Certain Amendments to the Indenture. Subject to Section 3.1, the Indenture, solely with respect to the Notes, is hereby amended as follows: (a) Section 1003 of the Base Indenture (Reports) is hereby amended by deleting the text of Section 1003 its entirety and replacing it with the following text: “The Company will file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, at the times and in the manner provided pursuant to the Trust Indenture Act. To the extent any required filings are made with the Commission or the reports are posted on the Company’s website, the reports will be deemed to be furnished to the Trustee and Holders.” (b) Section 4.1 (Limitation on Liens); Section 4.2 (Limitations on Sale and Leaseback Transactions); and Section 4.3 (Change of Control Triggering Event) of the Third Supplemental Indenture shall be deleted in their entirety. (c) Section 801 of the Base Indenture (Company May Merge or Transfer Assets Only on Certain Terms) is hereby amended by deleting the text of Section 801 in its entirety and replacing it with the following text: “The Company shall not consolidate with or merge with or into, in one transaction or a series of related transactions, any other Person, unless: (1) the Company shall be the continuing entity, or the resulting or surviving Person (the “Successor”) shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance with its terms; (2) immediately after giving effect to such transaction, no Default or Event of Default, and no circumstances which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and (3) if requested, the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation or merger and such supplemental indenture, if any, complies with this Indenture (except that such Opinion of Counsel need not opine as to clause (2) above).” (d) The failure to comply (whether before or after the date of this Fifth Supplemental Indenture) with the terms of Section 1003 Base Indenture (except as amended hereby), Sections 4.1, 4.2 or 4.3 of the Third Supplemental Indenture, or Section 8.1 of the Base Indenture (except as amended hereby) shall not constitute a Default or Event of Default under the Indenture with respect to the Notes and shall no longer have any consequence under the Indenture with respect to the Notes. (e) All definitions set forth in Section 101 of the Base Indenture and Section 1.1 of the Third Supplemental Indenture that relate to defined terms used solely in the Sections of the Indenture or the Third Supplemental Indenture deleted pursuant to the terms of this Fifth Supplemental Indenture are no longer applicable to the Notes. (f) All references to Sections of the Indenture amended by this Fifth Supplemental Indenture shall be to such Sections as amended by this Fifth Supplemental Indenture.
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Certain Amendments to the Indenture. Subject to Section 3.1, the Indenture, solely with respect to the Notes, is hereby amended as follows:
(a) Section 1003 4.3 of the Base Indenture (ReportsReports by the Issuer) is hereby amended by deleting the text of Section 1003 4.3 its entirety and replacing it with the following text: “The Company will file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, at the times and in the manner provided pursuant to the Trust Indenture Act. To the extent any required filings are made with the Commission or the reports are posted on the Company’s website, the reports will be deemed to be furnished to the Trustee and Holders.”
(b) Section 4.1 3.6 (Limitation on Liens); Section 4.2 (Limitations on Sale and Leaseback Transactions); ) and Section 4.3 3.7 (Change of Control Triggering EventLimitation on Sales and Leasebacks) of the Third Supplemental Indenture shall be deleted in their entirety.
(c) Section 801 9.1 of the Base Indenture (Company Issuer May Merge or Transfer Assets Only Consolidate, etc., on Certain Terms) is hereby amended by deleting the text of Section 801 9.1 in its entirety and replacing it with the following text: “The Company shall Issuer covenants that it will not merge or consolidate with or merge with or into, in one transaction or a series of related transactions, any other Person, unless:
corporation unless (1i) either the Company Issuer shall be the continuing entitycorporation, or the resulting or surviving Person (the “Successor”) successor corporation shall be a Person corporation or entity organized and existing under the laws of the United States of AmericaAmerica or any state thereof and shall expressly assume the due and punctual payment of the principal of and interest, any State thereof or if any, on all the District of Columbia Securities, according to their tenor, and the Successor (if not due and punctual performance and observance of all of the Company) shall expressly assumecovenants and conditions of this Indenture to be performed or observed by the Issuer, by an supplemental indenture supplemental heretosatisfactory to the Trustee, executed and delivered to the TrusteeTrustee by such corporation or entity, in form reasonably satisfactory to and (ii) the TrusteeIssuer or such successor corporation or entity, all as the obligations of the Company under the Securities and this Indenture and, for each Security that by its terms provides for conversioncase may be, shall have provided for the right to convert such Security in accordance with its terms;
(2) not, immediately after giving effect to such transactionmerger or consolidation, no Default be in default in the performance of any such covenant or Event of Default, and no circumstances which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and
(3) if requested, the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation or merger and such supplemental indenture, if any, complies with this Indenture (except that such Opinion of Counsel need not opine as to clause (2) above)condition.”
(d) The failure to comply (whether before or after the date of this Fifth First Supplemental Indenture) with the terms of Section 1003 Base Indenture 4.3 (except as amended hereby), Sections 4.1, 4.2 3.6 or 4.3 of the Third Supplemental Indenture3.7, or Section 8.1 of the Base Indenture 9.1 (except as amended hereby) of the Indenture shall not constitute a Default or Event of Default under the Indenture with respect to the Notes and shall no longer have any consequence under the Indenture with respect to the Notes.
(e) All definitions set forth in Section 101 of the Base Indenture and Section 1.1 of the Third Supplemental Indenture that relate to defined terms used solely in the Sections of the Indenture or the Third Supplemental Indenture deleted pursuant to the terms of this Fifth First Supplemental Indenture are no longer applicable to the Notes.
(f) All references to Sections of the Indenture amended by this Fifth First Supplemental Indenture shall be to such Sections as amended by this Fifth First Supplemental Indenture.
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