that a benchmark transition event and its related benchmark replacement date have occurred with respect to 3-month LIBOR. If a benchmark transition event and its related benchmark replacement date occur, interest shall thereafter be based on the benchmark replacement, which will initially be the rate that would apply for derivatives transactions referencing the ISDA definitions effective upon the occurrence of an index cessation date with respect to 3-month LIBOR plus the applicable benchmark replacement adjustment, in each case plus the applicable margin. The terms related to the interest on the subordinated notes are described in more detail in the prospectus.

The exchange offers were conditioned on, among other things, the receipt of valid consents to the proposed amendments (as defined in the prospectus) to the indentures governing the capital securities from the holders of at least a majority of the outstanding aggregate principal amount of each series of capital securities. As of the expiration date, holders of at least a majority of the aggregate principal amount of each series of capital securities have tendered and not validly withdrawn their capital securities. The Company intends to accept for exchange all tendered capital securities in the exchange offers. Upon settlement of the exchange offers, the Company expects to issue $562,034,000 in aggregate principal amount of Subordinated Notes due 2066 and $432,743,000 in aggregate principal amount of Subordinated Notes due 2067. The settlement date for the exchange offers is expected to be August 11, 2021, subject to customary closing conditions. In addition, pursuant to the successful completion of the consent solicitations with respect to each series of capital securities, the Company expects to enter into a supplemental indenture with respect to each series of capital securities to effect the proposed amendments, as described further in the prospectus.


The joint lead dealer managers for the exchange offers were:

 

Credit Suisse Securities (USA) LLC

  

HSBC Securities (USA) Inc.

Structuring Advisor    452 Fifth Avenue
11 Madison Avenue    New York, New York 10018
New York, New York 10010    Attn: Global Liability Management Group
Attn: Liability Management Group   

Toll Free: (866) 811-8049

Toll Free: (800) 820-1653    Collect: (212) 525-5552
Collect: (212) 538-2147    E-mail: lmamericas@us.hsbc.com
E-mail: americas.lm@credit-suisse.com   

The exchange agent and information agent for the exchange offers was:

Global Bondholder Services Corporation

65 Broadway, Suite 404

New York, New York 10006

Attn: Corporate Actions

Bank and Brokers Call Collect: (212) 430-3774

All Others, Please Call Toll-Free: (866) 924-2200

Email: contact@gbsc-usa.com

The consummation of the exchange offers is subject to, and conditional upon, the satisfaction or, where permitted, waiver of the conditions discussed in the prospectus.

We have agreed to pay a soliciting broker fee equal to $2.50 for each $1,000 principal amount of capital securities that are validly tendered and accepted for exchange pursuant to the exchange offers to retail brokers that are appropriately designated by their clients to receive this fee; provided that such fee will only be paid with respect to tenders by holders whose aggregate principal amount of capital securities is $500,000 or less.

Additional Information and Where to Find it

The Company has filed a registration statement and the prospectus with the SEC for the exchange offers to which this press release relates. You are urged to read the prospectus and other relevant documents filed or to be filed with the SEC, as well as any amendments or supplements to those documents, because they will contain important information about the Company, the exchange offers and related matters. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, a copy of the prospectus may be obtained by contacting Credit Suisse Securities (USA) LLC, Attention: Liability Management Group, 11 Madison Avenue, New York, New York 10010 or calling (800) 820-1653. In addition, investors and security holders may obtain free copies of the documents filed with the SEC by contacting the exchange agent and information agent at the address listed above or by contacting Nancy A. Smith, Senior Vice President & Secretary, 150 N. Radnor-Chester Road, Radnor, PA 19087, 484-583-1400.

This press release shall not constitute an offer to sell, or a solicitation of an offer to buy, any of the securities described herein and is also not a solicitation of the related consents. The exchange offers were made only pursuant to the terms and conditions set forth in the prospectus and the other related materials. This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities nor will there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.


This communication is not a prospectus for the purposes of the Prospectus Regulation. The expression “Prospectus Regulation” means Regulation (EU) 2017/1129, as amended, and includes any relevant implementing measure in any member state of the European Economic Area (the “EEA”) which has implemented the Prospectus Regulation, and, in relation to the United Kingdom (“United Kingdom”), means the Prospectus Regulation as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”).

PROHIBITION OF OFFERS TO EEA RETAIL INVESTORS. The subordinated notes are not intended to be offered, sold or otherwise made available to and should not be offered or otherwise made available to any retail investor in the EEA. For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU, as amended (“MiFID II”); (ii) a customer within the meaning of Directive (EU) 2016/97, as amended (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in the Prospectus Regulation. Consequently, no key information document required by Regulation (EU) No 1286/2014, as amended (the “PRIIPs Regulation”), for offering or selling the subordinated notes or otherwise making them available to retail investors in the EEA has been prepared and therefore offering or selling the subordinated notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.

PROHIBITION OF SALES TO UNITED KINGDOM RETAIL INVESTORS. The subordinated notes are not intended to be offered, sold or otherwise made available to and should not be offered or otherwise made available to any retail investor in the United Kingdom. For these purposes: the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the EUWA; or (ii) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (“FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of the Prospectus Regulation as it forms part of domestic law by virtue of the EUWA. Consequently, no key information document required by the PRIIPs Regulation as it forms part of domestic law by virtue of the EUWA (the “United Kingdom PRIIPs Regulation”) for offering or selling the subordinated notes or otherwise making them available to retail investors in the United Kingdom has been prepared and therefore offering or selling the subordinated notes or otherwise making them available to any retail investor in the United Kingdom may be unlawful under the United Kingdom PRIIPs Regulation.

In the United Kingdom, this press release is being distributed only to, and is directed only at, qualified investors within the meaning of Article 2(e) of the Prospectus Regulation as it forms a part of domestic law by virtue of the EUWA who are (i) persons who have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the “Order”), and/ or (ii) high net worth companies (or persons to whom it may otherwise be lawfully communicated) falling within Article 49(2)(a) to (d) of the Order, which persons together we refer to in this press release as “relevant persons.” Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. This press release must not be acted on or relied on in the United Kingdom by persons who are not relevant persons. In the United Kingdom, any investment or investment activity to which this press release relates is only available to, and will be engaged in with, relevant persons only.


About Lincoln Financial Group

Lincoln Financial Group provides advice and solutions that help people take charge of their financial lives with confidence and optimism. Today, more than 17 million customers trust our retirement, insurance and wealth protection expertise to help address their lifestyle, savings and income goals, and guard against long-term care expenses. Headquartered in Radnor, Pennsylvania, Lincoln Financial Group is the marketing name for Lincoln National Corporation (NYSE: LNC) and its affiliates. The Company had $324 billion in end-of-period account values as of June 30, 2021. Lincoln Financial Group is a committed corporate citizen included on major sustainability indices including the Dow Jones Sustainability Index North America and FTSE4Good. Dedicated to diversity and inclusion, we earned perfect 100 percent scores on the Corporate Equality Index and the Disability Equality Index, and rank among Forbes’ Best Large Employers and Best Employers for Women, and Newsweek’s Most Responsible Companies.

Forward-Looking Statements – Cautionary Language

Certain statements made in this press release are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 (“PSLRA”). A forward-looking statement is a statement that is not a historical fact and, without limitation, includes any statement that may predict, forecast, indicate or imply future results, performance or achievements. Forward-looking statements may contain words like: “anticipate,” “believe,” “estimate,” “expect,” “project,” “shall,” “will” and other words or phrases with similar meaning in connection with a discussion of future operating or financial performance. In particular, these include statements relating to future actions, including the completion of the exchange offers. The prospectus, including the section entitled “Risk Factors”, and our most recent Annual Report on Form 10-K, as well as other reports that we file with the SEC, include risk factors that could affect our future actions, businesses and financial performance. Moreover, new risk factors emerge from time to time, and it is not possible for management to predict all such risk factors or to assess the effect of all risk factors on our businesses or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements as a prediction of actual results. In addition, we disclaim any obligation to update any forward-looking statements to reflect events or circumstances that occur after the date of this press release.

Contact:

Al Copersino

(203) 257-4493

Investor Relations

InvestorRelations@LFG.com

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