Exhibit 4.1

 

EXECUTION VERSION

 

	
 
    


 

	
 
    


 

NRG ENERGY, INC.,

 

THE GUARANTOR PARTIES HERETO

 

and

 

DELAWARE TRUST COMPANY

 

as Trustee

 




 

INDENTURE

 

Dated as of May 24, 2018

 




 

2.75% Convertible Senior Notes due 2048

 

	
 
    


 

	
 
    


 











 

TABLE OF CONTENTS

 

	
 
    	
 
    	
Page
    
	
Article 1.  Definitions; Rules of Construction
    	
1
    
	
 
    	
 
    
	
Section 1.01.
    	
Definitions
    	
1
    
	
Section 1.02.
    	
Other Definitions
    	
13
    
	
Section 1.03.
    	
Rules of   Construction
    	
14
    
	
 
    	
 
    	
 
    
	
Article 2.  The Notes
    	
15
    
	
 
    	
 
    	
 
    
	
Section 2.01.
    	
Form, Dating and   Denominations
    	
15
    
	
Section 2.02.
    	
Execution,   Authentication and Delivery
    	
15
    
	
Section 2.03.
    	
Initial Notes and   Additional Notes
    	
16
    
	
Section 2.04.
    	
Method of Payment
    	
17
    
	
Section 2.05.
    	
Accrual of Interest;   Defaulted Amounts; When Payment Date is Not a Business Day
    	
17
    
	
Section 2.06.
    	
Registrar, Paying Agent   and Conversion Agent
    	
18
    
	
Section 2.07.
    	
Paying Agent and   Conversion Agent to Hold Property in Trust.
    	
19
    
	
Section 2.08.
    	
Holder Lists
    	
19
    
	
Section 2.09.
    	
Legends
    	
19
    
	
Section 2.10.
    	
Transfers and   Exchanges; Certain Transfer Restrictions
    	
20
    
	
Section 2.11.
    	
Exchange and   Cancellation of Notes to Be Converted, Redeemed or Repurchased
    	
25
    
	
Section 2.12.
    	
Removal of Transfer   Restrictions
    	
26
    
	
Section 2.13.
    	
Replacement Notes
    	
26
    
	
Section 2.14.
    	
Registered Holders;   Certain Rights with Respect to Global Notes
    	
27
    
	
Section 2.15.
    	
Cancellation
    	
27
    
	
Section 2.16.
    	
Notes Held by the   Company or its Affiliates
    	
27
    
	
Section 2.17.
    	
Temporary Notes
    	
27
    
	
Section 2.18.
    	
Outstanding Notes
    	
28
    
	
Section 2.19.
    	
Repurchases by the Company
    	
28
    
	
Section 2.20.
    	
CUSIP and ISIN Numbers
    	
29
    
	
 
    	
 
    	
 
    
	
Article 3.  Covenants
    	
29
    
	
 
    	
 
    	
 
    
	
Section 3.01.
    	
Payment on Notes
    	
29
    
	
Section 3.02.
    	
Exchange Act Reports
    	
29
    
	
Section 3.03.
    	
Rule 144A   Information
    	
30
    
	
Section 3.04.
    	
Additional Interest.
    	
30
    
	
Section 3.05.
    	
Compliance and Default   Certificates
    	
31
    
	
Section 3.06.
    	
Stay, Extension and   Usury Laws
    	
31
    
	
Section 3.07.
    	
Corporate Existence
    	
31
    
	
Section 3.08.
    	
Restriction on   Acquisition of Notes by the Company and its Affiliates
    	
32
    
	
Section 3.09.
    	
Further Instruments and   Acts
    	
32
    
	
 
    	
 
    	
 
    
	
Article 4.  Repurchase and Redemption
    	
32
    
	
 
    	
 
    	
 
    
	
Section 4.01.
    	
No Sinking Fund
    	
32
    


 

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Section 4.02.
    	
Right of Holders to Require   the Company to Repurchase Notes upon a Fundamental Change
    	
32
    
	
Section 4.03.
    	
Right of Holders to   Require the Company to Repurchase Notes on the Optional Repurchase Dates
    	
36
    
	
Section 4.04.
    	
Right of the Company to   Redeem the Notes
    	
39
    
	
 
    	
 
    	
 
    
	
Article 5.  Conversion
    	
41
    
	
 
    	
 
    	
 
    
	
Section 5.01.
    	
Right to Convert
    	
41
    
	
Section 5.02.
    	
Conversion Procedures
    	
45
    
	
Section 5.03.
    	
Settlement upon   Conversion
    	
47
    
	
Section 5.04.
    	
Reserve and Status of   Common Stock Issued upon Conversion
    	
49
    
	
Section 5.05.
    	
Adjustments to the Conversion   Rate
    	
50
    
	
Section 5.06.
    	
Voluntary Adjustments
    	
60
    
	
Section 5.07.
    	
Adjustments to the   Conversion Rate in Connection with a Make-Whole Fundamental Change
    	
60
    
	
Section 5.08.
    	
Effect of Common Stock   Change Event
    	
62
    
	
 
    	
 
    	
 
    
	
Article 6.  Successors
    	
63
    
	
 
    	
 
    	
 
    
	
Section 6.01.
    	
When the Company   May Merge, Etc.
    	
63
    
	
Section 6.02.
    	
Successor Corporation   Substituted
    	
64
    
	
Section 6.03.
    	
Exclusion for Asset   Transfers with Wholly Owned Subsidiaries
    	
64
    
	
 
    	
 
    	
 
    
	
Article 7.  Defaults and Remedies
    	
64
    
	
 
    	
 
    	
 
    
	
Section 7.01.
    	
Events of Default
    	
64
    
	
Section 7.02.
    	
Acceleration
    	
67
    
	
Section 7.03.
    	
Sole Remedy for a   Failure to Report
    	
67
    
	
Section 7.04.
    	
Other Remedies
    	
68
    
	
Section 7.05.
    	
Waiver of Past Defaults
    	
68
    
	
Section 7.06.
    	
Control by Majority
    	
69
    
	
Section 7.07.
    	
Limitation on Suits
    	
69
    
	
Section 7.08.
    	
Absolute Right of   Holders to Institute Suit for the Enforcement of the Right to Receive Payment   and Conversion Consideration
    	
70
    
	
Section 7.09.
    	
Collection Suit by   Trustee
    	
70
    
	
Section 7.10.
    	
Trustee May File   Proofs of Claim
    	
70
    
	
Section 7.11.
    	
Priorities
    	
71
    
	
Section 7.12.
    	
Undertaking for Costs
    	
71
    
	
 
    	
 
    	
 
    
	
Article 8.  Amendments, Supplements and Waivers
    	
71
    
	
 
    	
 
    	
 
    
	
Section 8.01.
    	
Without the Consent of   Holders
    	
71
    
	
Section 8.02.
    	
With the Consent of   Holders
    	
72
    
	
Section 8.03.
    	
Notice of Amendments, Supplements   and Waivers
    	
73
    
	
Section 8.04.
    	
Revocation, Effect and   Solicitation of Consents; Special Record Dates; Etc.
    	
74
    
	
Section 8.05.
    	
Notations and Exchanges
    	
74
    
	
Section 8.06.
    	
Trustee to Execute   Supplemental Indentures
    	
74
    
	
 
    	
 
    	
 
    
	
Article 9.  Guarantees
    	
75
    


 

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Section 9.01.
    	
Guarantees
    	
75
    
	
Section 9.02.
    	
Limitation on Guarantor   Liability
    	
76
    
	
Section 9.03.
    	
Execution and Delivery   of Guarantee
    	
76
    
	
Section 9.04.
    	
When Guarantors   May Merge, Etc.
    	
77
    
	
Section 9.05.
    	
Additional Subsidiary   Guarantees
    	
78
    
	
Section 9.06.
    	
Application of Certain   Provisions to the Guarantors
    	
78
    
	
Section 9.07.
    	
Release of Guarantees
    	
78
    
	
 
    	
 
    	
 
    
	
Article 10.  Satisfaction and Discharge
    	
79
    
	
 
    	
 
    	
 
    
	
Section 10.01.
    	
Termination of   Company’s Obligations
    	
79
    
	
Section 10.02.
    	
Repayment to Company
    	
80
    
	
Section 10.03.
    	
Reinstatement
    	
80
    
	
 
    	
 
    	
 
    
	
Article 11.  Trustee
    	
80
    
	
 
    	
 
    	
 
    
	
Section 11.01.
    	
Duties of the Trustee
    	
80
    
	
Section 11.02.
    	
Rights of the Trustee
    	
81
    
	
Section 11.03.
    	
Individual Rights of   the Trustee
    	
83
    
	
Section 11.04.
    	
Trustee’s Disclaimer
    	
83
    
	
Section 11.05.
    	
Notice of Defaults
    	
83
    
	
Section 11.06.
    	
Compensation and   Indemnity
    	
83
    
	
Section 11.07.
    	
Replacement of the   Trustee
    	
84
    
	
Section 11.08.
    	
Successor Trustee by   Merger, Etc.
    	
85
    
	
Section 11.09.
    	
Eligibility; Disqualification
    	
85
    
	
 
    	
 
    	
 
    
	
Article 12.  Miscellaneous
    	
85
    
	
 
    	
 
    	
 
    
	
Section 12.01.
    	
Notices
    	
85
    
	
Section 12.02.
    	
Delivery of Officer’s   Certificate and Opinion of Counsel as to Conditions Precedent
    	
87
    
	
Section 12.03.
    	
Statements Required in   Officer’s Certificate and Opinion of Counsel
    	
87
    
	
Section 12.04.
    	
Rules by the   Trustee, the Registrar and the Paying Agent
    	
88
    
	
Section 12.05.
    	
No Personal Liability   of Directors, Officers, Employees and Stockholders
    	
88
    
	
Section 12.06.
    	
Governing Law; Waiver   of Jury Trial
    	
88
    
	
Section 12.07.
    	
Submission to   Jurisdiction
    	
88
    
	
Section 12.08.
    	
No Adverse   Interpretation of Other Agreements
    	
89
    
	
Section 12.09.
    	
Successors
    	
89
    
	
Section 12.10.
    	
Force Majeure
    	
89
    
	
Section 12.11.
    	
U.S.A. Patriot Act
    	
89
    
	
Section 12.12.
    	
Calculations
    	
90
    
	
Section 12.13.
    	
Severability
    	
90
    
	
Section 12.14.
    	
Counterparts
    	
90
    
	
Section 12.15.
    	
Table of Contents,   Headings, Etc.
    	
90
    
	
Section 12.16.
    	
Withholding Taxes
    	
90
    
	
 
    	
 
    	
 
    
	
Exhibits
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Exhibit A:   Form of Note
    	
A-1
    
	
 
    	
 
    
	
Exhibit B-1:   Form of Restricted Note Legend
    	
B-1
    


 

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Exhibit B-2:   Form of Global Note Legend
    	
B-1
    
	
 
    	
 
    
	
Exhibit B-3:   Form of Non-Affiliate Legend
    	
B-1
    


 

iv











 

INDENTURE, dated as of May 24, 2018, between NRG Energy, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantors (as defined herein), as guarantors, and Delaware Trust Company, as trustee (the “Trustee”).

 

Each party to this Indenture (as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined below) of the Company’s 2.75% Convertible Senior Notes due 2048 (the “Notes”).

 

Article 1.               DEFINITIONS; RULES OF CONSTRUCTION

 

Section 1.01.        DEFINITIONS.

 

“Additional Interest” means any interest that accrues on any Note pursuant to Section 3.04.

 

“Affiliate” has the meaning set forth in Rule 144 as in effect on the Issue Date.

 

“Authorized Denomination” means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof.

 

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

 

“Bid Solicitation Agent” means the Person who is required to obtain bids for the Trading Price in accordance with Section 5.01(C)(i)(2) and the definition of “Trading Price.”  The initial Bid Solicitation Agent on the Issue Date will be the Company; provided, however, that the Company may appoint any other Person (including itself or any of its Subsidiaries) to be the Bid Solicitation Agent at any time after the Issue Date without prior notice.

 

“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.

 

“Business Day” means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

 

“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP, and the stated maturity thereof is the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

 

“Capital Stock” of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into such equity.

 

“Close of Business” means 5:00 p.m., New York City time.

 

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“Common Stock” means the common stock, $0.01 par value per share, of the Company, subject to Section 5.08.

 

“Company” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.

 

“Company Order” means a written request or order signed on behalf of the Company by one (1) of its Officers.

 

“Conversion Date” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied.

 

“Conversion Price” means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.

 

“Conversion Rate” initially means 20.9479 shares of Common Stock per $1,000 principal amount of Notes; provided, however, that the Conversion Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of Business on such date.

 

“Conversion Share” means any share of Common Stock issued or issuable upon conversion of any Note.

 

“Credit Agreement” means the Second Amended and Restated Credit Agreement, dated June 30, 2016, among the Company, the lenders party thereto, Citicorp North America, Inc., as administrative agent and collateral agent, and various other parties acting as joint bookrunner, joint lead arranger or in various agency capacities, as the same may be amended, restated, modified, renewed, refunded, replaced or refinanced from time to time.

 

“Daily Cash Amount” means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion Value for such VWAP Trading Day.

 

“Daily Conversion Value” means, with respect to any VWAP Trading Day, one-30th (1/30th) of the product of (A) the Conversion Rate on such VWAP Trading Day; and (B) the Daily VWAP per share of Common Stock on such VWAP Trading Day.

 

“Daily Maximum Cash Amount” means, with respect to the conversion of any Note, the quotient obtained by dividing (A) the Specified Dollar Amount applicable to such conversion by (B) thirty (30).

 

“Daily Share Amount” means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the Daily Conversion Value for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP

 

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Trading Day.  For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum Cash Amount.

 

“Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “NRG <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company, which may include any of the Initial Purchasers).  The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session.

 

“Default” means any event that is (or, after notice, passage of time or both, would be) an Event of Default.

 

“Default Settlement Method” means Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes; provided, however, that the Company may, from time to time, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent.

 

“Depositary” means The Depository Trust Company or its successor.

 

“Depositary Participant” means any member of, or participant in, the Depositary.

 

“Depositary Procedures” means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.

 

“Ex-Dividend Date” means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange).  For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.

 

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

 

“Free Trade Date” means, with respect to any Note, the date that is one (1) year after the Last Original Issue Date of such Note.

 

“Freely Tradable” means, with respect to any Note, that such Note (A) would be eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise if held by a Person that is not an Affiliate of the Company, and that has not been an Affiliate of the Company during

 

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the immediately preceding three (3) months, without any requirements as to volume, manner of sale, availability of current public information or notice under the Securities Act (except that, during the six (6) month period beginning on, and including, the date that is six (6) months after the Last Original Issue Date of such Note, any such requirement as to the availability of current public information will be disregarded if the same is satisfied at that time); (B) is not identified by a “restricted” CUSIP or ISIN number at any time after the Free Trade Date of such Note; and (C) is not represented by any certificate that bears the Restricted Note Legend at any time after the Free Trade Date of such Note.  For the avoidance of doubt, whether a Note is deemed to be identified by a “restricted” CUSIP or ISIN number or to bear the Restricted Note Legend is subject to Section 2.12.

 

“Fundamental Change” means any of the following events:

 

(A)          a “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act (but excluding (i) any employee benefit plan of the Company or its Subsidiaries and (ii) any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan, but solely in such person’s capacity as such; and (iii) the Company or its Subsidiaries) files any report with the SEC indicating that such person or group has become the direct or indirect “beneficial owner” (as defined below) of shares of the Company’s common equity representing more than fifty percent (50%) of the voting power of all of the Company’s then-outstanding common equity;

 

(B)          the consummation of (i) any sale, lease, assignment, transfer conveyance or other disposition, in one transaction or a series of transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than (x) solely to one or more of the Company’s Wholly Owned Subsidiaries; (y) any employee benefit plan of the Company or its Subsidiaries or any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan, but solely in such person’s capacity as such; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Company pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);

 

(C)          the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or

 

(D)          the Common Stock ceases to be listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors);

 

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provided, however, that a transaction or event described in clause (A) or (B) above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of common stock listed (or depositary receipts representing shares of common stock, which depositary receipts are listed) on any of The New York Stock Exchange, The NYSE American, The NASDAQ Capital Market, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors), or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes a Common Stock Change Event whose Reference Property consists of such consideration.

 

For the purposes of this definition, (x) any transaction or event described in both clause (A) and in clause (B)(i) or (ii) above (without regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject to such proviso); and (y) whether a Person is a “beneficial owner,” whether shares are “beneficially owned,” and percentage beneficial ownership, will be determined in accordance with Rule 13d-3 under the Exchange Act.

 

For the avoidance of doubt, a merger or other business combination transaction effected to change our jurisdiction of incorporation and that satisfies the proviso immediately following clause (D) above will constitute neither a Fundamental Change nor a Make-Whole Fundamental Change.

 

“Fundamental Change Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental Change.

 

“Fundamental Change Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section 4.02(F)(i) and Section 4.02(F)(ii).

 

“Fundamental Change Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 4.02(D).

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that if any operating lease would be recharacterized as a capital lease due to changes in the accounting treatment of such operating leases under GAAP since the date the notes are first issued, then, solely with respect to the accounting treatment of any such lease, GAAP will be interpreted as it was in effect on the Issue Date.

 

“Global Note” means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for

 

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the Depositary.

 

“Global Note Legend” means a legend substantially in the form set forth in Exhibit B-2.

 

“Guarantee” means the guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes pursuant to Article 9.

 

“Guarantor” means the Persons named as such on the signature page herein of this Indenture and, subject to Section 9.04, the successors and assigns of the foregoing.

 

“Hedging Obligations” means, with respect to any specified person, the obligations of such person under:

 

(A)          currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and

 

(B)          (i) agreements or arrangements designed to protect such person against fluctuations in currency exchange, interest rates, commodity prices or commodity transportation or transmission pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel purchase and sale agreements, swaps, options and other agreements, in each case, that fluctuate in value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for commercial or trading activities with respect to the purchase, transmission, distribution, sale, lease or hedge of any energy related commodity or service.

 

“Holder” means a person in whose name a Note is registered in the Register.

 

“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables, except as provided in clause (E) below, and surety bonds), whether or not contingent:

 

(A)          in respect of borrowed money;

 

(B)          evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

(C)          in respect of banker’s acceptances;

 

(D)          representing Capital Lease Obligations in respect of sale and leaseback transactions;

 

(E)           representing the balance of deferred and unpaid purchase price of any property or services with a scheduled due date more than six months after such property is acquired or such services are completed; or

 

(F)           representing the net amount owing under any Hedging Obligations,

 

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if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.

 

In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified person (whether or not such Indebtedness is assumed by the specified person) and, to the extent not otherwise included, the guarantee by the specified person of any Indebtedness of any other person; provided that the amount of such Indebtedness will be deemed not to exceed the lesser of the amount secured by such Lien and the value of the Person’s property securing such Lien.

 

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

 

“Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Agricole Securities (USA) Inc., Credit Suisse Securities (USA) LLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Barclays Capital Inc., MUFG Securities Americas Inc. and Natixis Securities Americas LLC.

 

“Interest Payment Date” means, with respect to a Note, each June 1 and December 1 of each year, commencing on December 1, 2018 (or such other date specified in the certificate representing such Note).  For the avoidance of doubt the Maturity Date is an Interest Payment Date.

 

“Issue Date” means May 24, 2018.

 

“Last Original Issue Date” means (A) with respect to any Notes issued pursuant to the Purchase Agreement, and any Notes issued in exchange therefor or in substitution thereof, the Issue Date; and (B) with respect to any Notes issued pursuant to Section 2.03(B), and any Notes issued in exchange therefor or in substitution thereof, either (i) the later of (x) the date such Notes are originally issued and (y) the last date any Notes are originally issued as part of the same offering pursuant to the exercise of an option granted to the initial purchaser(s) of such Notes to purchase additional Notes; or (ii) such other date as is specified in an Officer’s Certificate delivered to the Trustee before the original issuance of such Notes.

 

“Last Reported Sale Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed.  If the Common Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization.  If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such Trading Day

 

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from a nationally recognized independent investment banking firm selected by the Company, which may include any of the Initial Purchasers.  Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price.

 

“Lien” means, with respect to any asset:

 

(A)          any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance, restriction, collateral assignment, charge or security interest in, on or of such asset;

 

(B)          the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; and

 

(C)          in the case of equity interests or debt securities, any purchase option, call or similar right of a third party with respect to such equity interests or debt securities.

 

“Make-Whole Fundamental Change” means a Fundamental Change (determined after giving effect to the proviso immediately after clause (D) of the definition thereof, but without regard to the proviso to clause (B)(ii) of the definition thereof).

 

“Make-Whole Fundamental Change Conversion Period” means, with respect to a Make-Whole Fundamental Change, the period from, and including, the effective date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such effective date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date).

 

“Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock.

 

“Maturity Date” means June 1, 2048.

 

“Non-Affiliate Legend” means a legend substantially in the form set forth in Exhibit B-3.

 

“Non-Recourse Debt” means Indebtedness as to which neither the Company nor any of the Guarantors is liable as a guarantor or otherwise.

 

“Note Agent” means any Registrar, Paying Agent or Conversion Agent.

 

“Notes” means the 2.75% Convertible Senior Notes due 2048 issued by the Company pursuant to this Indenture.

 

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

 

“Observation Period” means, with respect to any Note to be converted, (A) subject to clause (B) below, (x) if the Conversion Date for such Note occurs on or after December 1, 2024 and on or before the second Scheduled Trading Day immediately before June 1, 2025, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the thirty-first (31st) Scheduled Trading Day immediately before June 1, 2025; and (y) if such Conversion Date occurs on or after December 1, 2047, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the 31st Scheduled Trading Day immediately before the Maturity Date; (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption Notice calling any Notes for Redemption and before the related Redemption Date, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the thirty first (31st) Scheduled Trading Day immediately before such Redemption Date; and (C) in all other cases, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP Trading Day immediately after such Conversion Date.

 

“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any Vice-President of the Company.

 

“Officer’s Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements of Section 12.03.

 

“Open of Business” means 9:00 a.m., New York City time.

 

“Opinion of Counsel” means an opinion, from legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) reasonably acceptable to the Trustee, that meets the requirements of Section 12.03, subject to customary qualifications and exclusions.

 

“Optional Repurchase” means the repurchase of any Note by the Company pursuant to Section 4.03.

 

“Optional Repurchase Notice” means a notice (including a notice substantially in the form of the “Optional Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section 4.03(E)(i) and Section 4.03(E)(ii).

 

“Optional Repurchase Price” means, with respect to a Note (or any portion thereof) to be repurchased upon an Optional Repurchase Date, an amount in cash equal to 100% of the principal amount of such Note (or such portion thereof), plus accrued and unpaid interest thereon to, but excluding, such Optional Repurchase Date.

 

“Person” or “person” means any individual, corporation, partnership, limited liability

 

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company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.

 

“Physical Note” means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.

 

“Purchase Agreement” means that certain Purchase Agreement, dated May 21, 2018, between the Company and the representative of the Initial Purchasers.

 

“Redemption” means the repurchase of any Note by the Company pursuant to Section 4.04.

 

“Redemption Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Redemption.

 

“Redemption Notice Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.04(F).

 

“Redemption Price” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.04(E).

 

“Regular Record Date” has the following meaning with respect to an Interest Payment Date: (A) if such Interest Payment Date occurs on June 1, the immediately preceding May 15; and (B) if such Interest Payment Date occurs on December 1, the immediately preceding November 15.

 

“Repurchase Upon Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.

 

“Responsible Officer” means (A) any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of such officers; and (B) with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of, and familiarity with, the particular subject.

 

“Restricted Note Legend” means a legend substantially in the form set forth in Exhibit B-1.

 

“Restricted Stock Legend” means, with respect to any Conversion Share, a legend substantially to the effect that the offer and sale of such Conversion Share have not been registered under the Securities Act and that such Conversion Share cannot be sold or otherwise transferred except pursuant to a transaction that is registered under the Securities Act or that is exempt from, or not subject to, the registration requirements of the Securities Act.

 

“Rule 144” means Rule 144 under the Securities Act (or any successor rule thereto), as the

 

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same may be amended from time to time.

 

“Rule 144A” means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

 

“Scheduled Trading Day” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded.  If the Common Stock is not so listed or traded, then “Scheduled Trading day” means a Business Day.

 

“SEC” means the U.S. Securities and Exchange Commission.

 

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

 

“Security” means any Note or Conversion Share.

 

“Settlement Method” means Cash Settlement, Physical Settlement or Combination Settlement.

 

“Significant Subsidiary” means, with respect to any Person, any Subsidiary of such Person that constitutes a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Securities Act) of such Person.

 

“Special Interest” means any interest that accrues on any Note pursuant to Section 7.03.

 

“Specified Dollar Amount” means, with respect to the conversion of a Note to which Combination Settlement applies, the maximum cash amount per $1,000 principal amount of such Note deliverable upon such conversion (excluding cash in lieu of any fractional share of Common Stock).

 

“Stock Price” has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration for their shares of Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (B) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale Prices per share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the effective date of such Make-Whole Fundamental Change.

 

“Subsidiary” means, with respect to any Person, (A) any corporation, association or other business entity of which more than fifty percent (50%) of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of

 

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the other Subsidiaries of that Person (or a combination thereof); and (B) any partnership (x) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person; or (y) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

 

“Total Assets” means the total consolidated assets of the Company and its  subsidiaries determined on a consolidated basis in accordance with GAAP, as shown on most recent balance sheet of the Company.

 

“Trading Day” means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption Event.  If the Common Stock is not so listed or traded, then “Trading Day” means a Business Day.

 

“Trading Price” of the Notes on any Trading Day means the average of the secondary market bid quotations, expressed as a cash amount per $1,000 principal amount of Notes, obtained by the Bid Solicitation Agent for two million dollars ($2,000,000) (or such lesser amount as may then be outstanding) in principal amount of Notes at approximately 3:30 p.m., New York City time, on such Trading Day from three (3) nationally recognized independent securities dealers selected by the Company, which may include any of the Initial Purchasers; provided, however, that, if three (3) such bids cannot reasonably be obtained by the Bid Solicitation Agent but two (2) such bids are obtained, then the average of the two (2) bids will be used, and if only one (1) such bid can reasonably be obtained by the Bid Solicitation Agent, then that one (1) bid will be used.  If, on any Trading Day, (A) the Bid Solicitation Agent cannot reasonably obtain at least one (1) bid for two million dollars ($2,000,000) (or such lesser amount as may then be outstanding) in principal amount of Notes from a nationally recognized independent securities dealer; (B) the Company is not acting as the Bid Solicitation Agent and the Company fails to instruct the Bid Solicitation Agent to obtain bids when required; or (C) the Bid Solicitation Agent fails to solicit bids when required, then, in each case, the Trading Price per $1,000 principal amount of Notes on such Trading Day will be deemed to be less than ninety -eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day.

 

“Transfer-Restricted Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided, however, that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:

 

(A)                               such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such sale or transfer;

 

(B)                               such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a

 

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“restricted security” (as defined in Rule 144); and

 

(C)                               such Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale, availability of current public information or notice.

 

The Trustee is under no obligation to determine, and will have no liability in connection with any determination of, whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s Certificate with respect thereto.

 

“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.

 

“Trustee” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means such successor.

 

“VWAP Market Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.

 

“VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded.  If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.

 

“Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.

 

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Section 1.02.                         OTHER DEFINITIONS.

 

	
Term
    	
 
    	
Defined in
   Section
    
	
“Additional   Shares”
    	
 
    	
5.07(A)
    
	
“Business   Combination Event”
    	
 
    	
6.01(A)
    
	
“Cash   Settlement”
    	
 
    	
5.03(A)
    
	
“Combination   Settlement”
    	
 
    	
5.03(A)
    
	
“Common   Stock Change Event”
    	
 
    	
5.08(A)
    
	
“Conversion   Agent”
    	
 
    	
2.06(A)
    
	
“Conversion   Consideration”
    	
 
    	
Section   5.03(B)
    
	
“Dividend   Threshold”
    	
 
    	
5.05(A)(iv)
    
	
“Default   Interest”
    	
 
    	
2.05(B)
    
	
“Defaulted   Amount”
    	
 
    	
2.05(B)
    
	
“Event of   Default”
    	
 
    	
7.01(A)
    
	
“Expiration   Date”
    	
 
    	
5.05(A)(v)
    
	
“Expiration   Time”
    	
 
    	
5.05(A)(v)
    
	
“Fundamental   Change Notice”
    	
 
    	
4.02(E)
    
	
“Fundamental   Change Repurchase Right”
    	
 
    	
4.02(A)
    
	
“Guaranteed   Obligations”
    	
 
    	
Section   9.01(A)
    
	
“Guarantor   Business Combination Event”
    	
 
    	
9.04(A)
    
	
“Initial   Notes”
    	
 
    	
2.03(A)
    
	
“Measurement   Period”
    	
 
    	
5.01(C)(i)(2)
    
	
“Optional   Repurchase Date”
    	
 
    	
4.03(A)
    
	
“Optional   Repurchase Date Notice”
    	
 
    	
4.03(D)
    
	
“Optional   Repurchase Right”
    	
 
    	
4.03(A)
    
	
“Paying   Agent”
    	
 
    	
2.06(A)
    
	
“Physical   Settlement”
    	
 
    	
5.03(A)
    
	
“Redemption   Notice”
    	
 
    	
4.04(F)
    
	
“Reference   Property”
    	
 
    	
5.08(A)
    
	
“Reference   Property Unit”
    	
 
    	
5.08(A)
    
	
“Register”
    	
 
    	
2.06(B)
    
	
“Registrar”
    	
 
    	
2.06(A)
    
	
“Reporting Event   of Default”
    	
 
    	
7.03(A)
    
	
“Specified   Courts”
    	
 
    	
12.07
    
	
“Spin-Off”
    	
 
    	
5.05(A)(iii)(2)
    
	
“Spin-Off   Valuation Period”
    	
 
    	
5.05(A)(iii)(2)
    
	
“Stated   Interest”
    	
 
    	
2.05(A)
    
	
“Successor   Corporation”
    	
 
    	
6.01(A)
    
	
“Successor   Guarantor”
    	
 
    	
9.04(A)(i)
    
	
“Successor   Person”
    	
 
    	
5.08(A)
    
	
“Tender/Exchange   Offer Valuation Period”
    	
 
    	
5.05(A)(v)
    
	
“Trading   Price Condition”
    	
 
    	
5.01(C)(i)(2)
    


 

Section 1.03.                         RULES OF CONSTRUCTION.

 

For purposes of this Indenture:

 

(A)                               “or” is not exclusive;

 

(B)                               “including” means “including without limitation”;

 

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(C)                               “will” expresses a command;

 

(D)                               the “average” of a set of numerical values refers to the arithmetic average of such numerical values;

 

(E)                                words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;

 

(F)                                 “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;

 

(G)                               references to currency mean the lawful currency of the United States of America, unless the context requires otherwise;

 

(H)                              the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture; and

 

(I)                                   the term “interest,” when used with respect to a Note, includes any Additional Interest and Special Interest, unless the context requires otherwise.

 

Article 2.     THE NOTES

 

Section 2.01.                         FORM, DATING AND DENOMINATIONS.

 

The Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A.  The Notes will bear the legends required by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary.  Each Note will be dated as of the date of its authentication.

 

Except to the extent otherwise provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will be issued initially in the form of one or more Global Notes.  Global Notes may be exchanged for Physical Notes, and Physical Notes may be exchanged for Global Notes, only as provided in Section 2.10.

 

The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.

 

Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.

 

The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.

 

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Section 2.02.                         EXECUTION, AUTHENTICATION AND DELIVERY.

 

(A)                               Due Execution by the Company.  At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual or facsimile signature.  A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.

 

(B)                               Authentication by the Trustee and Delivery.

 

(i)                                     No Note will be valid until it is authenticated by the Trustee.  A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.

 

(ii)                                  The Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually sign the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated.  If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly deliver such Note in accordance with such Company Order.

 

(iii)                               The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes.  A duly appointed authenticating agent may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee.  Each duly appointed authenticating agent will have the same rights to deal with Holders or the Company as the Trustee would have if it were performing the duties that the authentication agent was validly appointed to undertake.

 

Section 2.03.                         INITIAL NOTES AND ADDITIONAL NOTES.

 

(A)                               Initial Notes.  On the Issue Date, there will be originally issued five hundred seventy five million dollars ($575,000,000) aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section 2.02).  Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”

 

(B)                               Additional Notes.  The Company may, subject to the provisions of this Indenture (including Section 2.02), originally issue additional Notes with the same terms as the initial Notes (except, to the extent applicable, with respect to the date as of which interest begins to accrue on such additional Notes and the first Interest Payment Date and the Last Original Issue Date of such additional Notes), which additional Notes will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture; provided, however, that if any such additional Notes are not fungible with other Notes issued under this Indenture for federal income tax or federal securities laws purposes, then such additional Notes

 

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will be identified by a separate CUSIP number or by no CUSIP number.

 

Section 2.04.                         METHOD OF PAYMENT.

 

(A)                               Global Notes.  The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date, Optional Repurchase on an Optional Repurchase Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later than the time the same is due as provided in this Indenture.

 

(B)                               Physical Notes.  The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date, Optional Repurchase on an Optional Repurchase Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register.  To be timely, such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date and (y) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.

 

Section 2.05.                         ACCRUAL OF INTEREST; DEFAULTED AMOUNTS; WHEN PAYMENT DATE IS NOT A BUSINESS DAY.

 

(A)                               Accrual of Interest.  Each Note will accrue interest at a rate per annum equal to 2.75% (the “Stated Interest”), plus any Additional Interest and Special Interest that may accrue pursuant to Sections 3.04 and 7.03, respectively.  Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest; and (ii) be, subject to Sections 4.02(D), 4.04(E) and 5.02(D) (but without duplication of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date.  Stated Interest, and, if applicable, Additional Interest and Special Interest, on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

(B)                               Defaulted Amounts.  If the Company fails to pay any amount (a “Defaulted

 

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Amount”) payable on a Note on or before the due date therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment; (ii) to the extent lawful, interest (“Default Interest”) will accrue on such Defaulted Amount at a rate per annum equal to the rate per annum at which Stated Interest accrues, from, and including, such due date to, but excluding, the date of payment of such Defaulted Amount and Default Interest; (iii) such Defaulted Amount and Default Interest will be paid on a payment date selected by the Company to the Holder of such Note as of the Close of Business on a special record date selected by the Company, provided that such special record date must be no more than fifteen (15), nor less than ten (10), calendar days before such payment date; and (iv) at least ten (10) calendar days before such special record date, the Company will send notice to the Trustee and the Holders that states such special record date, such payment date and the amount of such Defaulted Amount and Default Interest to be paid on such payment date.

 

(C)                               Delay of Payment when Payment Date is Not a Business Day.  If the due date for a payment on a Note as provided in this Indenture is not a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately following Business Day and no interest will accrue on such payment as a result of the related delay.  Solely for purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business Day.”

 

Section 2.06.                         REGISTRAR, PAYING AGENT AND CONVERSION AGENT.

 

(A)                               Generally.  The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where Notes may be presented for payment (the “Paying Agent”); and (iii) an office or agency in the continental United States where Notes may be presented for conversion (the “Conversion Agent”).  If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such.  For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.

 

(B)                               Duties of the Registrar.  The Registrar will keep a record (the “Register”) of the names and addresses of the Holders, the Notes held by each Holder and the transfer, exchange, repurchase, Redemption and conversion of Notes.  Absent manifest error, the entries in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the Register as a Holder for all purposes.  The Register will be in written form or in any form capable of being converted into written form reasonably promptly.

 

(C)                               Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents.  The Company may appoint one or more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable, under this Indenture.  Subject to Section 2.06(A), the Company may change any Registrar, Paying Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder.  The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any,

 

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not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent.

 

(D)                               Initial Appointments.  The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent.

 

Section 2.07.                         PAYING AGENT AND CONVERSION AGENT TO HOLD PROPERTY IN TRUST.

 

The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery.  The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property.  If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively.  Upon the occurrence of any event pursuant to in clause (ix) or (x) of Section 7.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.

 

Section 2.08.                         HOLDER LISTS.

 

If the Trustee is not the Registrar, the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date, and at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the names and addresses of the Holders.

 

Section 2.09.                         LEGENDS.

 

(A)                               Global Note Legend.  Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required by the Depositary for such Global Note).

 

(B)                               Non-Affiliate Legend.  Each Note will bear the Non-Affiliate Legend.

 

(C)                               Restricted Note Legend.  Subject to Section 2.12,

 

(i)                                     each Note that is a Transfer-Restricted Security will bear the Restricted

 

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Note Legend; and

 

(ii)                                  if a Note is issued in exchange for, in substitution of, or to effect a partial conversion of, another Note (such other Note being referred to as the “old Note” for purposes of this Section 2.09(C)(ii)), including pursuant to Section 2.10(B), 2.10(C), 2.11 or 2.13, such Note will bear the Restricted Note Legend if such old Note bore the Restricted Note Legend at the time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as applicable; provided, however, that such Note need not bear the Restricted Note Legend if such Note does not constitute a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Conversion Date, as applicable.

 

(D)                               Other Legends.  A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such Note is traded or quoted.

 

(E)                                Acknowledgement and Agreement by the Holders.  A Holder’s acceptance of any Note bearing any legend required by this Section 2.09 will constitute such Holder’s acknowledgement of, and agreement to comply with, the restrictions set forth in such legend.

 

(F)                                 Restricted Stock Legend.

 

(i)                                     Each Conversion Share will bear the Restricted Stock Legend if the Note upon the conversion of which such Conversion Share was issued was (or would have been had it not been converted) a Transfer-Restricted Security at the time such Conversion Share was issued; provided, however, that such Conversion Share need not bear the Restricted Stock Legend if the Company determines, in its reasonable discretion, that such Conversion Share need not bear the Restricted Stock Legend.

 

(ii)                                  Notwithstanding anything to the contrary in this Section 2.09(F), a Conversion Share need not bear a Restricted Stock Legend if such Conversion Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to enforce the transfer restrictions referred to in the Restricted Stock Legend.

 

Section 2.10.                         TRANSFERS AND EXCHANGES; CERTAIN TRANSFER RESTRICTIONS.

 

(A)                               Provisions Applicable to All Transfers and Exchanges.

 

(i)                                     Subject to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time and the Registrar will record each such transfer or exchange in the Register.

 

(ii)                                  Each Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes of this Section 2.10(A)(ii)) or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same indebtedness, and entitled to the same benefits under this Indenture,

 

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as such old Note or portion thereof, as applicable.

 

(iii)                               The Company, the Guarantors, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Guarantors, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Sections 2.11, 2.17 or 8.05 not involving any transfer.

 

(iv)                              Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination.

 

(v)                                 The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to form with the requirements of this Indenture.

 

(vi)                              Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.

 

(vii)                           Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of such satisfaction.

 

(viii)                        For the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section 2.10, an “exchange” of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend affixed to such Global Note or Physical Note; and (y) if such Global Note or a Physical Note is identified by a “restricted” CUSIP number, an exchange effected for the sole purpose of causing such Global Note or a Physical Note to be identified by an “unrestricted” CUSIP number.

 

(ix)                              Notwithstanding anything in this Indenture to the contrary, neither the Trustee nor the Registrar will have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer or exchange imposed under this Indenture or under applicable law with respect to any transfer or exchange of any interest in any Note (including any transfers between or among Depositary Participants or indirect Depositary Participants) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture.

 

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(B)                               Transfers and Exchanges of Global Notes.

 

(i)                                     Subject to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by the Depositary to a nominee of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  No Global Note (or any portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:

 

(1)                                 (x) the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;

 

(2)                                 an Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest, as applicable, for one or more Physical Notes; or

 

(3)                                 the Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest.

 

(ii)                                  Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):

 

(1)                                 the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal amount of zero, the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant to Section 2.15);

 

(2)                                 if required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note;

 

(3)                                 if required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.09; and

 

(4)                                 if such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that are in Authorized Denominations (not to exceed, in the aggregate, the principal amount of such Global Note to be so exchanged), are registered in such name(s) as the Depositary specifies (or as otherwise determined

 

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pursuant to customary procedures) and bear each legend, if any, required by Section 2.09.

 

(iii)                               Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.

 

(C)                               Transfers and Exchanges of Physical Notes.

 

(i)                                     Subject to this Section 2.10, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must:

 

(1)                                 surrender such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar; and

 

(2)                                 deliver such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).

 

(ii)                                  Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion of such old Physical Note in an Authorized Denomination):

 

(1)                                 such old Physical Note will be promptly cancelled pursuant to Section 2.15;

 

(2)                                 if such old Physical Note is to be transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;

 

(3)                                 in the case of a transfer:

 

(a)                                 to the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred,

 

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and which Global Note(s) bear each legend, if any, required by Section 2.09; provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section 2.09; and

 

(b)                                 to a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section 2.09; and

 

(4)                                 in the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section 2.09.

 

(D)                               Requirement to Deliver Documentation and Other Evidence.  If a Holder of any Note that is identified by a “restricted” CUSIP number or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:

 

(i)                                     cause such Note to be identified by an “unrestricted” CUSIP number;

 

(ii)                                  remove such Restricted Note Legend; or

 

(iii)                               register the transfer of such Note to the name of another Person,

 

then the Company, the Guarantors, the Trustee and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Guarantors, the Trustee and the Registrar such certificates or other documentation or evidence as the Company, the Guarantors, the Trustee and the Registrar may reasonably require to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable securities laws; provided, however, that no such certificates, documentation or evidence need be so delivered on and after the Free Trade Date with respect to such Note unless the Company determines, in its reasonable discretion, that such Note is not eligible to be offered,

 

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sold or otherwise transferred pursuant to Rule 144 or otherwise without any requirements as to volume, manner of sale, availability of current public information or notice under the Securities Act.

 

(E)                                Transfers of Notes Subject to Redemption, Repurchase or Conversion.  Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Guarantors, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that (i) has been surrendered for conversion, except to the extent that any portion of such Note is not subject to conversion; (ii) is subject to a Fundamental Change Repurchase Notice or Optional Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F) or 4.03(E), respectively, except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental Change Repurchase Price or Optional Repurchase Price, as applicable, when due; or (iii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that any portion of such Note is not subject to Redemption or the Company fails to pay the applicable Redemption Price when due.

 

Section 2.11.                         EXCHANGE AND CANCELLATION OF NOTES TO BE CONVERTED, REDEEMED OR REPURCHASED.

 

(A)                               Partial Conversions, Redemptions and Repurchases of Physical Notes.  If only a portion of a Physical Note of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, Optional Repurchase or Redemption, then, as soon as reasonably practicable after such Physical Note is surrendered for such conversion, redemption or repurchase, the Company will cause such Physical Note to be exchanged, pursuant and subject to Section 2.10(C), for (i) one or more Physical Notes that are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted, redeemed or repurchased, as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the principal amount to be so converted, redeemed or repurchased, as applicable, which Physical Note will be converted, redeemed or repurchased, as applicable, pursuant to the terms of this Indenture; provided, however, that the Physical Note referred to in this clause (ii) need not be issued at any time after which such principal amount subject to such conversion, Redemption or repurchase, as applicable, is deemed to cease to be outstanding pursuant to Section 2.18.

 

(B)                               Cancellation of Converted, Redeemed and Repurchased  Notes.

 

(i)                                     Physical Notes.  If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.11(A)) of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, Optional Repurchase or Redemption, then, promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.18 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.15; and (2) in the case of a partial conversion, Redemption or repurchase, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of

 

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such Physical Note that is not to be so converted, redeemed or repurchased; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09.

 

(ii)                                  Global Notes.  If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, Optional Repurchase or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.18, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted, redeemed or repurchased, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section 2.15).

 

Section  2.12.                         REMOVAL OF TRANSFER RESTRICTIONS.

 

Without limiting the generality of any other provision of this Indenture (including Section 3.04), the Restricted Note Legend affixed to any Note will be deemed, pursuant to this Section 2.12 and the footnote to such Restricted Note Legend, to be removed therefrom upon the Company’s delivery to the Trustee of an Officer’s Certificate to such effect (and, for the avoidance of doubt, such Officer’s Certificate need not be accompanied by an Opinion of Counsel in order to be effective to cause such Restricted Note Legend to be deemed to be removed from such Note).  If such Note bears a “restricted” CUSIP or ISIN number at the time of such delivery, then, upon such delivery, such Note will be deemed, pursuant to this Section 2.12 and the footnotes to the CUSIP and ISIN numbers set forth on the face of the certificate representing such Note, to thereafter bear the “unrestricted” CUSIP and ISIN numbers identified in such footnotes; provided, however, that if such Note is a Global Note and the Depositary thereof requires a mandatory exchange or other procedure to cause such Global Note to be identified by “unrestricted” CUSIP and ISIN numbers in the facilities of such Depositary, then (i) the Company will effect such exchange or procedure as soon as reasonably practicable; and (ii) for purposes of Section 3.04 and the definition of Freely Tradable, such Global Note will not be deemed to be identified by “unrestricted” CUSIP and ISIN numbers until such time as such exchange or procedure is effected.

 

Section 2.13.                         REPLACEMENT NOTES.

 

If a Holder of any Note claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee and the Company.  In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the Holder thereof to provide such security or indemnity that is reasonably satisfactory to the Company and the Trustee to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced.   The Company may charge for its expenses in replacing a Note.

 

Every replacement Note issued pursuant to this Section 2.13 will be an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and

 

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ratably with all other Notes issued under this Indenture.

 

Section 2.14.                         REGISTERED HOLDERS; CERTAIN RIGHTS WITH RESPECT TO GLOBAL NOTES.

 

Only the Holder of a Note will have rights under this Indenture as the owner of such Note.  Without limiting the generality of the foregoing, Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Guarantors, the Trustee and the Note Agents, and their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or other authorization furnished by the Depositary.

 

Section 2.15.                         CANCELLATION.

 

Without limiting the generality of Section 3.08, the Company may at any time deliver Notes to the Trustee for cancellation.  The Registrar, the Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment or conversion.  The Trustee will promptly cancel all Notes so surrendered to it upon receipt of an order from the Company.  Without limiting the generality of Section 2.03(B), the Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.

 

Section 2.16.                         NOTES HELD BY THE COMPANY OR ITS AFFILIATES.

 

Without limiting the generality of Section 3.08, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any of its Affiliates will be deemed not to be outstanding; provided, however, that, for purposes of determining whether the Trustee is protected in relying on any such direction, waiver or consent, only Notes that the Trustee has received written notice from the Company certifying that the relevant Notes are owned by the Company or any of its Affiliates, will be so disregarded.

 

Section 2.17.                         TEMPORARY NOTES.

 

Until certificates representing Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, temporary Notes.  Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes.  Without unreasonable delay, The Company will prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes.  Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.

 

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Section 2.18.                         OUTSTANDING NOTES.

 

(A)                               Generally.  The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.15; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B), (C) or (D) of this Section 2.18.

 

(B)                               Replaced Notes.  If a Note is replaced pursuant to Section 2.13, then such Note will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “bona fide purchaser” under applicable law.

 

(C)                               Maturing Notes and Notes Called for Redemption or Subject to Repurchase.  If, on a Redemption Date, a Fundamental Change Repurchase Date, an Optional Repurchase Date or the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price, Optional Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest, in each case due on such date, then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Sections 4.02(D), 4.04(E) or 5.02(D); and (ii) the rights of the Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price, Optional Repurchase Price or principal amount, as applicable, of, and accrued and unpaid interest on, such Notes (or such portions thereof), in each case as provided in this Indenture.

 

(D)                               Notes to Be Converted.  At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(B) or Section 5.02(D), upon such conversion) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D).

 

(E)                                Cessation of Accrual of Interest.  Except as provided in Sections 4.02(D), 4.04(E) or 5.02(D), interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section 2.18, to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other property due on such Note.

 

Section 2.19.                         REPURCHASES BY THE COMPANY.

 

Without limiting the generality of Section 2.15, the Company may, from time to time, repurchase Notes in open market purchases or in negotiated transactions without delivering prior notice to Holders.

 

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Section 2.20.                         CUSIP AND ISIN NUMBERS.

 

Subject to Section 2.12, the Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that (i) the Trustee makes no representation as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number.  The Company will promptly notify the Trustee of any change in the CUSIP or ISIN number(s) identifying any Notes.

 

Article 3.                                            COVENANTS

 

Section 3.01.                         PAYMENT ON NOTES.

 

(A)                               Generally.  The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price, Redemption Price and Optional Repurchase Price for, interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.

 

(B)                               Deposit of Funds.  Before 11:00 A.M., New York City time, on each Fundamental Change Repurchase Date, Redemption Date, Optional Repurchase Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date.  The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.

 

Section 3.02.                         EXCHANGE ACT REPORTS.

 

(A)                               Generally.  The Company will send to the Trustee copies of all reports that the Company is required to file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to so file or furnish the same (after giving effect to all applicable grace periods under the Exchange Act); provided, however, that the Company need not send to the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied, confidential treatment by the SEC.  Any report that the Company files with or furnishes to the SEC through the EDGAR system (or any successor thereto) will be deemed to be sent to the Trustee at the time such report is so filed or furnished via the EDGAR system (or such successor).  Upon the request of any Holder, the Trustee will provide to such Holder a copy of any report that the Company has sent the Trustee pursuant to this Section 3.02(A), other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence.

 

(B)                               Trustee’s Disclaimer.  The Trustee need not determine whether the Company has filed or furnished any material via the EDGAR system (or such successor).  The sending, filing or furnishing of reports pursuant to Section 3.02(A) will not be deemed to constitute constructive notice to the Trustee of any information contained, or determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture.

 

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Section 3.03.        RULE 144A INFORMATION.

 

If the Company is not subject to Section 13 or 15(d) of the Exchange Act at any time when any Notes or shares of Common Stock, if any, issuable upon conversion of the Notes are outstanding and constitute “restricted securities” (as defined in Rule 144(a)(3) under the Securities Act), then the Company (or its successor) will promptly provide, upon written request, to any Holder, beneficial owner or prospective purchaser of such Notes or shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares pursuant to Rule 144A under the Securities Act.  The Company (or its successor) will take such further action as any Holder or beneficial owner of such Notes or shares may reasonably request to enable such Holder or beneficial owner to sell such Notes or shares pursuant to Rule 144A under the Securities Act.

 

Section 3.04.        ADDITIONAL INTEREST.

 

(A)          Accrual of Additional Interest.

 

(i)            If, at any time during the six (6) month period beginning on, and including, the date that is six (6) months after the Last Original Issue Date of any Note,

 

(1)           the Company fails to timely file any report (other than Form 8-K reports) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect to all applicable grace periods thereunder); or

 

(2)           such Note is not otherwise Freely Tradable,

 

then Additional Interest will accrue on such Note for each day during such period on which such failure is continuing or such Note is not Freely Tradable.

 

(ii)           In addition, Additional Interest will accrue on a Note on each day on which such Note is not Freely Tradable on or after the fifteenth (15th) day after the Free Trade Date of such Note.

 

(B)          Amount and Payment of Additional Interest.  Any Additional Interest that accrues on a Note pursuant to Section 3.04(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof; provided, however, that in no event will Additional Interest, together with any Special Interest, accrue on any day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%).  For the avoidance of doubt, any Additional Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and, subject to the proviso of the immediately preceding sentence, in addition to any Special Interest that accrues on such Note.

 

(C)          Notice of Accrual of Additional Interest; Trustee’s Disclaimer.  The Company will send notice to the Holder of each Note, and to the Trustee, of the commencement and termination of any period in which Additional Interest accrues on such Note.  In addition, if Additional Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Additional Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee

 

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and the Paying Agent stating (i) that the Company is obligated to pay Additional Interest on such Note on such date of payment; and (ii) the amount of such Additional Interest that is payable on such date of payment.  The Trustee will have no duty to determine whether any Additional Interest is payable or the amount thereof.

 

(D)          Exclusive Remedy.  The accrual of Additional Interest will be the exclusive remedy available to Holders for the failure of their Notes to become Freely Tradable.

 

Section 3.05.        COMPLIANCE AND DEFAULT CERTIFICATES.

 

(A)          Annual Compliance Certificate.  Within ninety (90) days after December 31, 2018 and each fiscal year of the Company ending thereafter, the Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).

 

(B)          Default Certificate.  If a Default or Event of Default occurs, then the Company will promptly deliver an Officer’s Certificate to the Trustee describing the same and what action the Company is taking or proposes to take with respect thereto.

 

Section 3.06.        STAY, EXTENSION AND USURY LAWS.

 

To the extent that it may lawfully do so, the Company (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

Section 3.07.        CORPORATE EXISTENCE.

 

Subject to Article 6, the Company will cause to preserve and keep in full force and effect:

 

(A)          its corporate existence in accordance with the organizational documents (as the same may be amended from time to time) of the Company; and

 

(B)          the material rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries;

 

provided, however, that the Company will not be required to preserve or keep in full force and effect any such license or franchise if the Company determines that (x) the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole; and (y) the loss thereof is not, individually or in the aggregate, materially adverse to the

 

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Holders.

 

Section 3.08.        RESTRICTION ON ACQUISITION OF NOTES BY THE COMPANY AND ITS AFFILIATES.

 

The Company will promptly deliver to the Trustee for cancellation all Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired.  The Company will use commercially reasonable efforts to prevent any of its controlled Affiliates from acquiring any Note (or any beneficial interest therein), unless such Note is surrendered to the Trustee for cancellation.

 

Section 3.09.        FURTHER INSTRUMENTS AND ACTS.

 

At the Trustee’s request, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Indenture.

 

Article 4.               REPURCHASE AND REDEMPTION

 

Section 4.01.        NO SINKING FUND.

 

No sinking fund is required to be provided for the Notes.

 

Section 4.02.        RIGHT OF HOLDERS TO REQUIRE THE COMPANY TO REPURCHASE NOTES UPON A FUNDAMENTAL CHANGE.

 

(A)          Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change.  Subject to the other terms of this Section 4.02, if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.

 

(B)          Repurchase Prohibited in Certain Circumstances.  If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase Upon Fundamental Change (including as a result of the payment of the related Fundamental Change Repurchase Price, and any related interest pursuant to the proviso to Section 4.02(D), on such Fundamental Change Repurchase Date), then (i) the Company may not repurchase any Notes pursuant to this Section 4.02; and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).

 

(C)          Fundamental Change Repurchase Date.  The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 4.02(E).

 

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(D)          Fundamental Change Repurchase Price.  The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental Change following a Fundamental Change is an amount in cash equal to 100% of the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided, however, that if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase Upon Fundamental Change, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Fundamental Change Repurchase Date.  For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Fundamental Change Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Fundamental Change Repurchase Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date.

 

(E)           Fundamental Change Notice.  On or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change, the Company will send to each Holder, the Trustee and the Paying Agent (and to any beneficial owner of a Global Note, if required by applicable law) a notice of such Fundamental Change (a “Fundamental Change Notice”).

 

Such Fundamental Change Notice must state:

 

(i)            briefly, the events causing such Fundamental Change;

 

(ii)           the effective date of such Fundamental Change;

 

(iii)          the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;

 

(iv)          the Fundamental Change Repurchase Date for such Fundamental Change;

 

(v)           the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.02(D));

 

(vi)          the name and address of the Paying Agent and the Conversion Agent;

 

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(vii)         the Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.07);

 

(viii)        that Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent (in the case of certificated Notes) or the Depositary Procedures must be complied with (in the case of Global Notes) for the Holder of those Notes to be entitled to receive the Fundamental Change Repurchase Price;

 

(ix)          that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and

 

(x)           the CUSIP and ISIN numbers, if any, of the Notes.

 

Neither the failure to deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.

 

(F)           Procedures to Exercise the Fundamental Change Repurchase Right.

 

(i)            Delivery of Fundamental Change Repurchase Notice and Notes to Be Repurchased.  To exercise its Fundamental Change Repurchase Right for a Note following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:

 

(1)           before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and

 

(2)           such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).

 

The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.

 

(ii)           Contents of Fundamental Change Repurchase Notices.  Each Fundamental Change Repurchase Notice with respect to a Note must state:

 

(1)           if such Note is a Physical Note, the certificate number of such Note;

 

(2)           the principal amount of such Note to be repurchased, which must be an Authorized Denomination; and

 

(3)           that such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;

 

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provided, however, that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).

 

(iii)          Withdrawal of Fundamental Change Repurchase Notice.  A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date.  Such withdrawal notice must state:

 

(1)           if such Note is a Physical Note, the certificate number of such Note;

 

(2)           the principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and

 

(3)           the principal amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized Denomination;

 

provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).

 

Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section 2.11, treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).

 

(G)          Payment of the Fundamental Change Repurchase Price.  Without limiting the Company’s obligation to deposit the Fundamental Change Repurchase Price within the time proscribed by Section 3.01(B), the Company will cause the Fundamental Change Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder thereof on or before the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note).  For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(D) on any Note to be repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether such Note is

 

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delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(G).

 

(H)          Compliance with Applicable Securities Laws.  To the extent applicable, the Company will comply with all federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in this Indenture.

 

(I)            Repurchase in Part.  Subject to the terms of this Section 4.02, Notes may be repurchased pursuant to a Repurchase Upon Fundamental Change in part, but only in Authorized Denominations.  Provisions of this Section 4.02 applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note.

 

Section 4.03.        RIGHT OF HOLDERS TO REQUIRE THE COMPANY TO REPURCHASE NOTES ON THE OPTIONAL REPURCHASE DATES.

 

(A)          Right of Holders to Require the Company to Repurchase Notes on each Optional Repurchase Date.  Subject to the terms of this Section 4.03, each Holder will have the right (the “Optional Repurchase Right”) to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on each of September 1, 2025, June 1, 2033 and June 1, 2040 (each, an “Optional Repurchase Date”) for a cash repurchase price equal to the Optional Repurchase Price.  However, if the Optional Repurchase Date for a Note to be repurchased is after a regular Record Date and on or before the next Interest Payment Date, then (x) the Holder of such Note at the close of business on such regular Record Date will be entitled, notwithstanding such repurchase, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date; and (y) the Optional Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Optional Repurchase Date.  Notwithstanding anything to the contrary in this Section 4.03, the Company will not be required to offer or effect any Optional Repurchase, and Holders will not have an Optional Repurchase Right, if the Company has called all then-outstanding Notes for Redemption prior to the applicable Optional Repurchase Date.

 

(B)          Repurchase Prohibited in Certain Circumstances.  If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before an Optional Repurchase Date (including as a result of the payment of the related Optional Repurchase Price), then (i) the Company may not repurchase any Notes otherwise subject to Optional Repurchase on such Optional Repurchase Date pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore surrendered for such Optional Repurchase to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).

 

(C)          Payment of Interest Due on an Optional Repurchase Date.  For the avoidance of doubt, the Company’s repurchase of any Notes on an Optional Repurchase Date will not affect the Company’s obligation to pay the interest otherwise due on such Notes on such date to the Holders of such Notes at the Close of Business on the preceding Regular Record Date.

 

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(D)          Optional Repurchase Date Notice.  No later than twenty (20) Business Days before each Optional Repurchase Date, the Company will send to each Holder (and to any beneficial owner of a Global Note, if required by applicable law), the Trustee and the Paying Agent a notice (an “Optional Repurchase Date Notice”).

 

Such Optional Repurchase Date Notice must state:

 

(i)            the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.03, including the deadline for exercising the Optional Repurchase Right with respect to such Optional Repurchase Date and the procedures for submitting and withdrawing an Optional Repurchase Notice,

 

(ii)           such Optional Repurchase Date;

 

(iii)          the Optional Repurchase Price and that the Holder of any Note at the Close of Business on the Regular Record Date immediately before such Optional Repurchase Date will be entitled to receive, on the Interest Payment Date falling on such Optional Repurchase Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date;

 

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

 

(v)           the Conversion Rate in effect on the date of such Optional Repurchase Date;

 

(vi)          that Notes for which an Optional Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Optional Repurchase Price;

 

(vii)         that Notes (or any portion thereof) that are subject to an Optional Repurchase Notice that has been duly tendered may be converted (if otherwise then convertible pursuant to Article 5) only if such Optional Repurchase Notice is withdrawn in accordance with this Indenture; and

 

(viii)        the CUSIP and ISIN numbers, if any, of the Notes.

 

Neither the failure to deliver an Optional Repurchase Date Notice nor any defect in an Optional Repurchase Date Notice will limit the Optional Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Optional Repurchase.

 

(E)           Procedures to Exercise the Optional Repurchase Right.

 

(i)            Delivery of Optional Repurchase Notice and Notes to Be Repurchased.  To exercise its Optional Repurchase Right with respect to an Optional Repurchase Date for a Note, the Holder thereof must deliver to the Paying Agent:

 

(1)           before the Close of Business on the Business Day immediately before such Optional Repurchase Date (or such later time as may be required by law), a duly completed, written Optional Repurchase Notice with respect to such Note; and

 

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(2)           such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).

 

The Paying Agent will promptly deliver to the Company a copy of each Optional Repurchase Notice that it receives.

 

(ii)           Contents of Optional Repurchase Notices.  Each Optional Repurchase Notice with respect to a Note must state:

 

(1)           if such Note is a Physical Note, the certificate number of such Note;

 

(2)           the principal amount of such Note to be repurchased, which must be an Authorized Denomination; and

 

(3)           that such Holder is exercising its Optional Repurchase Right with respect to such principal amount of such Note;

 

provided, however, that if such Note is a Global Note, then such Optional Repurchase Notice must comply with the Depositary Procedures (and any such Optional Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.03(E)).

 

(iii)          Withdrawal of Optional Repurchase Notice.  A Holder that has delivered an Optional Repurchase Notice with respect to a Note for an Optional Repurchase Date may withdraw such Optional Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before such Optional Repurchase Date.  Such withdrawal notice must state:

 

(1)           if such Note is a Physical Note, the certificate number of such Note;

 

(2)           the principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and

 

(3)           the principal amount of such Note, if any, that remains subject to such Optional Repurchase Notice, which must be an Authorized Denomination;

 

provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.03(E)).

 

Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section 2.11, treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any instructions for book-entry transfer to the

 

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Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).

 

(F)           Payment of the Optional Repurchase Price.  Without limiting the Company’s obligation to deposit the Optional Repurchase Price within the time proscribed by Section 3.01(B), the Company will cause the Optional Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to an Optional Repurchase to be paid to the Holder thereof on or before the later of (i) the applicable Optional Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note).  For the avoidance of doubt, interest payable as described in Section 4.03(C) on any Note to be repurchased pursuant to an Optional Repurchase must be paid as so described regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.03(F).

 

(G)          Compliance with Applicable Securities Laws.  To the extent applicable, the Company will comply with all federal and state securities laws in connection with an Optional Repurchase (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Optional Repurchase in the manner set forth in this Indenture.

 

(H)          Repurchase in Part.  Subject to the terms of this Section 4.03, Notes may be repurchased pursuant to an Optional Repurchase in part, but only in Authorized Denominations.  Provisions of this Section 4.03 applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note.

 

Section 4.04.        RIGHT OF THE COMPANY TO REDEEM THE NOTES.

 

(A)          No Right to Redeem Before June 1, 2025.  The Company may not redeem the Notes at its option at any time before June 1, 2025.

 

(B)          Right to Redeem the Notes on or after June 1, 2025.  Subject to the terms of this Section 4.04, the Company has the right, at its election, to redeem all, or any portion in an Authorized Denomination, of the Notes, at any time and from time to time, on a Redemption Date on or after June 1, 2025, for a cash purchase price equal to the Redemption Price.

 

(C)          Redemption Prohibited in Certain Circumstances.  Notwithstanding anything to the contrary in this Article 4, the Company may not redeem any Notes if the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Redemption Date (including as a result of the payment of the related Redemption Price and any related interest pursuant to the proviso to Section 4.04(E), on such Redemption Date).

 

(D)          Redemption Date.  The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that is no more than fifty-five (55), nor less than thirty-five (35), Scheduled Trading Days after the Redemption Notice Date for such Redemption.

 

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(E)           Redemption Price.  The Redemption Price for any Note called for Redemption is an amount in cash equal to 100% of the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Redemption Date for such Redemption; provided, however, that if such Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (ii) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date.  For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Redemption Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Redemption Price will include interest on Notes to be redeemed from, and including, such Interest Payment Date.

 

(F)           Redemption Notice.  To call any Notes for Redemption, the Company must (x) send to each Holder of such Notes (and to any beneficial owner of a Global Note, if required by applicable law), the Trustee and the Paying Agent a written notice of such Redemption (a “Redemption Notice”) and (y) substantially contemporaneously therewith, issue a press release through such national newswire service as the Company then uses  (or publish the same through such other widely disseminated public medium as the Company then uses, including its website) containing the information set forth in the Redemption Notice.

 

Such Redemption Notice must state:

 

(i)            that the Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;

 

(ii)           the Redemption Date for such Redemption;

 

(iii)          the Redemption Price per $1,000 principal amount of Notes for such Redemption (and, if the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.04(E);

 

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

 

(v)           that Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full);

 

(vi)          the Conversion Rate in effect on the Redemption Notice Date for such Redemption;

 

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(vii)         the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after such Redemption Notice Date and before such Redemption Date;

 

(viii)        that Notes called for Redemption must be delivered to the Paying Agent (in the case of Physical Notes) or the Depositary Procedures must be complied with (in the case of Global Notes) for the Holder of those Notes to be entitled to receive the Redemption Price; and

 

(ix)          the CUSIP and ISIN numbers, if any, of the Notes.

 

On or before the Redemption Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.

 

(G)          Selection, Conversion and Transfer of Notes to be Redeemed in Part.  If less than all Notes then outstanding are called for Redemption, then:

 

(i)            the Notes to be redeemed will be selected by the Company as follows: (1) in the case of Global Notes, in accordance with the Depositary Procedures; and (2) in the case of Physical Notes, pro rata, by lot or by such other method the Company considers fair and appropriate; and

 

(ii)           if only a portion of a Note is subject to Redemption and such Note is converted in part, then the converted portion of such Note will be deemed to be from the portion of such Note that was subject to Redemption.

 

(H)          Payment of the Redemption Price.  Without limiting the Company’s obligation to deposit the Redemption Price by the time proscribed by Section 3.01(B), the Company will cause the Redemption Price for a Note (or portion thereof) subject to Redemption to be paid to the Holder thereof on or before the later of (i) the applicable Redemption Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the Redemption, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note).  For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.04(E) on any Note (or portion thereof) subject to Redemption must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.04(H).

 

Article 5.               CONVERSION

 

Section 5.01.        RIGHT TO CONVERT.

 

(A)          Generally.  Subject to the provisions of this Article 5, each Holder may, at its option, convert such Holder’s Notes into Conversion Consideration.

 

(B)          Conversions in Part.  Subject to the terms of this Indenture, Notes may be converted in part, but only in Authorized Denominations.  Provisions of this Article 5 applying to the conversion of a Note in whole will equally apply to conversions of a permitted portion of a Note.

 

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(C)          When Notes May Be Converted.

 

(i)            Generally.  Subject to Section 5.01(C)(ii), a Note may be converted only in the following circumstances:

 

(1)           Conversion upon Satisfaction of Common Stock Sale Price Condition.  A Holder may convert its Notes during any calendar quarter commencing after the calendar quarter ending on September 30, 2018 (and only during such calendar quarter), if the Last Reported Sale Price per share of Common Stock exceeds one hundred thirty percent (130%) of the Conversion Price for each of at least twenty (20) Trading Days, whether or not consecutive, during the thirty (30) consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter.

 

(2)           Conversion upon Satisfaction of Note Trading Price Condition.  A Holder may convert its Notes during the five (5) consecutive Business Days immediately after any  five (5) consecutive Trading Day period (such  five (5) consecutive Trading Day period, the “Measurement Period”) if the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth below, for each Trading Day of the Measurement Period was less than ninety -eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day.  The condition set forth in the preceding sentence is referred to in this Indenture as the “Trading Price Condition.”

 

The Trading Price will be determined by the Bid Solicitation Agent pursuant to this Section 5.01(C)(i)(2) and the definition of “Trading Price.”  The Bid Solicitation Agent (if not the Company) will have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination in writing, and the Company will have no obligation to make such request (or seek bids itself) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than ninety -eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock and the Conversion Rate.  If a Holder provides such evidence, then the Company will instruct the Bid Solicitation Agent to (or, if the Company is acting as the Bid Solicitation Agent, the Company will) determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety -eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day.  If the Trading Price Condition has been met as set forth above, then the Company will notify the Holders, the Trustee and the Conversion Agent of the same.  If, on any Trading Day after the Trading Price Condition has been met as set forth above, the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety -eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day, then the Company will notify the Holders, the Trustee and the Conversion Agent of the same.

 

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(3)           Conversion upon Specified Corporate Events.

 

(a)           Certain Distributions.  If the Company elects to:

 

(I)            distribute, to all or substantially all holders of Common Stock, any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan, so long as such rights have not separated from the Common Stock and are not exercisable until the occurrence of a triggering event, except that such rights will be deemed to be distributed under this clause (I) upon their separation from the Common Stock or upon the occurrence of such triggering event) entitling them, for a period of not more than forty-five (45) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced (determined in the manner set forth in the third paragraph of Section 5.05(A)(ii)); or

 

(II)          distribute, to all or substantially all holders of Common Stock, assets or securities of the Company or rights to purchase the Company’s securities, which distribution per share of Common Stock has a value, as reasonably determined by the Board of Directors, exceeding ten percent (10%) of the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before the date such distribution is announced,

 

then, in either case, (x) the Company will send notice of such distribution, and of the related right to convert Notes, to Holders, the Trustee and the Conversion Agent at least thirty five (35) Scheduled Trading Days before the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan or the occurrence of any such triggering event under a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); and (y) once the Company has sent such notice, Holders may convert their Notes at any time until the earlier of the Close of Business on the Business Day immediately before such Ex-Dividend Date and the Company’s announcement that such  distribution will not take place; provided, however, that the Notes will not become convertible pursuant to clause (y) above (but the Company will be required to send notice of such distribution pursuant to clause (x) above) on account of such distribution if each Holder participates, at the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder, in such distribution without having to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock

 

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equal to (A) the product of (i) the Conversion Rate in effect on the record date for such distribution; and (ii) the aggregate principal amount of Notes held by such Holder on such date, divided by (B) $1,000.

 

(b)           Certain Corporate Events.  If a Fundamental Change, Make-Whole Fundamental Change or Common Stock Change Event occurs (other than a merger or other business combination transaction that is effected solely to change the Company’s jurisdiction of incorporation and that does not constitute a Fundamental Change or a Make-Whole Fundamental Change), then, in each case, Holders may convert their Notes at any time from, and including, the effective date of such transaction or event to, and including, the thirty -fifth (35th) Trading Day after such effective date (or, if such transaction or event also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date).  No later than such effective date, the Company will send notice to the Holders, the Trustee and the Conversion Agent of such transaction or event, such effective date and the related right to convert Notes; provided, however, that if the Company fails to provide such notice by the effective date, then the last day on which the Notes are convertible will be extended by the number of Business Days from, and including, the effective date to, but excluding, the date the Company provides such notice.

 

(4)           Conversion upon Redemption.  If the Company calls any Note for Redemption, then the Holder of such Note may convert such Note at any time before the Close of Business on the Business Day immediately before the related Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full).  However, if the Company calls less than all outstanding Notes for Redemption and any Holder of a Note, or any owner of a beneficial interest in any Global Note, is reasonably not able to determine, before the Close of Business on the thirty -fifth (35th) Scheduled Trading Day immediately before the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is subject to such Redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the Close of Business on the Business Day immediately before the related Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full), and each such conversion will be deemed to be of a Note called for Redemption for purposes of this Indenture.

 

(5)           Conversions During Free Convertibility Periods.  A Holder may convert its Notes at any time (i) from, and including, December 1, 2024 until the Close of Business on the second Scheduled Trading Day immediately before June 1, 2025; and (ii) from, and including, December 1, 2047 until the close of business on the second Scheduled Trading Day immediately before the Maturity Date.

 

For the avoidance of doubt, the Notes may become convertible pursuant to any one or more of the preceding sub-paragraphs of this Section 5.01(C)(i) and the Notes ceasing to be

 

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convertible pursuant to a particular sub-paragraph of this Section 5.01(C)(i) will not preclude the Notes from being convertible pursuant to any other sub-paragraph of this Section 5.01(C)(i).

 

(ii)           Limitations and Closed Periods.  Notwithstanding anything to the contrary in this Indenture or the Notes:

 

(1)           Notes may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business Day;

 

(2)           in no event may any Note be converted after the Close of Business on the Scheduled Trading Day immediately before the Maturity Date;

 

(3)           if the Company calls any Note for Redemption pursuant to Section 4.04, then the Holder of such Note may not convert such Note after the Close of Business on the Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture; and

 

(4)           if a Fundamental Change Repurchase Notice or Optional Repurchase Notice is validly delivered pursuant to Section 4.02(F) or 4.03(E), respectively, with respect to any Note, then such Note may not be converted, except to the extent (a) such Note is not subject to such notice; (b) such notice is withdrawn in accordance with Section 4.02(F) or 4.03(E), as applicable; or (c) the Company fails to pay the Fundamental Change Repurchase Price or Optional Repurchase Price, as applicable, for such Note in accordance with this Indenture.

 

Section 5.02.        CONVERSION PROCEDURES.

 

(A)          Generally.

 

(i)            Global Notes.  To convert a beneficial interest in a Global Note that is convertible pursuant to Section 5.01(C), the owner of such beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).

 

(ii)           Physical Notes.  To convert all or a portion of a Physical Note that is convertible pursuant to Section 5.01(C), the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the conversion notice attached to such Physical Note or a facsimile of such conversion notice; (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).

 

(B)          Effect of Converting a Note.  At the Close of Business on the Conversion Date for a Note (or any portion thereof), such Note (or such portion thereof) will be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such

 

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Note (or such portion thereof) as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.02(D).

 

(C)          Holder of Record of Conversion Shares.  The Person in whose name any share of Common Stock is issuable upon conversion of any Note will be deemed to become the holder of record of such share as of the Close of Business on (i) the Conversion Date for such conversion, in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.

 

(D)          Interest Payable upon Conversion in Certain Circumstances.  If the Conversion Date of a Note is after a Regular Record Date and before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such conversion (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence), to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) the Holder surrendering such Note for conversion must deliver to the Conversion Agent, at the time of such surrender, an amount of cash equal to the amount of such interest referred to in clause (i) above; provided, however, that the Holder surrendering such Note for conversion need not deliver such cash (v) if the Company has specified a Redemption Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; (w) if such Conversion Date occurs after the Regular Record Date immediately before the Maturity Date; (x) if the Company has specified a Fundamental Change Repurchase Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date;  (y) if such Conversion Date occurs after the regular Record Date immediately before June 1, 2025 and on or before June 1, 2025; or (z) to the extent of any overdue interest or interest that has accrued on any overdue interest.  For the avoidance of doubt, as a result of, and without limiting the generality of, the foregoing, if a Note is converted with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then the Company will pay, as provided above, the interest that would have accrued on such Note to, but excluding, the Maturity Date.  For the avoidance of doubt, if the Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder of such Note at the Close of Business on the Regular Record Date immediately before such Interest Payment Date will be entitled to receive, on such Interest Payment Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date, and such Note, when surrendered for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 5.02(D).

 

(E)           Taxes and Duties.  If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any shares of Common Stock upon such conversion; provided, however, that if any tax or duty is due because such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder will pay such tax or duty and, until having received a sum sufficient to pay such tax or duty, the Conversion Agent may refuse to deliver any such shares to be issued in a name other than that of such Holder.

 

(F)           Conversion Agent to Notify Company of Conversions.  If any Note is submitted for

 

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conversion to the Conversion Agent or the Conversion Agent receives any notice of conversion with respect to a Note, then the Conversion Agent will promptly notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company that is in its possession, and will cooperate with the Company to determine the Conversion Date for such Note.

 

Section 5.03.        SETTLEMENT UPON CONVERSION.

 

(A)          Settlement Method.  Upon the conversion of any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Article 5, either (x) shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in Section 5.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section 5.03(B)(i)(3) (a “Combination Settlement”).

 

The Company will have the right to elect the Settlement Method applicable to any conversion of a Note; provided, however, that:

 

(i)            subject to clause (iii) below, all conversions of Notes with a Conversion Date that occurs on or after December 1, 2024 and on or before the second Scheduled Trading Day immediately before June 1, 2025 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders and the Conversion Agent no later than the Close of Business on the Scheduled Trading Day immediately before December 1, 2024.  In addition, all conversions with a Conversion Date that occurs on or after December 1, 2047 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders no later than the close of business on the Scheduled Trading Day immediately before December 1, 2047;

 

(ii)           subject to clause (iii) below, if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date occurs outside of the periods set forth in clause (i) above, then the Company will send notice of such Settlement Method to the Holder of such Note and the Conversion Agent no later than the Close of Business on the Business Day immediately after such Conversion Date;

 

(iii)          if any Notes are called for Redemption, then (1) the Company will specify, in the related Redemption Notice sent pursuant to Section 4.04(F) (and, in the case of a Redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes that are not called for Redemption), the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the related Redemption Notice Date and before the related Redemption Date; (2) if such Redemption Date occurs during the period from, and including, December 1, 2024 to, and including the second Scheduled Trading Day Immediately before June 1, 2025, then such Settlement Method must be the same Settlement Method that, pursuant to clause (i) above, applies to all conversions of Notes with a Conversion Date that occurs during such period; and (3) if such Redemption Date occurs on or after December 1, 2047, then such Settlement Method

 

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must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 1, 2047.

 

(iv)          the Company will use the same Settlement Method for all conversions of Notes with a Conversion Date that occurs on the same day (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes whose Conversion Dates occur on different days, except as provided in clause (i) or (iii) above);

 

(v)           if the Company does not timely elect a Settlement Method with respect to the conversion of a Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute a Default or Event of Default);

 

(vi)          if the Company timely elects Combination Settlement with respect to the conversion of a Note but does not timely notify the Holder of such Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes (and, for the avoidance of doubt, the failure to timely send such notification will not constitute a Default or Event of Default); and

 

(vii)         the Settlement Method will be subject to Section 5.08(A)(2).

 

(B)          Conversion Consideration.

 

(i)            Generally.  Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii), the type and amount of consideration (the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note to be converted will be as follows:

 

(1)           if Physical Settlement applies to such conversion, a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;

 

(2)           if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or

 

(3)           if Combination Settlement applies to such conversion, consideration consisting of (a) a number of shares of Common Stock equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (b) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.

 

(ii)           Cash in Lieu of Fractional Shares.  If Physical Settlement or Combination Settlement applies to the conversion of any Note and the number of shares of Common Stock deliverable pursuant to Section 5.03(B)(i) upon such conversion is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such conversion,

 

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cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) (x) the Daily VWAP on the Conversion Date for such conversion (or, if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the Daily VWAP on the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.

 

(iii)                               Conversion of Multiple Notes by a Single Holder.  If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion Consideration due in respect of such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the Depositary Procedures) be computed based on the total principal amount of Notes converted on such Conversion Date by such Holder.

 

(iv)                              Notice of Calculation of Conversion Consideration.  If Cash Settlement or Combination Settlement applies to the conversion of any Note, then the Company will determine the Conversion Consideration due thereupon promptly following the last VWAP Trading Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable detail.  Neither the Trustee nor the Conversion Agent will have any duty to make any such determination.

 

(C)                               Delivery of the Conversion Consideration.  Except as set forth in Sections 5.05(A), 5.05(D) and 5.08, the Company will pay or deliver, as applicable, the Conversion Consideration due upon the conversion of any Note to the Holder as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on or before the second (2nd) Business Day immediately after the last VWAP Trading Day of the Observation Period for such conversion; and (ii) if Physical Settlement applies to such conversion, on or before the second (2nd) Business Day immediately after the Conversion Date for such conversion.

 

(D)                               Deemed Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Conversion.  If a Holder converts a Note, then the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on such Note, and, except as provided in Section 5.02(D), the Company’s delivery of the Conversion Consideration due in respect of such conversion will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding the Conversion Date.  As a result, except as provided in Section 5.02(D), any accrued and unpaid interest on a converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited.  In addition, subject to Section 5.02(D), if the Conversion Consideration for a Note consists of both cash and shares of the Common Stock, then accrued and unpaid interest that is deemed to be paid therewith will be deemed to be paid first out of such cash.

 

Section 5.04.                         RESERVE AND STATUS OF COMMON STOCK ISSUED UPON CONVERSION.

 

(A)                               Stock Reserve.  At all times when any Notes are outstanding, the Company will reserve, out of its authorized but unissued and unreserved shares of Common Stock, a number of shares of Common Stock sufficient to permit the conversion of all then-outstanding Notes, assuming (x) Physical Settlement will apply to such conversion; and (y) the Conversion Rate is

 

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increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 5.07.

 

(B)                               Status of Conversion Shares; Listing.  Each Conversion Share, if any, delivered upon conversion of any Note will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered).  If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will use commercially reasonable efforts to cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system.

 

Section 5.05.                         ADJUSTMENTS TO THE CONVERSION RATE.

 

(A)                               Events Requiring an Adjustment to the Conversion Rate.  The Conversion Rate will be adjusted from time to time as follows:

 

(i)                                     Stock Dividends, Splits and Combinations.  If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common Stock (in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 5.08 will apply), then the Conversion Rate will be adjusted based on the following formula:

 



 

where:

 

CR0                       =                                            the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable;

 

CR1                       =                                            the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such effective date, as applicable;

 

OS0                        =                                            the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend, distribution, stock split or stock combination; and

 

OS1                        =                                            the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.

 

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If any dividend, distribution, stock split or stock combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split or stock combination not been declared or announced.

 

(ii)                                  Rights, Options and Warrants.  If the Company distributes, to all or substantially all holders of Common Stock, rights, options or warrants (other than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which the provisions set forth in Sections 5.05(A)(iii)(1) and 5.05(F) will apply) entitling such holders, for a period of not more than forty-five (45) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula:

 



 

where:

 

CR0                       =                                            the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;

 

CR1                       =                                            the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

 

OS                             =                                            the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date;

 

X                                     =                                            the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and

 

Y                                      =                                            a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.

 

To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Common Stock actually delivered

 

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upon exercise of such rights, option or warrants.  To the extent such rights, options or warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the Ex-Dividend Date for the distribution of such rights, options or warrants not occurred.

 

For purposes of this Section 5.05(A)(ii) and Section 5.01(C)(i)(3)(a), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date of the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.

 

(iii)                               Spin-Offs and Other Distributed Property.

 

(1)                                 Distributions Other than Spin-Offs.  If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:

 

(v)                                 dividends, distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(i) or 5.05(A)(ii);

 

(w)                               dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required (or would be required assuming the Dividend Threshold were zero and without regard to Section 5.05(C)) pursuant to Section 5.05(A)(iv);

 

(x)                                 rights issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.05(F);

 

(y)                                 Spin-Offs for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(iii)(2); and

 

(z)                                  a distribution solely pursuant to a Common Stock Change Event, as to which Section 5.08 will apply,

 

then the Conversion Rate will be increased based on the following formula:

 



 

52











 

where:

 

CR0                       =                                            the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;

 

CR1                       =                                            the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

 

SP                              =                                            the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and

 

FMV                  =                                            the fair market value (as determined by the Board of Directors), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed per share of Common Stock pursuant to such distribution;

 

provided, however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants that such Holder would have received if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date.

 

To the extent such distribution is not so paid or made, or such rights, options or warrants are not exercised before their expiration (including as a result of being redeemed or terminated), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid or on the basis of the distribution of only such rights, options or warrants, if any, that were actually exercised, if at all.

 

(2)                                 Spin-Offs.  If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company to all or substantially all holders of the Common Stock (other than solely pursuant to a Common Stock Change Event, as to which Section 5.08 will apply), and such Capital Stock or equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “Spin-Off”), then the Conversion Rate will be increased based on

 

53











 

the following formula:

 



 

where:

 

CR0                       =                                            the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such Spin-Off;

 

CR1                       =                                            the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

 

FMV                  =                                            the product of (x) the average of the Last Reported Sale Prices per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, such Ex-Dividend Date (such average to be determined as if references to Common Stock in the definitions of Last Reported Sale Price and Trading Day were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per share of Common Stock in such Spin-Off; and

 

SP                              =                                            the average of the Last Reported Sale Prices per share of Common Stock for each Trading Day in the Spin-Off Valuation Period.

 

The adjustment to the Conversion Rate pursuant to this Section 5.05(A)(iii)(2) will be calculated as of the Close of Business on the last Trading Day of the Spin-Off Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off, with retroactive effect.  If a Note is converted and the Conversion Date (in the case of Physical Settlement) or any VWAP Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs during the Spin-Off Valuation Period, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the last day of the Spin-Off Valuation Period.

 

To the extent any dividend or distribution of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

 

(iv)                              Cash Dividends or Distributions.  If any cash dividend or distribution is made to all or substantially all holders of Common Stock (other than a regular quarterly

 

54











 

cash dividend that does not exceed the Dividend Threshold per share of Common Stock), then the Conversion Rate will be increased based on the following formula:

 



 

where:

 

CR0                       =                                            the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;

 

CR1                       =                                            the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;

 

SP                              =                                            the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Ex-Dividend Date;

 

T                                      =                                            an amount (subject to the proviso below, the “Dividend Threshold”) initially equal to $0.03 per share of Common Stock; provided, however, that (x) if such dividend or distribution is not a regular quarterly cash dividend on the Common Stock, then the Dividend Threshold will be deemed to be zero dollars ($0.00) per share of Common Stock with respect to such dividend or distribution; and (y) the Dividend Threshold will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of Section 5.05(A) (other than this Section 5.05(A)(iv)); and

 

D                                    =                                            the cash amount distributed per share of Common Stock in such dividend or distribution;

 

provided, however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such dividend or distribution, at the same time and on the same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date.

 

To the extent such dividend or distribution is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

 

55











 

(v)                                 Tender Offers or Exchange Offers.  If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act), and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per share of Common Stock in such tender or exchange offer exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Rate will be increased based on the following formula:

 



 

where:

 

CR0                       =                                            the Conversion Rate in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;

 

CR1                       =                                            the Conversion Rate in effect immediately after the Expiration Time;

 

AC                            =                                            the aggregate value (determined as of the Expiration Time by the Board of Directors) of all cash and other consideration paid for shares of Common Stock purchased in such tender or exchange offer;

 

OS0                        =                                            the number of shares of Common Stock outstanding immediately before the Expiration Time (before giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);

 

OS1                        =                                            the number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and

 

SP                              =                                            the average of the Last Reported Sale Prices per of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;

 

provided, however, that the Conversion Rate will in no event be adjusted down pursuant to this Section 5.05(A)(v), except to the extent provided in the immediately following paragraph.  The adjustment to the Conversion Rate pursuant to this Section 5.05(A)(v) will be calculated as of the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given effect immediately after the Expiration Time, with retroactive effect.  If a Note is converted and the Conversion Date (in the case of Physical

 

56











 

Settlement) or any VWAP Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the last day of the Tender/Exchange Offer Valuation Period.

 

To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.

 

(B)                               No Adjustments in Certain Cases.

 

(i)                                     Where Holders Participate in the Transaction or Event Without Conversion.  Notwithstanding anything to the contrary in Section 5.05(A), the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment pursuant to Section 5.05(A) (other than a stock split or combination of the type set forth in Section 5.05(A)(i) or a tender or exchange offer of the type set forth in Section 5.05(A)(v)) if each Holder participates, at the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder of Notes, in such transaction or event without having to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to (x) the product of (i) the Conversion Rate in effect on the related record date, effective date or Expiration Date, as applicable; and (ii) the aggregate principal amount  of Notes held by such Holder on such date, divided by (y) $1,000.

 

(ii)                                  Certain Events.  The Company will not be required to adjust the Conversion Rate except as provided in Section 5.05 or Section 5.07.  Without limiting the foregoing, the Company will not be obligated to adjust the Conversion Rate on account of:

 

(1)                                 except as otherwise provided in Section 5.05, the sale of shares of Common Stock for a purchase price that is less than the market price per share of Common Stock or less than the Conversion Price;

 

(2)                                 the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any such plan;

 

(3)                                 the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Company or any of its Subsidiaries;

 

57












 

(4)                                 the issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Company outstanding as of the Issue Date;

 

(5)                                 solely a change in the par value of the Common Stock; or

 

(6)                                 accrued and unpaid interest on the Notes.

 

(C)                               Adjustment Deferral.  If an adjustment to the Conversion Rate otherwise required by this Article 5 would result in a change of less than one percent (1%) to the Conversion Rate, then, notwithstanding anything to the contrary in this Article 5, the Company may, at its election, defer such adjustment, except that all such deferred adjustments must be given effect immediately (i) when all such deferred adjustments would result in a change of at least one percent (1%) to the Conversion Rate; (ii) on the Conversion Date of, or any VWAP Trading Day of an Observation Period for, any Note; (iii) on the date a Fundamental Change or Make-Whole Fundamental Change occurs; (iv) on the date the Company calls any Notes for Redemption; (iv) on December 1, 2024; and (v) on December 1, 2047.

 

(D)                               Adjustments Not Yet Effective.  Notwithstanding anything to the contrary in this Indenture or the Notes, if:

 

(i)                                     a Note is to be converted pursuant to Physical Settlement or Combination Settlement;

 

(ii)                                  the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section 5.05(A) has occurred on or before the Conversion Date for such conversion (in the case of Physical Settlement) or on or before any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement), but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date or VWAP Trading Day, as applicable;

 

(iii)                               the Conversion Consideration due upon such conversion (in the case of Physical Settlement) or due in respect of such VWAP Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock; and

 

(iv)                              such shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),

 

then, solely for purposes of such conversion, the Company will, without duplication, give effect to such adjustment on such Conversion Date (in the case of Physical Settlement) or such VWAP Trading Day (in the case of Combination Settlement).  In such case, if the date on which the Company is otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined, then the Company will delay the settlement of such conversion until the second (2nd) Business Day after such first date.

 

(E)                                Conversion Rate Adjustments where Converting Holders Participate in the Relevant Transaction or Event.  Notwithstanding anything to the contrary in this Indenture or the

 

58











 

Notes, if:

 

(i)                                     a Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section 5.05(A);

 

(ii)                                  a Note is to be converted pursuant to Physical Settlement or Combination Settlement;

 

(iii)                               the Conversion Date for such conversion (in the case of Physical Settlement) or any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the related Record Date;

 

(iv)                              the Conversion Consideration due upon such conversion (in the case of Physical Settlement) or due with respect to such VWAP Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock based on a Conversion Rate that is adjusted for such dividend or distribution; and

 

(v)                                 such shares would be entitled to participate in such dividend or distribution(including pursuant to Section 5.02(C)),

 

then (x) in the case of Physical Settlement, such Conversion Rate adjustment will not be given effect for such conversion, and the shares of Common Stock issuable upon such conversion based on such unadjusted Conversion Rate will be entitled to participate in such dividend or distribution; and (y) in the case of Combination Settlement, the Conversion Rate adjustment relating to such Ex-Dividend Date will be made for such conversion in respect of such VWAP Trading Day, but the shares of Common Stock issuable with respect to such VWAP Trading Day based on such adjusted Conversion Rate will not be entitled to participate in such dividend or distribution.

 

(F)                                 Stockholder Rights Plans.  If any shares of Common Stock are to be issued upon conversion of any Note and, at the time of such conversion, the Company has in effect any stockholder rights plan, then the Holder of such Note will be entitled to receive, in addition to, and concurrently with the delivery of, the Conversion Consideration otherwise payable under this Indenture upon such conversion, the rights set forth in such stockholder rights plan, unless such rights have separated from the Common Stock at such time, in which case, and only in such case, the Conversion Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) on account of such separation as if, at the time of such separation, the Company had made a distribution of the type referred to in such Section to all holders of the Common Stock, subject to readjustment in accordance with such Section if such rights expire, terminate or are redeemed.

 

(G)                               Limitation on Effecting Transactions Resulting in Certain Adjustments.  The Company will not engage in or be a party to any transaction or event that would require the Conversion Rate to be adjusted pursuant to Section 5.05(A) or Section 5.07 to an amount that would result in the Conversion Price per share of Common Stock being less than the par value per share of Common Stock.

 

(H)                              Equitable Adjustments to Prices.  Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported Sale Prices, or any function

 

59











 

thereof, over a period of multiple days (including to calculate the Stock Price or an adjustment to the Conversion Rate), or to calculate Daily VWAPs over an Observation Period, the Company will make proportionate adjustments, if any, to such calculations to account for any adjustment to the Conversion Rate pursuant to Section 5.05(A)(i) that becomes effective, or any event requiring such an adjustment to the Conversion Rate where the Ex-Dividend Date or effective date, as applicable, of such event occurs, at any time during such period or Observation Period, as applicable.

 

(I)                                   Calculation of Number of Outstanding Shares of Common Stock.  For purposes of Section 5.05(A), the number of shares of Common Stock outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock; and (ii) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on shares of Common Stock held in its treasury).

 

(J)                                   Calculations.  All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths rounded upward), as applicable.

 

(K)                               Notice of Conversion Rate Adjustments.  Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.05(A), the Company will promptly send notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after such adjustment; and (iii) the effective time of such adjustment.

 

Section 5.06.                         VOLUNTARY ADJUSTMENTS.

 

(A)                               Generally.  To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (ii) such increase is in effect for a period of at least twenty (20) Business Days; and (iii) such increase is irrevocable during such period.

 

(B)                               Notice of Voluntary Increases.  If the Board of Directors determines to increase the Conversion Rate pursuant to this Section 5.06, then, at least fifteen (15) Business Days before such increase, the Company will send notice to each Holder of such increase, the amount thereof and the period during which such increase will be in effect.

 

Section 5.07.                         ADJUSTMENTS TO THE CONVERSION RATE IN CONNECTION WITH A MAKE-WHOLE FUNDAMENTAL CHANGE.

 

(A)                               Generally.  If a Make-Whole Fundamental Change occurs on or before June 1, 2025 and the Conversion Date for the conversion of a Note occurs during the related Make-Whole Fundamental Change Conversion Period, then, subject to this Section 5.07, the Conversion Rate applicable to such conversion will be increased by a number of shares (the “Additional Shares”)

 

60











 

set forth in the table below corresponding (after interpolation as provided in, and subject to, the provisions below) to the effective date and the Stock Price of such Make-Whole Fundamental Change:

 

	
Effective
    	
 
    	
Stock Price
    	
 
    
	
Date
    	
 
    	
$33.50
    	
 
    	
$40.00
    	
 
    	
$45.00
    	
 
    	
$47.74
    	
 
    	
$50.00
    	
 
    	
$60.00
    	
 
    	
$80.00
    	
 
    	
$100.00
    	
 
    	
$125.00
    	
 
    	
$150.00
    	
 
    	
$200.00
    	
 
    	
$250.00
    	
 
    	
$300.00
    	
 
    
	
May 24, 2018
    	
 
    	
8.9028
    	
 
    	
6.3323
    	
 
    	
5.0138
    	
 
    	
4.4512
    	
 
    	
4.0520
    	
 
    	
2.7812
    	
 
    	
1.5089
    	
 
    	
0.9192
    	
 
    	
0.5382
    	
 
    	
0.3279
    	
 
    	
0.1180
    	
 
    	
0.0288
    	
 
    	
0.0000
    	
 
    
	
June 1, 2019
    	
 
    	
8.9028
    	
 
    	
6.0950
    	
 
    	
4.7611
    	
 
    	
4.1971
    	
 
    	
3.7994
    	
 
    	
2.5518
    	
 
    	
1.3446
    	
 
    	
0.8067
    	
 
    	
0.4678
    	
 
    	
0.2831
    	
 
    	
0.0995
    	
 
    	
0.0228
    	
 
    	
0.0000
    	
 
    
	
June 1, 2020
    	
 
    	
8.9028
    	
 
    	
5.8733
    	
 
    	
4.5080
    	
 
    	
3.9372
    	
 
    	
3.5380
    	
 
    	
2.3083
    	
 
    	
1.1713
    	
 
    	
0.6909
    	
 
    	
0.3978
    	
 
    	
0.2398
    	
 
    	
0.0827
    	
 
    	
0.0173
    	
 
    	
0.0000
    	
 
    
	
June 1, 2021
    	
 
    	
8.9028
    	
 
    	
5.6213
    	
 
    	
4.2120
    	
 
    	
3.6315
    	
 
    	
3.2296
    	
 
    	
2.0225
    	
 
    	
0.9748
    	
 
    	
0.5642
    	
 
    	
0.3237
    	
 
    	
0.1952
    	
 
    	
0.0660
    	
 
    	
0.0120
    	
 
    	
0.0000
    	
 
    
	
June 1, 2022
    	
 
    	
8.9028
    	
 
    	
5.3103
    	
 
    	
3.8409
    	
 
    	
3.2478
    	
 
    	
2.8430
    	
 
    	
1.6717
    	
 
    	
0.7486
    	
 
    	
0.4260
    	
 
    	
0.2459
    	
 
    	
0.1493
    	
 
    	
0.0493
    	
 
    	
0.0074
    	
 
    	
0.0000
    	
 
    
	
June 1, 2023
    	
 
    	
8.9028
    	
 
    	
4.9150
    	
 
    	
3.3540
    	
 
    	
2.7428
    	
 
    	
2.3356
    	
 
    	
1.2293
    	
 
    	
0.4936
    	
 
    	
0.2805
    	
 
    	
0.1663
    	
 
    	
0.1024
    	
 
    	
0.0326
    	
 
    	
0.0031
    	
 
    	
0.0000
    	
 
    
	
June 1, 2024
    	
 
    	
8.9028
    	
 
    	
4.3963
    	
 
    	
2.6531
    	
 
    	
2.0090
    	
 
    	
1.6024
    	
 
    	
0.6515
    	
 
    	
0.2268
    	
 
    	
0.1375
    	
 
    	
0.0861
    	
 
    	
0.0541
    	
 
    	
0.0162
    	
 
    	
0.0002
    	
 
    	
0.0000
    	
 
    
	
June 1, 2025
    	
 
    	
8.9028
    	
 
    	
4.0521
    	
 
    	
1.2743
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    


 

If such effective date or Stock Price is not set forth in the table above, then:

 

(i)                                     if such Stock Price is between two Stock Prices in the table above or the effective date is between two effective dates in the table above, then the number of Additional Shares will be determined by a straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices in the table and the earlier and later effective dates in the table above, as applicable, based on a 365- or 366-day year, as applicable; and

 

(ii)                                  if the Stock Price is greater than $300.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above are adjusted pursuant to Section 5.07(B)), or less than $33.50 (subject to adjustment in the same manner), per share, then no Additional Shares will be added to the Conversion Rate.

 

Notwithstanding anything to the contrary in this Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 29.8507 shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 5.05(A).

 

(B)                               Adjustment of Stock Prices and Additional Shares.  The Stock Prices in the first row (i.e., the column headers) of the table set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of Section 5.05(A).  The numbers of Additional Shares in the table set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Rate is adjusted pursuant to Section 5.07(A).

 

(C)                               Notice of the Occurrence of a Make-Whole Fundamental Change.  The Company will notify the Holders, the Trustee and the Conversion Agent of each Make-Whole Fundamental Change in accordance with Section 5.01(C)(i)(3)(b).

 

(D)                               Settlement of Cash Make-Whole Fundamental Changes.  For the avoidance of doubt, if holders of Common Stock receive solely cash in a Make-Whole Fundamental Change, then, pursuant to Section 5.08, conversions of Notes will thereafter be settled no later than the third (3rd) Business Day after the relevant Conversion Date.

 

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Section 5.08.                         EFFECT OF COMMON STOCK CHANGE EVENT.

 

(A)                               Generally.  If there occurs any:

 

(i)                                     recapitalization, reclassification or change of the Common Stock, other than (x) changes solely resulting from a subdivision or combination of the Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value or (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities;

 

(ii)                                  consolidation, merger, combination or binding or statutory share exchange involving the Company;

 

(iii)                               sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or

 

(iv)                              similar event,

 

and, as a result of which, the Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Indenture or the Notes,

 

(1)                                 from and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note, and the conditions to any such conversion, will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; and (II) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “common equity” will be deemed to mean the common equity (including depositary receipts representing common equity), if any, forming part of such Reference Property;

 

(2)                                 if such Reference Property Unit consists entirely of cash, then the Company will be deemed to elect Physical Settlement in respect of all conversions whose Conversion Date occurs on or after the effective date of such Common Stock Change Event and will pay the cash due upon such conversions no later than the second (2nd) Business Day after the relevant Conversion Date; and

 

(3)                                 for these purposes, the Daily VWAP or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be the fair value of such Reference Property Unit or portion thereof, as applicable,

 

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determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).

 

If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property Unit will be deemed to be the types and amounts of consideration actually received, per share of Common Stock, by the holders of Common Stock.  The Company will notify Holders of the weighted average as soon as practicable after such determination is made.

 

At or before the effective time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 8.01(F), which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner set forth in this Section 5.08; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 5.07(A) in a manner consistent with this Section 5.08 (including giving effect, in the reasonable discretion of the Company, to the Dividend Threshold in a manner that preserves the economic interests of the Holders); and (z) contain such other provisions as the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.08(A).  If the Reference Property includes shares of stock or other securities or assets of a Person other than the Successor Person, then such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions the Company reasonably determines are appropriate to preserve the economic interests of the Holders.

 

(B)                               Notice of Common Stock Change Events.  The Company will provide notice of each Common Stock Change Event in the manner provided in Section 5.01(C)(i)(3)(b).

 

(C)                               Compliance Covenant.  The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section 5.08.

 

Article 6.                                            SUCCESSORS

 

Section 6.01.                         WHEN THE COMPANY MAY MERGE, ETC.

 

(A)                               Generally.  The Company will not (x) consolidate with or merge with or into another Person or (y) sell, lease, assign, transfer, convey or otherwise dispose of, in one transaction or a series of related transactions, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to another Person (a “Business Combination Event”), unless:

 

(i)                                     either (a) the Company is the surviving corporation or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, lease, assignment, transfer, conveyance or other disposition has been made is a corporation (the “successor corporation”) duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia;

 

(ii)                                  the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, lease, assignment, transfer, conveyance or

 

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other disposition has been made expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination Event, a supplemental indenture or other documents and agreements reasonably satisfactory to the Trustee) all of the Company’s obligations under this Indenture and the Notes; and

 

(iii)                               immediately after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing.

 

(B)                               Delivery of Officer’s Certificate and Opinion of Counsel to the Trustee.  Before the effective time of any Business Combination Event, the Company will deliver to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 6.01(A); and (ii) all conditions precedent to such Business Combination Event provided in this Indenture have been satisfied.

 

Section 6.02.                         SUCCESSOR CORPORATION SUBSTITUTED.

 

At the effective time of a Business Combination Event that complies with Section 6.01, the Successor Corporation (if not the Company) will succeed to, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Corporation had been named as the Company in this Indenture and the Notes, and, except in the case of a lease, the predecessor Company will be discharged from its obligations under this Indenture and the Notes.

 

Section 6.03.                         EXCLUSION FOR ASSET TRANSFERS WITH WHOLLY OWNED SUBSIDIARIES.

 

Notwithstanding anything to the contrary in this Article 6, this Article 6 will not apply to any sale, lease, assignment, transfer, conveyance or other disposition of assets between or among the Company and any one or more of its Subsidiaries, including by way of merger or consolidation (except that, in the case of a merger or consolidation between the Company and any one or more of its Subsidiaries, the Person formed by or surviving such transaction must be a corporation duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia).

 

Article 7.                                            DEFAULTS AND REMEDIES

 

Section 7.01.                         EVENTS OF DEFAULT.

 

(A)                               Definition of Events of Default.  “Event of Default” means the occurrence of any of the following:

 

(i)                                     a default in the payment when due (whether at maturity, upon Redemption, Repurchase Upon Fundamental Change or Optional Repurchase or otherwise) of the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, any Note;

 

(ii)                                  a default for thirty (30) days in the payment when due of interest on any Note;

 

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(iii)                               the Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice, an Optional Repurchase Date Notice or a notice pursuant to Section 5.01(C)(i)(3);

 

(iv)                              a default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion right with respect thereto;

 

(v)                                 a default in any of the Company’s obligations or agreements, or in any Guarantor’s obligations or agreements, under this Indenture or the Notes (other than a default set forth in clause (i), (ii), (iii), or (iv) of this Section 7.01(A)) where such default is not cured or waived within sixty (60) days after notice to the Company by the Trustee, or to the Company and the Trustee by Holders of at least twenty -five percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and state that such notice is a “Notice of Default”;

 

(vi)                              a default by the Company or any Guarantor with respect to any one or more mortgages, agreements or other instruments under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of more than the greater of 1.5% of the Company’s Total Assets and three hundred and seventy five million dollars ($375,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any Guarantor, whether such indebtedness exists as of the Issue Date or is thereafter created, where such default:

 

(1)                                 constitutes a failure to pay the principal of such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, in each case after the expiration of any applicable grace period; or

 

(2)                                 results in such indebtedness becoming or being declared due and payable before its stated maturity,

 

in each case where such default is not cured or waived within thirty (30) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least twenty -five percent (25%) of the aggregate principal amount of Notes then outstanding; provided, however, that this clause (vi) will not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to a Person that is not an affiliate of the Company; (y) Non-Recourse Debt, except to the extent that the Company or any Guarantor that is not a party to such Non-Recourse Debt becomes directly or indirectly liable, including pursuant to any contingent obligation, for any such Non-Recourse Debt and such liability, individually or in the aggregate, exceeds the greater of 1.5% of Total Assets and three hundred and seventy five million dollars ($375,000,000), and (z) to the extent constituting Indebtedness, any indemnification, guarantee or other credit support obligations of the Company or any Guarantor in connection with any tax equity financing entered into by a Subsidiary that is not a Guarantor;

 

(vii)                           one or more final judgments being rendered against the Company or any

 

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Guarantor for the payment of more than the greater of 1.5% of Total Assets and three hundred and seventy five million dollars ($375,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts reasonably expected to be covered by insurance, unless and until such amounts are finally determined not to be so covered), where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired, if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished;

 

(viii)                        any Guarantee ceases to be in full force and effect or any Guarantor denies or disaffirms its obligations under its Guarantee;

 

(ix)                              the Company or any Guarantor that is a Significant Subsidiary of the Company, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of the Company, pursuant to or within the meaning of any Bankruptcy Law, either:

 

(1)                                 commences a voluntary case or proceeding;

 

(2)                                 consents to the entry of an order for relief against it in an involuntary case or proceeding;

 

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

 

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

 

(5)                                 generally is not paying its debts as they become due; or

 

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

 

(1)                                 is for relief against the Company or any Guarantor that is a Significant Subsidiary of the Company, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of the Company in an involuntary case or proceeding;

 

(2)                                 appoints a custodian of the Company or any Guarantor that is a Significant Subsidiary of the Company, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of the Company; or

 

(3)                                 orders the winding up or liquidation of the Company or any Guarantor that is a Significant Subsidiary of the Company, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of the Company for all or substantially all of the property of the Company or such Guarantor or group of Guarantors; or

 

and, in each case under this Section 7.01(A)(x), such order or decree remains unstayed and in effect for at least sixty (60) consecutive days.

 

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(B)          Cause Irrelevant.  Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause thereof or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

 

Section 7.02.        ACCELERATION.

 

(A)          Automatic Acceleration in Certain Circumstances.  If an Event of Default set forth in Section 7.01(A)(ix) or 7.01(A)(x) occurs with respect to the Company, any Guarantor that is a Significant Subsidiary of the Company, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of the Company, then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding will immediately become due and payable without any further action or notice by any Person.

 

(B)          Optional Acceleration.  Subject to Section 7.03, if an Event of Default (other than an Event of Default set forth in Section 7.01(A)(ix) or 7.01(A)(x) with respect to the Company, any Guarantor that is a Significant Subsidiary of the Company, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of the Company) occurs and is continuing, then the Trustee, by notice to the Company, or Holders of at least twenty -five percent (25%) of the aggregate principal amount of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding to become due and payable immediately.

 

(C)          Rescission of Acceleration.  Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate principal amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of principal of, or interest on, the Notes that has become due solely because of such acceleration) have been cured or waived.  No such rescission will affect any subsequent Default or impair any right consequent thereto.

 

Section 7.03.        SOLE REMEDY FOR A FAILURE TO REPORT.

 

(A)          Generally.  Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event of Default (a “Reporting Event of Default”) pursuant to Section 7.01(A)(v) arising from the Company’s failure to comply with Section 3.02 will, for each of the first 90 calendar days on which a Reporting Event of Default has occurred and is continuing, consist exclusively of the accrual of Special Interest on the Notes.  If the Company has made such an election, then (i) the Notes will be subject to acceleration pursuant to Section 7.02 on account of the relevant Reporting Event of Default from, and including, the 91st calendar day on which a Reporting Event of Default has occurred and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest will cease to accrue on any Notes from, and including, such 91st calendar day (it being understood that interest on any defaulted Special Interest will nonetheless accrue pursuant to Section 2.05(B)).

 

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(B)          Amount and Payment of Special Interest.  Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof; provided, however, that in no event will Special Interest, together with any Additional Interest, accrue on any day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%).  For the avoidance of doubt, any Special Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and, subject to the proviso of the immediately preceding sentence, in addition to any Additional Interest that accrues on such Note.

 

(C)          Notice of Election.  To make the election set forth in Section 7.03(A), the Company must send to the Holders, the Trustee and the Paying Agent, before the date on which each Reporting Event of Default first occurs, a notice that (i) briefly describes of the report(s) that the Company failed to file with or furnish to the SEC; (ii) states that the Company is electing that the sole remedy for such Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which and rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account of such Reporting Event of Default.

 

(D)          Notice to Trustee and Paying Agent; Trustee’s Disclaimer.  If Special Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest on such Note on such date of payment; and (ii) the amount of such Special Interest that is payable on such date of payment.  The Trustee will have no duty to determine whether any Special Interest is payable or the amount thereof.

 

(E)           No Effect on Other Events of Default.  No election pursuant to this Section 7.03 with respect to a Reporting Event of Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.

 

Section 7.04.        OTHER REMEDIES.

 

(A)          Trustee May Pursue All Remedies.  If an Event of Default occurs and is continuing, then the Trustee may pursue any available remedy to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture or the Notes.

 

(B)          Procedural Matters.  The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such proceeding.  A delay or omission by the Trustee or any Holder in exercising any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default.  All remedies will be cumulative to the extent permitted by law.

 

Section 7.05.        WAIVER OF PAST DEFAULTS.

 

An Event of Default pursuant to clause (i), (ii), (iv) or (v) of Section 7.01(A) (that, in the case of clause (v) only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default that could lead to such an Event of Default,

 

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can be waived only with the consent of each affected Holder.  Each other Default or Event of Default may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes then outstanding.  If an Event of Default is so waived, then it will cease to exist.  If a Default is so waived, then it will be deemed to be cured and any Event of Default arising therefrom will be deemed not to occur.  However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom.

 

Section 7.06.        CONTROL BY MAJORITY.

 

Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 11.01, the Trustee determines may be unduly prejudicial to the rights of other Holders or may involve the Trustee in liability, unless the Trustee is offered security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result from the Trustee’s following such direction.

 

Section 7.07.        LIMITATION ON SUITS.

 

No Holder may pursue any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Redemption Price,  Fundamental Change Repurchase Price or Optional Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant to Article 5), unless:

 

(A)          such Holder has previously delivered to the Trustee notice that an Event of Default is continuing;

 

(B)          Holders of at least twenty -five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a request to the Trustee to pursue such remedy;

 

(C)          such Holder or Holders offer and, if requested, provide to the Trustee security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result from the Trustee’s following such request;

 

(D)          the Trustee does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity; and

 

(E)           during such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding do not deliver to the Trustee a direction that is inconsistent with such request.

 

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.  The Trustee will have no duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.

 

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Section 7.08.        ABSOLUTE RIGHT OF HOLDERS TO INSTITUTE SUIT FOR THE ENFORCEMENT OF THE RIGHT TO RECEIVE PAYMENT AND CONVERSION CONSIDERATION.

 

Notwithstanding anything to the contrary in this Indenture or the Notes, the right of each Holder of a Note to bring suit for the enforcement of any payment or delivery, as applicable, of the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on or after the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the consent of such Holder.

 

Section 7.09.        COLLECTION SUIT BY TRUSTEE.

 

The Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iv) of Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the total unpaid or undelivered principal of, or Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, or interest on, or Conversion Consideration due pursuant to Article 5 upon conversion of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any Defaulted Amounts, and such further amounts sufficient to cover the reasonable costs and expenses of collection, including reasonable compensation, expenses, disbursements and advances provided for in Section 11.06.

 

Section 7.10.        TRUSTEE MAY FILE PROOFS OF CLAIM.

 

The Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any such claims.  Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable compensation, expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to the Trustee pursuant to Section 11.06.  To the extent that the payment of any such compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a lien on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise).  Nothing in this Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

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Section 7.11.        PRIORITIES.

 

The Trustee will pay or deliver in the following order any money or other property that it collects pursuant to this Article 7:

 

First:                      pro rata to the Trustee, Paying Agent, Registrar and Conversion Agent and their respective agents and attorneys for amounts due under this Indenture, including but not limited to Section 11.06, including payment of all fees, compensation, expenses, indemnities and liabilities incurred, and all advances made, by the Trustee, Paying Agent, Registrar and Conversion Agent and the costs and expenses of collection;

 

Second:

 

to Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Redemption Price,  Fundamental Change Repurchase Price or Optional Repurchase Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference or priority of any kind, according to such amounts or other property due and payable on all of the Notes; and

 

Third:

 

to the Company or such other Person as a court of competent jurisdiction directs.

 

The Trustee may fix a record date and payment date for any payment or delivery to the Holders pursuant to this Section 7.11.

 

Section 7.12.        UNDERTAKING FOR COSTS.

 

In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court, in its discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay the costs of such suit, and (B) assess reasonable costs (including reasonable attorneys’ fees) against any litigant party in such suit, having due regard to the merits and good faith of the claims or defenses made by such litigant party; provided, however, that this Section 7.12 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section 7.08 or any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding.

 

Article 8.               AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

Section 8.01.        WITHOUT THE CONSENT OF HOLDERS.

 

Notwithstanding anything to the contrary in Section 8.02, the Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder to:

 

(A)          cure any ambiguity or correct any mistake, omission, defect or inconsistency in this Indenture or the Notes;

 

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(B)          add additional Guarantees with respect to the Company’s obligations under this Indenture or the Notes;

 

(C)          secure the Notes or any Guarantees;

 

(D)          add to the Company’s or any Guarantor’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company or any Guarantor;

 

(E)           provide for the assumption of the Company’s or any Guarantor’s obligations under this Indenture and the Notes pursuant to, and in compliance with, Article 6 or Section 9.04, as applicable;

 

(F)           enter into supplemental indentures pursuant to, and in accordance with, Section 5.08 in connection with a Common Stock Change Event;

 

(G)          irrevocably elect or eliminate any Settlement Method or Specified Dollar Amount; provided, however, that no such election or elimination will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Section 5.03(A);

 

(H)          evidence or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee;

 

(I)            conform the provisions of this Indenture and the Notes to the “Description of Notes” section of the Company’s Preliminary Offering Memorandum, dated May 21, 2018, as supplemented by the related Pricing Term Sheet, dated May 21, 2018;

 

(J)            provide for or confirm the issuance of additional Notes pursuant to Section 2.03(B);

 

(K)          comply with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the Trust Indenture Act, as then in effect; or

 

(L)           make any other change to this Indenture or the Notes that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as such, in any material respect.

 

Section 8.02.        WITH THE CONSENT OF HOLDERS.

 

(A)          Generally.  Subject to Sections 8.01, 7.05 and 7.08 and the immediately following sentence, the Company, the Guarantors and the Trustee may, with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, any Notes), amend or supplement this Indenture or the Notes or waive compliance with any provision of this Indenture or the Notes.  Notwithstanding anything to the contrary in the foregoing sentence, without the consent of each affected Holder (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, any Notes), no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may:

 

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(i)            reduce the principal, or extend the stated maturity, of any Note;

 

(ii)           reduce the Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for any Note or change the times at which, or the circumstances under which, the Notes may or will be redeemed or repurchased by the Company;

 

(iii)          reduce the rate, or extend the time for the payment, of interest on any Note;

 

(iv)          make any change that adversely affects the conversion rights of any Note;

 

(v)           impair the rights of any Holder set forth in Section 7.08 (as such section is in effect on the Issue Date);

 

(vi)          change the ranking of the Notes or the Guarantees;

 

(vii)         modify or amend the terms and conditions of the obligations of the Guarantors, as Guarantors of the Notes, in any manner that is adverse to the rights of the Holders, as such;

 

(viii)        make any note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;

 

(ix)          reduce the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or

 

(x)           make any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that requires the consent of each affected Holder.

 

For the avoidance of doubt, pursuant to clauses (i), (ii), (iii) and (iv) of this Section 8.02(A), no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may change the amount or type of consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date, Option Repurchase Date or the Maturity Date or upon conversion, or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder.

 

(B)          Holders Need Not Approve the Particular Form of any Amendment.  A consent of any Holder pursuant to this Section 8.02 need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.

 

Section 8.03.        NOTICE OF AMENDMENTS, SUPPLEMENTS AND WAIVERS.

 

Promptly after any amendment, supplement or waiver pursuant to Section 8.01 or 8.02 becomes effective, the Company will send to the Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states the effective date thereof.  The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such amendment, supplement or waiver.

 

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Section 8.04.        REVOCATION, EFFECT AND SOLICITATION OF CONSENTS; SPECIAL RECORD DATES; ETC.

 

(A)          Revocation and Effect of Consents.  The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B)) any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective.

 

(B)          Special Record Dates.  The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to consent or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8.  If a record date is fixed, then, notwithstanding anything to the contrary in Section 8.04(A), only Persons who are Holders as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke any consent previously given or to take any such action, regardless of whether such Persons continue to be Holders after such record date; provided, however, that no such consent will be valid or effective for more than one hundred and twenty (120) calendar days after such record date.

 

(C)          Solicitation of Consents.  For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.

 

(D)          Effectiveness and Binding Effect.  Each amendment, supplement or waiver pursuant to this Article 8 will become effective in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such Note (or such portion).

 

Section 8.05.        NOTATIONS AND EXCHANGES.

 

If any amendment, supplement or waiver changes the terms of a Note, then the Trustee or the Company may, in its discretion, require the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company on such Note and return such Note to such Holder.  Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Note that reflects the changed terms.  The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.05 will not impair or affect the validity of such amendment, supplement or waiver.

 

Section 8.06.        TRUSTEE TO EXECUTE SUPPLEMENTAL INDENTURES.

 

The Trustee will execute and deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however, that the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that

 

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adversely affects the Trustee’s rights, duties, liabilities or immunities.  In executing any amendment or supplemental indenture, the Trustee will be entitled to receive, and (subject to Sections 11.01 and 11.02) will be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of such amendment or supplemental indenture is authorized or permitted by this Indenture; and (B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company and the Guarantors in accordance with its terms.

 

Article 9.               GUARANTEES

 

Section 9.01.        GUARANTEES.

 

(A)          Generally.  By its execution of this Indenture (or any amended or supplemental indenture pursuant to Section 8.01(B)), each Guarantor acknowledges and agrees that it receives substantial benefits from the Company and that such Guarantor is providing its Guarantee for good and valuable consideration, including such substantial benefits.  Subject to this Article 9, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, regardless of the validity or enforceability of this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, that:

 

(i)            the principal of, any interest on, and any Conversion Consideration for, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, on a Fundamental Change Repurchase Date or any Optional Repurchase Date, upon Redemption or otherwise, and interest on the overdue principal of, any interest on, or any Conversion Consideration for, the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee under this Indenture or the Notes, will be promptly paid or delivered in full or performed, as applicable, in each case in accordance with this Indenture and the Notes; and

 

(ii)           in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration, on a Fundamental Change Repurchase Date or any Optional Repurchase Date, upon Redemption or otherwise,

 

(collectively, the “Guaranteed Obligations”), in each case subject to Section 9.02.

 

Upon the failure of any payment when due of any amount so guaranteed, and upon the failure of any performance so guaranteed, for whatever reason, the Guarantors will be jointly and severally obligated to pay or perform, as applicable, the same immediately.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

(B)          Guarantee Is Unconditional; Waiver of Diligence, Presentment, Etc.  Each Guarantor agrees that its Guarantee of the Guaranteed Obligations is unconditional, regardless of the validity or enforceability of this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, the absence of any action to enforce the same, any waiver or consent

 

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by any Holder with respect to any provisions of this Indenture or the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a guarantor.  Each Guarantor waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever, and covenants that this Guarantee will not be discharged except by complete performance of all Guaranteed obligations.

 

(C)          Reinstatement of Guarantee Upon Return of Payments.  If any Holder or the Trustee is required by any court or otherwise to return, to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any consideration paid or delivered by the Company or the Guarantors to such Holder or the Trustee, then each Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

 

(D)          Subrogation.  Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed by it under a Guarantee until payment in full of all Guaranteed Obligations.  Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 7, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations; and (ii) if any Guaranteed Obligations are accelerated pursuant to Article 7, then such Guaranteed Obligations will, whether or not due and payable, immediately become due and payable by the Guarantors.  Each Guarantor will have the right to seek contribution from any non-paying Guarantor, but only if the exercise of such right does not impair the rights of the Holders under any Guarantee.

 

Section 9.02.        LIMITATION ON GUARANTOR LIABILITY.

 

Each Guarantor, and, by its acceptance of any Note, each Holder, confirms that each Guarantor and the Holders intend that the Guarantee of each Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee.  Each of the Trustee, the Holders and each Guarantor irrevocably agrees that the obligations of each Guarantor under its Guarantee will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.

 

Section 9.03.        EXECUTION AND DELIVERY OF GUARANTEE.

 

The execution by each Guarantor of this Indenture (or an amended or supplemental indenture pursuant to Section 8.01(B)) evidences the Guarantee of such Guarantor, and the delivery of any Note by the Trustee after its authentication constitutes due delivery of each Guarantee on behalf of each Guarantor.  A Guarantee’s validity will not be affected by the failure

 

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of any officer of a Guarantor executing this Indenture or any such amended or supplemental indenture on such Guarantor’s behalf to hold, at the time any Note is authenticated, the same or any other office at such Guarantor, and each Guarantee will be valid and enforceable even if no notation, certificate or other instrument is set upon or attached to, or otherwise executed and delivered to the Holder of, any Note.

 

Section 9.04.        WHEN GUARANTORS MAY MERGE, ETC.

 

(A)          Generally.  Except as provided in Section 9.07 hereof, no Guarantor will (x) consolidate with or merge with or into another Person or (y) sell, lease, assign, transfer, convey  or otherwise dispose of, in one transaction or a series of related transactions, all or substantially all of the assets of such Guarantor and its Subsidiaries, taken as a whole, to another Person (a “Guarantor Business Combination Event”), unless:

 

(i)            the Person (the “Successor Guarantor”) formed by or surviving any such consolidation or merger (if other than such guarantor) or to which such sale, lease, assignment, transfer, conveyance or other disposition has been made expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination Event, a supplemental indenture or other documents and agreements reasonably satisfactory to the Trustee) all of such Guarantor’s obligations under this Indenture and such Guarantor’s Guarantee of the Notes; and

 

(ii)           immediately after giving effect to such Guarantor Business Combination Event, no Default or Event of Default will have occurred and be continuing;

 

provided, however, that, except as provided in Article 6, nothing in this Section 9.04(A) will prevent any Guarantor from consolidating with or merging with or into, or selling, leasing, assigning, transferring, conveying or otherwise disposing, in one transaction or a series of transactions, all or substantially all of the assets of such Guarantor to the Company or another Guarantor.

 

(B)          Delivery of Officer’s Certificate and Opinion of Counsel to the Trustee.  Before the effective time of any Guarantor Business Combination Event, the Company will deliver to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Guarantor Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 9.04(A); and (ii) all conditions precedent to such Guarantor Business Combination Event provided in this Indenture have been satisfied.

 

(C)          Successor Corporation Substituted.  At the effective time of any Guarantor Business Combination Event that complies with Section 9.04(A) and Section 9.04(B), the Successor Guarantor (if not the applicable Guarantor) will succeed to, and may exercise every right and power of, such Guarantor under this Indenture and the Notes with the same effect as if such Successor Guarantor had been named as a Guarantor in this Indenture and the Notes, and, except in the case of a lease, the predecessor Guarantor will be discharged from its obligations under this Indenture and the Notes.

 

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Section 9.05.        ADDITIONAL SUBSIDIARY GUARANTEES.

 

If, (A) the Company or any of its Subsidiaries acquires or creates another Subsidiary after the date hereof, and such Subsidiary guarantees any Obligations of the Company under the Credit Agreement, or (B) any Subsidiary that does not currently guarantee any Obligations of the Company under the Credit Agreement subsequently guarantees any Obligations of the Company under the Credit Agreement; or (C) if there is no Indebtedness of the Company outstanding under the Credit Agreement at that time, any Subsidiary of the Company (including any newly acquired or created Subsidiary) guarantees any Obligations with respect to any of the Company’s other Indebtedness for borrowed money, then such newly acquired or created Subsidiary or Subsidiary that subsequently guarantees Obligations under the Credit Agreement or other of the Company’s Indebtedness for borrowed money, as the case may be, will become a Guarantor of the Notes and execute a supplemental indenture and deliver an opinion of counsel satisfactory to the Trustee within sixty (60) Business Days of the date on which it was acquired or created or guaranteed other of the Company’s Indebtedness for borrowed money, as the case may be.

 

Section 9.06.        APPLICATION OF CERTAIN PROVISIONS TO THE GUARANTORS.

 

(A)          Officer’s Certificates and Opinions of Counsel.  Upon any request or application by any Guarantor to the Trustee to take any action under this Indenture, the Trustee will be entitled to receive an Officer’s Certificate and an Opinion of Counsel pursuant to Section 12.02 with the same effect as if each reference to the Company in Section 12.02 or in the definitions of “Officer,” “Officer’s Certificate” or “Opinion of Counsel” were instead a reference to such Guarantor.

 

(B)          Company Order.  A Company Order may be given by any Guarantor with the same effect as if each reference to the Company in the definitions of “Company Order” or “Officer” were instead a reference to such Guarantor.

 

(C)          Notices and Demands.  Any notice or demand that this Indenture requires or permits to be given by the Trustee, or by any Holders, to the Company may instead be given to any Guarantor.

 

Section 9.07.        RELEASE OF GUARANTEES.

 

The Guarantee of a Guarantor will be released automatically:

 

(A)                               in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company;

 

(B)                               in connection with any sale or other disposition of Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company, if following such sale or other disposition, that Guarantor is not a direct or indirect subsidiary of the Company;

 

(C)                               upon satisfaction and discharge of the Notes as provided in Article 10;

 

(D)                               upon a dissolution of a Guarantor that is permitted under this Indenture; or

 

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(E)                                otherwise with respect to the Guarantee of any Guarantor:

 

(a)                                 upon the prior consent of Holders of at least a majority in aggregate principal amount of the Notes then outstanding;

 

(b)                                 if the Company has Indebtedness outstanding under the Credit Agreement at that time, upon the consent of the requisite lenders under the Credit Agreement to the release of such Guarantor’s guarantee of all Obligations under the Credit Agreement, or, if there is no Indebtedness of the Company outstanding under the Credit Agreement at that time, upon the requisite consent of the Holders of all other Indebtedness for borrowed money of the Company that is guaranteed by such Guarantor at that time outstanding to the release of such Guarantor’s guarantee of all Obligations with respect to all other Indebtedness for borrowed money that is guaranteed by such Guarantor at that time outstanding; or

 

(c)                                  if the Company has Indebtedness outstanding under the Credit Agreement at that time, upon the release of such Guarantor’s guarantee of all Obligations under the Credit Agreement, or, if there is no Indebtedness of the Company’s outstanding under the Credit Agreement at that time, upon the release of such Guarantor’s guarantee of all Obligations with respect to all other Indebtedness for borrowed money of the Company’s at that time outstanding.

 

Upon delivery by the Company to the Trustee of an Officers’ Certificate to the effect that the covenants and conditions precedent provided for in this Indenture relating to the release of any Guarantor have been satisfied, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Guarantee.

 

Article 10.            SATISFACTION AND DISCHARGE

 

Section 10.01.      TERMINATION OF COMPANY’S OBLIGATIONS.

 

This Indenture will be discharged, and will cease to be of further effect as to all Notes issued under this Indenture, when:

 

(A)          all Notes then outstanding (other than Notes replaced pursuant to Section 2.13) have (i) been delivered to the Trustee for cancellation; or (ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, an Optional Repurchase Date, the Maturity Date, upon conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;

 

(B)          the Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration, the Conversion Agent), in each case for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or other property due on all Notes then outstanding (other than Notes replaced pursuant to Section 2.13);

 

(C)          the Company has paid all other amounts payable by it under this Indenture; and

 

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(D)          the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have been satisfied;

 

provided, however, that Article 11 and Section 12.01 (and any other sections which by their terms expressly survive discharge) will survive such discharge and, until no Notes remain outstanding, Section 2.15 and the obligations of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property deposited with them will survive such discharge.

 

At the Company’s request, the Trustee will acknowledge the satisfaction and discharge of this Indenture.

 

Section 10.02.      REPAYMENT TO COMPANY.

 

Subject to applicable unclaimed property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s request, promptly deliver to the Company) any cash, Conversion Consideration or other property held by any of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due.  After such delivery to the Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash, Conversion Consideration or other property, and Holders entitled to the payment or delivery of such cash, Conversion Consideration or other property must look to the Company for payment as a general creditor of the Company.

 

Section 10.03.      REINSTATEMENT.

 

If any of the Trustee, the Paying Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 10.01 because of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits such application, then the discharge of this Indenture pursuant to Section 10.01 will be rescinded; provided, however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof, then the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if any, held by the Trustee, the Paying Agent or the Conversion Agent, as applicable.

 

Article 11.            TRUSTEE

 

Section 11.01.      DUTIES OF THE TRUSTEE.

 

(A)          If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(B)          Except during the continuance of an Event of Default:

 

(i)            the duties of the Trustee will be determined solely by the express provisions

 

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of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee; and

 

(ii)           in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are provided to the Trustee and conform to the requirements of this Indenture.  However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

(C)          The Trustee may not be relieved from liabilities for its negligence, bad faith or willful misconduct (in each case as determined by a non-appealable final judgment of a court of competent jurisdiction), except that:

 

(i)            this paragraph will not limit the effect of Section 11.01(B);

 

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

 

(iii)          the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 7.06.

 

(D)          Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 11.01, regardless of whether such provision so expressly provides.

 

(E)           No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.

 

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

 

(G)          The Paying Agent, the Conversion Agent and the Registrar will be entitled to the same rights, protections, immunities and indemnities as the Trustee.

 

Section 11.02.      RIGHTS OF THE TRUSTEE.

 

(A)          The Trustee may conclusively rely on any document that it believes to be genuine and signed or presented by the proper Person, and the Trustee need not investigate any fact or matter stated in such document.

 

(B)          Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate.  The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate.  The Trustee may consult with counsel; and the advice of such counsel will constitute full and complete authorization of the Trustee to take or omit to take

 

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any action in good faith in reliance thereon without liability.

 

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

 

(D)          The Trustee will not be liable for any action it takes or omits to take in good faith and that it believes to be authorized or within the rights or powers vested in it by this Indenture.

 

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

 

(F)           The Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless such Holder has offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that it may incur in complying with such request or direction.

 

(G)          The Trustee will not have any duty or liability in respect of any recording, filing, or depositing of this Indenture or any other agreement or instrument.

 

(H)          The Trustee will not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document.

 

(I)            The Trustee will not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has received written notice thereof at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

 

(J)            In no event will the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee will have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or failure to provide timely written direction.

 

(K)          In no event will the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), whether or not foreseeable, even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action in which such damages are sought.

 

(L)           The right of the Trustee to perform any discretionary act enumerated in this Indenture or any related document will not be construed as a duty.

 

(M)         The Trustee will be fully justified in failing or refusing to take any action under this Indenture or any other related document if such action (A) would, in the reasonable opinion of the Trustee, in good faith (which may be based on the advice or opinion of counsel), be contrary to applicable law, this Indenture or any other related document, or (B) is not provided for in this Indenture or any other related document.

 

(N)          The Trustee may earn compensation in the form of short-term interest on items like

 

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uncashed distribution checks (from the date issued until the date cashed), funds that the Trustee is directed not to invest, deposits awaiting investment direction or received too late to be invested overnight in previously directed investments.

 

Section 11.03.      INDIVIDUAL RIGHTS OF THE TRUSTEE.

 

The Trustee, in its individual or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company or any of its Affiliates with the same rights that it would have if it were not Trustee; provided, however, that if the Trustee acquires a “conflicting interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then it must eliminate such conflict within ninety (90) days or resign as Trustee.  Each Note Agent will have that same rights and duties as the trustee under this Section 11.03.

 

Section 11.04.      TRUSTEE’S DISCLAIMER.

 

The Trustee will not be (A) responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible for any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other than the Trustee’s certificate of authentication.

 

Section 11.05.      NOTICE OF DEFAULTS.

 

If a Default or Event of Default occurs and is continuing and is known to a Responsible Officer of the Trustee, then the Trustee will send Holders a notice of such Default or Event of Default within ninety (90) days after it occurs or, if it is not known to the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes known to a Responsible Officer; provided, however, that, except in the case of a Default or Event of Default in the payment of the principal of, or interest on, any Note, the Trustee may withhold such notice if and for so long as it in good faith determines that withholding such notice is in the interests of the Holders.

 

Section 11.06.      COMPENSATION AND INDEMNITY.

 

(A)          The Company will, from time to time, pay the Trustee reasonable compensation for its acceptance of this Indenture and services under this Indenture.  The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust.  In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

(B)          The Company and the Guarantors will indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this

 

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Indenture against the Company (including this Section 11.06) and defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties under this Indenture, except to the extent any such loss, liability or expense may be attributable to its negligence, bad faith or willful misconduct (as determined by a final non-appealable judgment issued by a court of competent jurisdiction).  The Trustee will promptly notify the Company of any claim for which it may seek indemnity, but the Trustee’s failure to so notify the Company will not relieve the Company of its obligations under this Section 11.06(B).  The Company will defend such claim, and the Trustee will cooperate in such defense.  If the Trustee is advised by counsel that it may have defenses available to it that are in conflict with the defenses available to the Company, or that there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company will pay the reasonable fees and expenses of such counsel (including the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether such a conflict exists).  The Company need not pay for any settlement of any such claim made without its consent, which consent will not be unreasonably withheld.

 

(C)          The obligations of the Company and the Guarantors under this Section 11.06 will survive the resignation or removal of the Trustee and the discharge of this Indenture.

 

(D)          To secure the Company’s and the Guarantors’ payment obligations in this Section 11.06, the Trustee will have a lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular Notes, which lien will survive the discharge of this Indenture.

 

(E)           If the Trustee incurs expenses or renders services after an Event of Default pursuant to clause (ix) or (x) of Section 7.01(A) occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

Section 11.07.      REPLACEMENT OF THE TRUSTEE.

 

(A)          Notwithstanding anything to the contrary in this Section 11.07, a resignation or removal of the Trustee, and the appointment of a successor Trustee, will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section 11.07.

 

(B)          The Trustee may resign at any time and be discharged from the trust created by this Indenture by so notifying the Company.  The Holders of a majority in aggregate principal amount of the Notes then outstanding may remove the Trustee by so notifying the Trustee and the Company in writing.  The Company may remove the Trustee if:

 

(i)            the Trustee fails to comply with Section 11.09;

 

(ii)           the Trustee is adjudged to be bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(iii)          a custodian or public officer takes charge of the Trustee or its property; or

 

(iv)          the Trustee becomes incapable of acting.

 

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(C)          If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, then (i) the Company will promptly appoint a successor Trustee; and (ii) at any time within one (1) year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the Notes then outstanding may appoint a successor Trustee to replace such successor Trustee appointed by the Company.

 

(D)          If a successor Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, then the retiring Trustee, the Company or the Holders of at least ten percent (10%) in aggregate principal amount of the Notes then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(E)           If the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section 11.09, then such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(F)           A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the resignation or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee will send notice of its succession to Holders.  The retiring Trustee will, upon payment of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee to the successor Trustee, which property will, for the avoidance of doubt, be subject to the lien provided for in Section 11.06(D).

 

Section 11.08.      SUCCESSOR TRUSTEE BY MERGER, ETC.

 

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another company, then such company will become the successor Trustee without any further act.

 

Section 11.09.      ELIGIBILITY; DISQUALIFICATION.

 

There will at all times be a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of any state thereof, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.

 

Article 12.            MISCELLANEOUS

 

Section 12.01.      NOTICES.

 

Any notice or communication by the Company or any Guarantor or the Trustee to the other will be deemed to have been duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, electronic transmission

 

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or other similar means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address, which initially is as follows:

 

If to the Company or any Guarantor:

 

NRG Energy, Inc.

804 Carnegie Center

Princeton, NJ 08540

Attention: Corporate Secretary

 

with a copy (which will not constitute notice) to:

 

Baker Botts L.L.P.

2001 Ross Avenue

Dallas, TX 75201

Telecopier No.: (214) 661-4783

Attention: Preston Bernhisel

 

If to the Trustee:

 

Delaware Trust Company

251 Little Falls Drive
 Wilmington, DE 19808
 Telecopier No.: (302) 636-8666
  Attention: Trust Administration

 

with a copy (which will not constitute notice) to:

 

Seward & Kissel LLP

One Battery Park Plaza

New York, New York 10004

Attn: Gregg Bateman

 

The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

 

All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing

 

86











 

next day delivery, to its address shown on the Register; provided, however, that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given in writing).  The failure to send a notice or communication to a Holder, or any defect in such notice or communication, will not affect its sufficiency with respect to any other Holder.

 

If the Trustee is then acting as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee, the Trustee will cause any notice prepared by the Company to be sent to any Holder(s) pursuant to the Depositary Procedures, provided such request is evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least two (2) Business Days before the date such notice is to be so sent.  For the avoidance of doubt, such Company Order need not be accompanied by an Officer’s Certificate or Opinion of Counsel.  The Trustee will not have any liability relating to the contents of any notice that it sends to any Holder pursuant to any such Company Order.

 

If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the addressee receives it.

 

Notwithstanding anything to the contrary in this Indenture or the Notes, whenever any provision of this Indenture requires a party to send notice to another party, no such notice need be sent if the sending party and the recipient are the same Person acting in different capacities.

 

Section 12.02.      DELIVERY OF OFFICER’S CERTIFICATE AND OPINION OF COUNSEL AS TO CONDITIONS PRECEDENT.

 

Upon any request or application by the Company to the Trustee to take any action under this Indenture (other than the initial authentication of Notes under this Indenture), the Company will furnish to the Trustee:

 

(A)          an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee that complies with Section 12.03 and states that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this Indenture relating to such action have been satisfied; and

 

(B)          an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee that complies with Section 12.03 and states that, in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied.

 

Section 12.03.      STATEMENTS REQUIRED IN OFFICER’S CERTIFICATE AND OPINION OF COUNSEL.

 

Each Officer’s Certificate (other than an Officer’s Certificate pursuant to Section 3.05) or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture will include:

 

(A)          a statement that the signatory thereto has read such covenant or condition;

 

87












 

(B)          a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained therein are based;

 

(C)          a statement that, in the opinion of such signatory, he, she or it has made such examination or investigation as is necessary to enable him, her or it to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

 

(D)          a statement as to whether, in the opinion of such signatory, such covenant or condition has been satisfied.

 

Section 12.04.      RULES BY THE TRUSTEE, THE REGISTRAR AND THE PAYING AGENT.

 

The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 12.05.      NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS.

 

No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or any Guarantor under this Indenture, the Notes or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.  By accepting any Note, each Holder waives and releases all such liability.  Such waiver and release are part of the consideration for the issuance of the Notes.

 

Section 12.06.      GOVERNING LAW; WAIVER OF JURY TRIAL.

 

THIS INDENTURE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE, OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  EACH OF THE COMPANY, EACH GUARANTOR AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE, THE NOTES OR THE GUARANTEES.

 

Section 12.07.      SUBMISSION TO JURISDICTION.

 

Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York, in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 12.01 will

 

88











 

be effective service of process for any such suit, action or proceeding brought in any such court.  Each of the Company, each Guarantor, the Trustee and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.

 

Section 12.08.      NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

 

Neither this Indenture nor the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.

 

Section 12.09.      SUCCESSORS.

 

All agreements of the Company in this Indenture and the Notes will bind its successors.  All agreements of the Trustee in this Indenture will bind its successors.

 

Section 12.10.      FORCE MAJEURE.

 

In no event will the Trustee or any Note Agent be liable for any failure or delay in the performance of its obligations under this Indenture or any related documents because of circumstances beyond the Trustee’s or Note Agent’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Indenture or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Trustee’s or Note Agent’s control whether or not of the same class or kind as specified above.

 

Section 12.11.      U.S.A. PATRIOT ACT.

 

The Company acknowledges that, in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions, in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The Company agrees to provide the Trustee with such information as it may request to enable the Trustee to comply with the U.S.A. Patriot Act.

 

89











 

Section 12.12.      CALCULATIONS.

 

Except as otherwise provided in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including determinations of the Last Reported Sale Price, the Daily Cash Amount, the Daily Share Amount, accrued interest on the Notes and the Conversion Rate.

 

The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders.  The Company will provide a schedule of its calculations to the Trustee and the Conversion Agent, and each of the Trustee and the Conversion Agent may rely conclusively on the accuracy of the Company’s calculations without independent verification.  The Trustee will promptly forward a copy of each such schedule to a Holder upon its written request therefor.

 

Section 12.13.      SEVERABILITY.

 

If any provision of this Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of this Indenture or the Notes will not in any way be affected or impaired thereby.

 

Section 12.14.      COUNTERPARTS.

 

The parties may sign any number of copies of this Indenture.  Each signed copy will be an original, and all of them together represent the same agreement.  Delivery of an executed counterpart of this Indenture by facsimile, electronically in portable document format or in any other format will be effective as delivery of a manually executed counterpart.

 

Section 12.15.      TABLE OF CONTENTS, HEADINGS, ETC.

 

The table of contents and the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.

 

Section 12.16.      WITHHOLDING TAXES.

 

Each Holder of a Note agrees, and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that if the Company or other applicable withholding agent pays withholding taxes or backup withholding on behalf of such Holder or beneficial owner as a result of an adjustment to the Conversion Rate, then the Company or such withholding agent, as applicable, may, at its option, set off such payments against payments of cash or the delivery of other Conversion Consideration on such Note, any payments on the Common Stock or sales proceeds received by, or other funds or assets of, such Holder or the beneficial owner of such Note.

 

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

 

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

 

	
 
    	
 
    
	
 
    	
NRG   ENERGY, INC
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Gaëtan C. Frotté
    
	
 
    	
 
    	
Name:   Gaëtan C. Frotté
    
	
 
    	
 
    	
Title:   Senior Vice President & Treasurer
    


 

[Signature Page to Indenture]

 











 

	
 
    	
DELAWARE   TRUST COMPANY, as Trustee
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Thomas Musarra
    
	
 
    	
 
    	
Name:   Thomas Musarra
    
	
 
    	
 
    	
Title:   Vice President
    


 

[Signature Page to Indenture]

 











 

	
 
    	
GUARANTORS:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ACE   ENERGY, INC.
    
	
 
    	
ALLIED   HOME WARRANTY GP LLC
    
	
 
    	
ALLIED   WARRANTY LLC
    
	
 
    	
ARTHUR   KILL POWER LLC
    
	
 
    	
ASTORIA   GAS TURBINE POWER LLC
    
	
 
    	
BAYOU   COVE PEAKING POWER, LLC
    
	
 
    	
BIDURENERGY, INC.
    
	
 
    	
CABRILLO   POWER I LLC
    
	
 
    	
CABRILLO   POWER II LLC
    
	
 
    	
CARBON   MANAGEMENT SOLUTIONS LLC
    
	
 
    	
CIRRO   ENERGY SERVICES, INC.
    
	
 
    	
CIRRO   GROUP, INC.
    
	
 
    	
CONEMAUGH   POWER LLC
    
	
 
    	
CONNECTICUT   JET POWER LLC
    
	
 
    	
COTTONWOOD   DEVELOPMENT LLC
    
	
 
    	
COTTONWOOD   GENERATING PARTNERS I LLC
    
	
 
    	
COTTONWOOD   GENERATING PARTNERS II LLC
    
	
 
    	
COTTONWOOD   GENERATING PARTNERS III LLC
    
	
 
    	
COTTONWOOD   ENERGY COMPANY LP
    
	
 
    	
COTTONWOOD   TECHNOLOGY PARTNERS LP
    
	
 
    	
DEVON   POWER LLC
    
	
 
    	
DUNKIRK   POWER LLC
    
	
 
    	
EASTERN   SIERRA ENERGY COMPANY LLC
    
	
 
    	
EL   SEGUNDO POWER, LLC
    
	
 
    	
EL   SEGUNDO POWER II, LLC
    
	
 
    	
ENERGY   CHOICE SOLUTIONS LLC
    
	
 
    	
ENERGY   PLUS HOLDINGS LLC
    
	
 
    	
ENERGY   PLUS NATURAL GAS LLC
    
	
 
    	
EVERYTHING   ENERGY LLC
    
	
 
    	
FORWARD   HOME SECURITY, LLC
    
	
 
    	
GCP   FUNDING COMPANY, LLC
    
	
 
    	
GREEN   MOUNTAIN ENERGY COMPANY
    
	
 
    	
GREGORY   PARTNERS, LLC
    
	
 
    	
GREGORY   POWER PARTNERS LLC
    
	
 
    	
HUNTLEY   POWER LLC
    
	
 
    	
INDEPENDENCE   ENERGY ALLIANCE LLC
    
	
 
    	
INDEPENDENCE   ENERGY GROUP LLC
    
	
 
    	
INDEPENDENCE   ENERGY NATURAL GAS LLC
    
	
 
    	
INDIAN   RIVER OPERATIONS INC.
    
	
 
    	
INDIAN   RIVER POWER LLC
    
	
 
    	
KEYSTONE   POWER LLC
    
	
 
    	
LOUISIANA   GENERATING LLC
    
	
 
    	
MERIDEN   GAS TURBINES LLC
    
	
 
    	
MIDDLETOWN   POWER LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Gaëtan C. Frotté
    
	
 
    	
 
    	
Name:   Gaëtan C. Frotté
    
	
 
    	
 
    	
Title:   Treasurer
    


 

[Signature Page to Indenture]

 











 

	
 
    	
 
    
	
 
    	
MONTVILLE   POWER LLC
    
	
 
    	
NEO   CORPORATION
    
	
 
    	
NEW   GENCO GP, LLC
    
	
 
    	
NORWALK   POWER LLC
    
	
 
    	
NRG   ADVISORY SERVICES LLC
    
	
 
    	
NRG   AFFILIATE SERVICES INC.
    
	
 
    	
NRG   ARTHUR KILL OPERATIONS INC.
    
	
 
    	
NRG   ASTORIA GAS TURBINE OPERATIONS INC.
    
	
 
    	
NRG   BAYOU COVE LLC
    
	
 
    	
NRG   BUSINESS SERVICES LLC
    
	
 
    	
NRG   CABRILLO POWER OPERATIONS INC.
    
	
 
    	
NRG   CALIFORNIA PEAKER OPERATIONS LLC
    
	
 
    	
NRG   CEDAR BAYOU DEVELOPMENT COMPANY, LLC
    
	
 
    	
NRG   CONNECTED HOME LLC
    
	
 
    	
NRG   CONNECTICUT AFFILIATE SERVICES INC.
    
	
 
    	
NRG   CURTAILMENT SOLUTIONS, INC.
    
	
 
    	
NRG   DEVELOPMENT COMPANY INC.
    
	
 
    	
NRG   DEVON OPERATIONS INC.
    
	
 
    	
NRG   DISPATCH SERVICES LLC
    
	
 
    	
NRG   DISTRIBUTED ENERGY RESOURCES HOLDINGS LLC
    
	
 
    	
NRG   DISTRIBUTED GENERATION PR LLC
    
	
 
    	
NRG   DUNKIRK OPERATIONS INC.
    
	
 
    	
NRG   ECOKAP HOLDINGS LLC
    
	
 
    	
NRG   EL SEGUNDO OPERATIONS INC.
    
	
 
    	
NRG   ENERGY EFFICIENCY-L LLC
    
	
 
    	
NRG   ENERGY LABOR SERVICES LLC
    
	
 
    	
NRG   ENERGY SERVICES GROUP LLC
    
	
 
    	
NRG   ENERGY SERVICES INTERNATIONAL INC.
    
	
 
    	
NRG   GENERATION HOLDINGS INC.
    
	
 
    	
NRG   GREENCO LLC
    
	
 
    	
NRG   HOME & BUSINESS SOLUTIONS LLC
    
	
 
    	
NRG   HOME SERVICES LLC
    
	
 
    	
NRG   HOME SOLUTIONS LLC
    
	
 
    	
NRG   HOME SOLUTIONS PRODUCT LLC
    
	
 
    	
NRG   HOMER CITY SERVICES LLC
    
	
 
    	
NRG   HQ DG LLC
    
	
 
    	
NRG   HUNTLEY OPERATIONS INC.
    
	
 
    	
NRG   IDENTITY PROTECT LLC
    
	
 
    	
NRG   ILION LP LLC
    
	
 
    	
NRG   INTERNATIONAL LLC
    
	
 
    	
NRG   MEXTRANS INC.
    
	
 
    	
NRG MIDATLANTIC   AFFILIATE SERVICES INC.
    
	
 
    	
NRG   MIDDLETOWN OPERATIONS INC.
    
	
 
    	
NRG   MONTVILLE OPERATIONS INC.
    
	
 
    	
NRG   NEW ROADS HOLDINGS LLC
    
	
 
    	
NRG   NORTH CENTRAL OPERATIONS INC.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Gaëtan C. Frotté
    
	
 
    	
 
    	
Name:   Gaëtan C. Frotté
    
	
 
    	
 
    	
Title:   Treasurer
    


 

[Signature Page to Indenture]

 











 

	
 
    	
 
    
	
 
    	
NRG   NORTHEAST AFFILIATE SERVICES INC.
    
	
 
    	
NRG   NORWALK HARBOR OPERATIONS INC.
    
	
 
    	
NRG   OSWEGO HARBOR POWER OPERATIONS INC.
    
	
 
    	
NRG   PACGEN INC.
    
	
 
    	
NRG   PORTABLE POWER LLC
    
	
 
    	
NRG   POWER MARKETING LLC
    
	
 
    	
NRG   RENTER’S PROTECTION LLC
    
	
 
    	
NRG   RETAIL LLC
    
	
 
    	
NRG   RETAIL NORTHEAST LLC
    
	
 
    	
NRG   ROCKFORD ACQUISITION LLC
    
	
 
    	
NRG   SAGUARO OPERATIONS INC.
    
	
 
    	
NRG   SECURITY LLC
    
	
 
    	
NRG   SERVICES CORPORATION
    
	
 
    	
NRG   SIMPLYSMART SOLUTIONS LLC
    
	
 
    	
NRG   SOUTH CENTRAL AFFILIATE SERVICES INC.
    
	
 
    	
NRG   SOUTH CENTRAL GENERATING LLC
    
	
 
    	
NRG   TEXAS C&I SUPPLY LLC
    
	
 
    	
NRG   TEXAS GREGORY LLC
    
	
 
    	
NRG   TEXAS HOLDING INC.
    
	
 
    	
NRG   TEXAS LLC
    
	
 
    	
NRG   TEXAS POWER LLC
    
	
 
    	
NRG   WARRANTY SERVICES LLC
    
	
 
    	
NRG   WEST COAST LLC
    
	
 
    	
NRG   WESTERN AFFILIATE SERVICES INC.
    
	
 
    	
O’BRIEN   COGENERATION, INC. II
    
	
 
    	
ONSITE   ENERGY, INC.
    
	
 
    	
OSWEGO   HARBOR POWER LLC
    
	
 
    	
RELIANT   ENERGY NORTHEAST LLC
    
	
 
    	
RELIANT   ENERGY POWER SUPPLY, LLC
    
	
 
    	
RELIANT   ENERGY RETAIL HOLDINGS, LLC
    
	
 
    	
RELIANT   ENERGY RETAIL SERVICES, LLC
    
	
 
    	
RERH   HOLDINGS, LLC
    
	
 
    	
SAGUARO   POWER LLC
    
	
 
    	
SOMERSET   OPERATIONS INC.
    
	
 
    	
SOMERSET   POWER LLC
    
	
 
    	
TEXAS   GENCO GP, LLC
    
	
 
    	
TEXAS   GENCO HOLDINGS, INC.
    
	
 
    	
TEXAS   GENCO LP, LLC
    
	
 
    	
US   RETAILERS LLC
    
	
 
    	
VIENNA   OPERATIONS INC.
    
	
 
    	
VIENNA   POWER LLC
    
	
 
    	
WCP   (GENERATION) HOLDINGS LLC
    
	
 
    	
WEST   COAST POWER LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Gaëtan C. Frotté
    
	
 
    	
 
    	
Name: Gaëtan C. Frotté
    
	
 
    	
 
    	
Title: Treasurer
    


 

[Signature Page to Indenture]

 











 

	
 
    	
ENERGY ALTERNATIVES   WHOLESALE, LLC
    
	
 
    	
NRG OPERATING   SERVICES, INC.
    
	
 
    	
NRG SOUTH CENTRAL   OPERATIONS INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Krisshna Koomar
    
	
 
    	
 
    	
Name: Krisshna Koomar
    
	
 
    	
 
    	
Title: Vice President
    
	
 
    	
 
    
	
 
    	
NRG CONSTRUCTION LLC
    
	
 
    	
NRG ENERGY SERVICES LLC
    
	
 
    	
NRG MAINTENANCE   SERVICES LLC
    
	
 
    	
NRG RELIABILITY   SOLUTIONS LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Rachel Smith
    
	
 
    	
 
    	
Name: Rachel Smith
    
	
 
    	
 
    	
Title: Treasurer
    
	
 
    	
 
    
	
 
    	
ENERGY PROTECTION   INSURANCE COMPANY
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Krisshna Koomar
    
	
 
    	
 
    	
Name: Krisshna Koomar
    
	
 
    	
 
    	
Title: Vice President
    
	
 
    	
 
    
	
 
    	
NRG ILION LIMITED   PARTNERSHIP
    
	
 
    	
 
    
	
 
    	
By: NRG Rockford   Acquisition LLC, its General Partner
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Gaëtan Frotté
    
	
 
    	
 
    	
 
    	
Name: Gaëtan Frotté
    
	
 
    	
 
    	
 
    	
Title: Treasurer
    
	
 
    	
 
    
	
 
    	
NRG SOUTH TEXAS LP
    
	
 
    	
 
    
	
 
    	
By: Texas Genco GP,   LLC, its General Partner
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Gaëtan Frotté
    
	
 
    	
 
    	
Name: Gaëtan Frotté
    
	
 
    	
 
    	
Title: Treasurer
    
	
 
    	
 
    
	
 
    	
TEXAS GENCO SERVICES,   LP
    
	
 
    	
 
    
	
 
    	
By: New Genco GP, LLC,   its General Partner
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Gaëtan Frotté
    
	
 
    	
 
    	
 
    	
Name: Gaëtan Frotté
    
	
 
    	
 
    	
 
    	
Title: Treasurer
    
	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Gaëtan C. Frotté
    
	
 
    	
 
    	
 
    	
Name: Gaëtan C. Frotté
    
	
 
    	
 
    	
 
    	
Title: Senior Vice   President & Treasurer
    
					


 

[Signature Page to Indenture]

 












 

EXHIBIT A

 

FORM OF NOTE

 

[Insert Global Note Legend, if applicable]

 

[Insert Restricted Note Legend, if applicable]

 

[Insert Non-Affiliate Legend]

 

NRG ENERGY, INC.

 

2.75% Convertible Senior Note due 2048

 

CUSIP No.:           [   ][Insert for a “restricted” CUSIP number: (1)]                                         Certificate No.                [   ]

ISIN No.:               [   ][Insert for a “restricted” ISIN number: (1)]

 

NRG Energy, Inc. a Delaware corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of [   ] dollars ($[   ]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)](2) on June 1, 2048 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.

 

	
Interest   Payment Dates:
    	
June 1   and December 1 of each year, commencing on [date].
    
	
 
    	
 
    
	
Regular   Record Dates:
    	
May 15   and November 15.
    


 

Additional provisions of this Note are set forth on the other side of this Note.

 

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

 




(1)         This Note will be deemed to be identified by CUSIP No. [   ] and ISIN No. [   ] from and after such time when the Company delivers, pursuant to Section 2.12 of the within-mentioned Indenture, written notice to the Trustee of the deemed removal of the Restricted Note Legend affixed to this Note.

(2)         Insert bracketed language for Global Notes only.

 

A-1











 

IN WITNESS WHEREOF, NRG Energy, Inc. has caused this instrument to be duly executed as of the date set forth below.

 

	
 
    	
NRG   ENERGY, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
Date:
    	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

A-2











 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

Delaware Trust Company, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.

 

	
Date:
    	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
Authorized Signatory
    


 

A-3











 

NRG ENERGY, INC.

 

2.75% Convertible Senior Note due 2048

 

This Note is one of a duly authorized issue of notes of NRG Energy, Inc. a Delaware corporation (the “Company”), designated as its 2.75% Convertible Senior Notes due 2048 (the “Notes”), all issued or to be issued pursuant to an indenture, dated as of May 24, 2018 (as the same may be amended from time to time, the “Indenture”), among the Company, the Guarantors and Delaware Trust Company, as trustee.  Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.

 

The Indenture sets forth the rights and obligations of the Company, the Guarantors, the Trustee and the Holders and the terms of the Notes.  Notwithstanding anything to the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture will control.

 

1.             Interest.  This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture.  Stated Interest on this Note will begin to accrue from, and including, [date].

 

2.             Maturity.  This Note will mature on June 1, 2048, unless earlier repurchased, redeemed or converted.

 

3.             Guarantees. The Company’s obligations under the Indenture and the Notes are fully and unconditionally guaranteed by the Guarantors as provided in Article 9 of the Indenture.

 

4.             Method of Payment.  Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.

 

5.             Persons Deemed Owners.  The Holder of this Note will be treated as the owner of this Note for all purposes.

 

6.             Denominations; Transfers and Exchanges.  All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized Denominations.  Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and delivering any required documentation or other materials.

 

7.             Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change.  If a Fundamental Change occurs, then each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture.

 

8.             Right of Holders to Require the Company to Repurchase Notes on the Optional Repurchase Dates.  Each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on each

 

A-4











 

Optional Repurchase Date for cash in the manner, and subject to the terms, set forth in Section 4.03 of the Indenture.

 

9.             Right of the Company to Redeem the Notes.  The Company will have the right to redeem the Notes for cash in the manner, and subject to the terms, set forth in Section 4.04 of the Indenture.

 

10.          Conversion.  The Holder of this Note may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in Article 5 of the Indenture.

 

11.          When the Company May Merge, Etc.  Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to a Business Combination Event.

 

12.          Defaults and Remedies.  If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7 of the Indenture.

 

13.          Amendments, Supplements and Waivers.  The Company, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes or waive compliance with any provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Article 8 of the Indenture.

 

14.          No Personal Liability of Directors, Officers, Employees and Stockholders.  No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or any Guarantor under the Indenture, the Notes or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.  By accepting any Note, each Holder waives and releases all such liability.  Such waiver and release are part of the consideration for the issuance of the Notes.

 

15.          Authentication.  No Note will be valid until it is authenticated by the Trustee.  A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.

 

16.          Abbreviations.  Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act).

 

17.          Governing Law.  THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

* * *

 

A-5











 

To request a copy of the Indenture, which the Company will provide to any Holder at no charge, please send a written request to the following address:

 

NRG Energy, Inc.

804 Carnegie Center

Princeton, NJ 08540

Attention: Corporate Secretary

 

A-6











 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)

 

INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[     ]

 

The following exchanges, transfers or cancellations of this Global Note have been made:

 

	
Date
    	
 
    	
Amount of Increase
   (Decrease) in
   Principal Amount of
   this Global Note
    	
 
    	
Principal Amount of
   this Global Note
   After Such Increase
   (Decrease)
    	
 
    	
Signature of
   Authorized
   Signatory of Trustee
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 




(1)                                 Insert for Global Notes only.

 

A-7











 

CONVERSION NOTICE

 

NRG ENERGY, INC.

 

2.75% Convertible Senior Notes due 2048

 

Subject to the terms of the Indenture, by executing and delivering this Conversion Notice, the undersigned Holder of the Note identified below directs the Company to convert (check one):

 

o            the entire principal amount of

 

o            $                     (1) aggregate principal amount of

 

the Note identified by CUSIP No.                       and Certificate No.                      .

 

The undersigned acknowledges that if the Conversion Date of a Note to be converted is after a Regular Record Date and before the next Interest Payment Date, then such Note, when surrendered for conversion, must, in certain circumstances, be accompanied with an amount of cash equal to the interest that would have accrued on such Note to, but excluding, such Interest Payment Date.

 

	
Date:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
(Legal Name of Holder)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Signature   Guaranteed:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Participant in a Recognized Signature
    
	
 
    	
 
    	
Guarantee Medallion Program
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Authorized Signatory
    


 




(1)           Must be an Authorized Denomination.

 

A-8












 

FUNDAMENTAL CHANGE REPURCHASE NOTICE

 

NRG ENERGY, INC.

 

2.75% Convertible Senior Notes due 2048

 

Subject to the terms of the Indenture, by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Fundamental Change Repurchase Right with respect to (check one):

 

o            the entire principal amount of

 

o            $                     (1) aggregate principal amount of

 

the Note identified by CUSIP No.                       and Certificate No.                      .

 

The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.

 

	
Date:
    	
 
    	
 
    	
 
    
	
 
    	
(Legal Name of Holder)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
Signature   Guaranteed:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Participant in a Recognized Signature
    
	
 
    	
Guarantee Medallion Program
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Authorized Signatory
    


 




(1)         Must be an Authorized Denomination.

 

A-9











 

OPTIONAL REPURCHASE NOTICE

 

NRG ENERGY, INC.

 

2.75% Convertible Senior Notes due 2048

 

Subject to the terms of the Indenture, by executing and delivering this Optional Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Optional Repurchase Right with respect to (check one):

 

o            the entire principal amount of

 

o            $                     (1) aggregate principal amount of

 

the Note identified by CUSIP No.                       and Certificate No.                      .

 

The undersigned directs the Company to purchase the above-referenced principal amount on (check one):

 

	
o  September 1, 2025
    	
o  June 1, 2033
    	
o  June 1, 2040
    


 

The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Optional Repurchase Price will be paid.

 

	
Date:
    	
 
    	
 
    	
 
    
	
 
    	
(Legal Name of Holder)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
Signature   Guaranteed:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Participant in a Recognized Signature
    
	
 
    	
Guarantee Medallion Program
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Authorized Signatory
    


 




(1)         Must be an Authorized Denomination.

 

A-10











 

ASSIGNMENT FORM

 

NRG ENERGY, INC.

 

2.75% Convertible Senior Notes due 2048

 

Subject to the terms of the Indenture, the undersigned Holder of the within Note assigns to:

 

	
Name:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Address:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Social   security or
    	
 
    	
 
    
	
tax   identification
    	
 
    	
 
    
	
number:
    	
 
    	
 
    


 

the within Note and all rights thereunder irrevocably appoints:

 

as agent to transfer the within Note on the books of the Company.  The agent may substitute another to act for him/her.

 

	
Date:
    	
 
    	
 
    	
 
    
	
 
    	
(Legal Name of Holder)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
Signature   Guaranteed:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Participant in a Recognized Signature
    
	
 
    	
Guarantee Medallion Program
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Authorized Signatory
    


 

A-11











 

TRANSFEROR ACKNOWLEDGEMENT

 

If the within Note bears a Restricted Note Legend, the undersigned further certifies that (check one):

 

1.        o                  Such Transfer is being made to the Company or a Subsidiary of the Company.

 

2.        o                  Such Transfer is being made pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer.

 

3.        o                  Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities Act, and, accordingly, the undersigned further certifies that the within Note is being transferred to a Person that the undersigned reasonably believes is purchasing the within Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act in a transaction meeting the requirements of Rule 144A.  If this item is checked, then the transferee must complete and execute the acknowledgment contained on the next page.

 

4.        o                  Such Transfer is being made pursuant to, and in accordance with, any other available exemption from the registration requirements of the Securities Act (including, if available, the exemption provided by Rule 144 under the Securities Act).

 

	
Dated:
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
(Legal Name of Holder)
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
Signature   Guaranteed:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
(Participant in a Recognized Signature
    	
 
    
	
Guarantee Medallion Program)
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Authorized Signatory
    	
 
    
				


 

A-12











 

TRANSFEREE ACKNOWLEDGEMENT

 

The undersigned represents that it is purchasing the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment discretion, and that and the undersigned and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act.  The undersigned acknowledges that the transferor is relying, in transferring the within Note on the exemption from the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided by Rule 144A and that the undersigned has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A.

 

	
Dated:
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
(Name of Transferee)
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
				


 

A-13












 

EXHIBIT B-1

 

FORM OF RESTRICTED NOTE LEGEND

 

THE OFFER AND SALE OF THIS NOTE AND THE SHARES OF COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

 

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

 

(2)                                 AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT ONLY:

 

(A)                               TO THE COMPANY OR ANY SUBSIDIARY THEREOF;

 

(B)                               PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT;

 

(C)                               TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;

 

(D)                               PURSUANT TO RULE 144 UNDER THE SECURITIES ACT; OR

 

(E)                                PURSUANT TO ANY OTHER EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

BEFORE THE REGISTRATION OF ANY SALE OR TRANSFER IN ACCORDANCE WITH (2)(C), (D) OR (E) ABOVE, THE COMPANY, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATES OR OTHER DOCUMENTATION OR EVIDENCE AS THEY MAY REASONABLY REQUIRE IN ORDER TO DETERMINE THAT THE PROPOSED SALE OR TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.(1)

 




(1)         This paragraph and the immediately preceding paragraph will be deemed to be removed from the face of this Note at such time when the Company delivers written notice to the Trustee of such deemed removal pursuant to Section 2.12 of the within-mentioned Indenture.

 

B-1











 

EXHIBIT B-2

 

FORM OF GLOBAL NOTE LEGEND

 

THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.

 

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

 

TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE HEREINAFTER REFERRED TO.

 

B-1











 

EXHIBIT B-3

 

FORM OF NON-AFFILIATE LEGEND

 

NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED) OF THE COMPANY MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN.

 

B-1