Close

Form 8-K BOSTON SCIENTIFIC CORP For: Mar 03

March 8, 2022 5:17 PM EST

Get inside Wall Street with StreetInsider Premium. Claim your 1-week free trial here.

Exhibit 1.1 

 

EXECUTION VERSION

American Medical Systems Europe B.V.,
as Issuer

 

Debt Securities

 

Fully and Unconditionally Guaranteed by
BOSTON SCIENTIFIC CORPORATION

 

UNDERWRITING AGREEMENT-BASIC PROVISIONS

 

March 3, 2022

 

To:          The Underwriters named in the within-mentioned Terms Agreement

 

Ladies and Gentlemen:

 

American Medical Systems Europe B.V. (the “Issuer”), incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) in the Netherlands with its statutory seat in Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under number 34185686 and an (indirect) wholly-owned subsidiary of Boston Scientific Corporation (the “Company”), proposes to issue and sell its debt securities having an aggregate principal amount of €3,000,000,000 (the “Securities”). The Securities will be issued under an indenture dated as of March 8, 2022 between the Issuer, the Company, as guarantor, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented from time to time by supplemental indentures and/or modified from time to time by or pursuant to resolutions of the Board of Managing Directors of the Issuer and an Officer’s Certificate as provided in Section 301 of such indenture (such indenture as so supplemented and/or modified being hereinafter referred to as the “Indenture”). The Securities will be fully and unconditionally guaranteed on a senior basis by the Company (the “Guarantees”).

 

Whenever the Issuer determines to make an offering of Securities, it will enter into an agreement substantially in the form of Exhibit A hereto (a “Terms Agreement”) providing for the sale of such Securities to, and the purchase and offering thereof by, the underwriter or underwriters named therein (each an “Underwriter” and, collectively, the “Underwriters” or “you,” which terms shall include the underwriter or underwriters named therein whether acting alone in the resale of the Securities or as members of an underwriting syndicate). The Terms Agreement relating to each offering of Securities shall specify the principal amount of Securities to be issued and their terms not otherwise specified in the Indenture, the name or names of the Underwriters participating in such offering (subject to substitution as provided in Section 10 hereof) and the principal amount of Securities which each severally agrees to purchase, the name or names of each Underwriter acting as a “Representative,” manager or co-manager in connection with such offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, any delayed delivery arrangements and the time and place of delivery and payment. Each offering of Securities will be governed by this underwriting agreement (the “Agreement”), as supplemented by the applicable Terms Agreement, and this Agreement and such Terms Agreement shall inure to the benefit of and be binding upon each Underwriter participating in the offering of such Securities.

 

 

 

 

The Securities will be issued in registered, book-entry form under the New Safekeeping Structure (the “NSS”) through Euroclear Bank SA/NV (“Euroclear”) and Clearstream Banking S.A. (“Clearstream”) (each, an “ICSD” and together, the “ICSDs”) in the form of one or more global notes in registered form (the “Global Note”), which shall be deposited with a common safekeeper (the “Common Safekeeper”) for Euroclear and Clearstream, or its nominee, at the Closing Time (as defined below) and registered in the name of a nominee of the Common Safekeeper. The Securities are intended to be held in a manner that will allow eligibility as collateral for Eurosystem intra-day credit and monetary policy operations. The common service provider appointed by the ICSDs in respect of the Notes is Elavon Financial Services DAC (the “Common Service Provider”). In connection with the issuance of the Securities, the Issuer and the Company will enter into an agency agreement (the “Agency Agreement”) to be dated as of March 8, 2022, among the Issuer, the Company and Elavon Financial Services DAC, as paying agent (the “Paying Agent”). In addition, the Issuer will enter into ICSD agreements related to the Securities (the “ICSD Agreements”) to be dated as of March 3, 2022, among the Issuer, Euroclear and Clearstream.

 

1.             Representations and Warranties. The Company and the Issuer jointly and severally represent and warrant to you that as of the date hereof, as of the Applicable Time and as of the Closing Time (each as hereinafter defined) under such Terms Agreement (in each case, the “Representation Date”) as set forth below. Certain terms used in this Section 1 are defined in paragraphs (C) and (D) hereof.

 

A.            If the offering of the Securities is a Delayed Offering (as specified in the relevant Terms Agreement), paragraph (i) below is applicable and, if the offering of the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below is applicable.

 

(i)            The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “Regulations”), and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (File No. 333-262937) on such Form, including a Basic Prospectus, for registration under the 1933 Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and may have used a Preliminary Prospectus, each of which has previously been furnished to you. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the 1933 Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act or the Securities Exchange Act of 1934, as amended (the “1934 Act”), is called the “Registration Statement.” Such Registration Statement, as so amended, has become effective. The offering of the Securities is a Delayed Offering and, although the Basic Prospectus may not include all the information with respect to the Securities and the offering thereof required by the 1933 Act and the rules thereunder to be included in the Final Prospectus, the Basic Prospectus included all such information required by the 1933 Act and the rules thereunder to be included therein as of the Effective Date. The Company will next file with the Commission pursuant to Rules 415 and 424(b) a Final Prospectus relating to the Securities and the offering thereof. The Final Prospectus shall only contain information in the Disclosure Package (as hereinafter defined) and the Final Term Sheet (as hereinafter defined), except to the extent the Representatives shall agree to any additional information.

 

 -2- 
 

 

(ii)           The Company meets the requirements for the use of Form S-3 under the 1933 Act and has filed with the Commission a registration statement (File No. 333-262937) on such Form, including a Basic Prospectus, for registration under the 1933 Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and including a Preliminary Prospectus, each of which has previously been furnished to you. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the 1933 Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act or the 1934 Act, is called the “Registration Statement.” The Company will next file with the Commission either (x) a Final Prospectus relating to the Securities in accordance with Rules 430B and 424(b), or (y) prior to the effectiveness of such Registration Statement, an amendment to such Registration Statement, including the form of Final Prospectus. In the case of clause (x), the Company has included in such Registration Statement, as amended at the Effective Date, all information (other than Rule 430B Information) required by the 1933 Act and the rules thereunder to be included in the Final Prospectus with respect to the Securities and the offering thereof. The Final Prospectus shall only contain information in the Disclosure Package (as hereinafter defined) and the Final Term Sheet (as hereinafter defined), except to the extent the Representatives shall agree to any additional information.

 

B.            On the Effective Date, the Registration Statement did, at the Applicable Time the Preliminary Prospectus did, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and at the Closing Time, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the respective rules thereunder; on the Effective Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; the Indenture complies in all material respects with the requirements of the Trust Indenture Act and the rules thereunder; and the Final Prospectus will not, on the date such Final Prospectus is first issued and at the Closing Time, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Issuer make no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company and the Issuer by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto); it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information in Exhibit 1 to the Terms Agreement.

 

C.            The term “Disclosure Package” shall mean (i) the Basic Prospectus, including any preliminary prospectus supplement, as amended or supplemented prior to the Applicable Time, (ii) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Annex A to the Terms Agreement, (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and (iv) the Final Term Sheet, which shall be identified in Annex B to the Terms Agreement. As of the Applicable Time, (i) the Disclosure Package did not, and at the Closing Time will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Issuer make no representations or warranties as to the information contained in or omitted from the Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company and the Issuer by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Disclosure Package; it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information in Exhibit 1 to the Terms Agreement.

 

 -3- 
 

 

D.            The terms which follow, when used in this Agreement, shall have the meanings indicated. The term “the Effective Date” shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. “Applicable Time” shall mean the date and time on the date of execution of the Terms Agreement (as set forth in the Terms Agreement), which the Issuer has informed the Underwriters as the time when sales of the Securities may be first made by the Underwriters in the offering. “Basic Prospectus” shall mean the prospectus referred to in paragraph (A)(i) above contained in the Registration Statement at the Effective Date including, in the case of a Non-Delayed Offering, any Preliminary Prospectus. “Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof including the Basic Prospectus and is used prior to filing of the Final Prospectus. “Final Prospectus” shall mean the final prospectus supplement relating to the Securities that is filed pursuant to Rule 424(b) after the Applicable Time, together with the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities, including the Basic Prospectus, included in the Registration Statement at the Effective Date. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the 1934 Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus shall be deemed to refer to and include the filing of any document under the 1934 Act after the Effective Date or the issue date of the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference; provided that no such document filed after the Applicable Time shall be deemed incorporated into the Disclosure Package. A “Non-Delayed Offering” shall mean an offering of securities which is intended to commence promptly after the effective date of the Registration Statement, with the result that, pursuant to Rules 415 and 430B, all information (other than Rule 430B Information) with respect to the securities so offered must be included in such Registration Statement at the effective date thereof. A “Delayed Offering” shall mean an offering of securities pursuant to Rule 415 which does not commence promptly after the effective date of the Registration Statement, with the result that only information required pursuant to Rule 415 need be included in such Registration Statement at the effective date thereof with respect to the securities so offered. Whether an offering of the Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in the relevant Terms Agreement.

 

E.            (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the 1933 Act, and (iv) at the Applicable Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was, is and will be a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the 1933 Act, that initially became effective within three years of the date hereof, and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration statement form. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act against the Company or the Issuer or related to the offering of the Securities has been initiated or, to the Company’s and the Issuer’s knowledge, threatened by the Commission.

 

 -4- 
 

 

F.            (i) At the earliest time after the filing of the Registration Statement relating to the Securities that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the 1933 Act and (ii) as of the Applicable Time, the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the 1933 Act), without taking account of any determination by the Commission pursuant to Rule 405 of the 1933 Act that it is not necessary that the Company be considered an Ineligible Issuer.

 

G.            Each issuer free writing prospectus as defined in Rule 433 of the 1933 Act (each, an “Issuer Free Writing Prospectus”) (which shall include any electronic road show), as of its issue date and at all subsequent times through the completion of the offering of the Securities or until any earlier date that the Issuer notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Issuer has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company and the Issuer by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such Exhibit 1 to the Terms Agreement.

 

H.            Neither the Company nor the Issuer has distributed and neither will distribute, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex A to the Terms Agreement or the Registration Statement.

 

 -5- 
 

 

I.            The consolidated financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as indicated therein; the supporting schedules included or incorporated by reference in the Registration Statement, if any, present fairly the information required to be stated therein; if pro forma financial statements are included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus, the assumptions used in preparing the pro forma financial statements included therein provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. No pro forma financial information is required to be filed with the Commission pursuant to any acquisitions or dispositions by the Company pursuant to Regulation S-X with respect to any acquisitions or dispositions by the Company since January 1, 2019.

 

J.            The documents incorporated by reference in the Final Prospectus and the Disclosure Package, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations thereunder, and, when read together and with the other information in the Final Prospectus, the Disclosure Package and the Registration Statement, at each Representation Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

K.            Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, except as may otherwise be stated therein or contemplated thereby, (i) there has been no material adverse change in the condition (financial or other), earnings, results of operations, business or properties of the Company and its subsidiaries, considered as one enterprise, whether or not arising from transactions in the ordinary course of business and (ii) there have been no material transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business.

 

L.            The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and conduct its business as now being conducted and as described in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition (financial or other), earnings, results of operations, business or properties of the Company and its subsidiaries, considered as one enterprise (a “Material Adverse Effect”).

 

M.            The Issuer is a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and has been duly incorporated and is validly existing under Dutch law with corporate power and authority to own, lease and operate its properties and conduct its business as now being conducted and as described in the Registration Statement, the Disclosure Package and the Final Prospectus.

 

 -6- 
 

 

N.            Schedule I hereto sets forth each domestic and foreign subsidiary of the Company which the Company deems to be a “significant subsidiary” (each, a “Material Subsidiary” and collectively, the “Material Subsidiaries”). Each Material Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be in good standing or to so qualify would not have a Material Adverse Effect, and, except as otherwise disclosed in the Registration Statement, the Disclosure Package or the Final Prospectus, all of the issued and outstanding capital stock of each such Material Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company (except for directors’ qualifying shares and shares held by individuals for the purpose of satisfying the legal requirements of the jurisdiction of incorporation), directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.

 

O.            None of the Issuer, the Company or any of its subsidiaries is in violation of its or any of their charters, articles of association or bylaws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it or any of them is a party or by which it or any of them or their properties may be bound where any such violation or default would have a Material Adverse Effect; and the execution of this Agreement, the execution and delivery of the Indenture and the applicable Terms Agreement (including this Agreement as incorporated by reference therein), the filing of the Registration Statement and the consummation of the transactions contemplated herein and therein (including the issuance, authentication, sale and delivery of the Securities) have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer, the Company or any of its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Issuer, the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Issuer, the Company or any of its subsidiaries is subject where any such conflict, breach, default, creation or imposition would have a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter, articles of association or bylaws of the Issuer, the Company or, to the best of the Issuer’s and the Company’s knowledge, any law, administrative regulation or administrative or court decree (except for such violations of any law, administrative regulation or administrative or court decree that would not have a Material Adverse Effect and would not have a material adverse effect on the Issuer’s or the Company’s ability to consummate the transactions contemplated by this Agreement), and no consent, approval, authorization or order of any court or governmental authority or agency is required for the consummation by the Issuer or the Company of the transactions contemplated by this Agreement, (including the issuance, authentication, sale and delivery of the Securities in accordance with the terms and conditions of the Indenture) except such as may be required under the 1933 Act or the Regulations, the Trust Indenture Act or state securities or “blue sky” laws.

 

P.            The Issuer, the Company and the Material Subsidiaries possess adequate certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except such certificates, authorities or permits which are not material to such conduct of their business, and none of the Issuer, the Company nor any of the Material Subsidiaries has, to the knowledge of the Issuer and the Company, received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit which, singly or in the aggregate, if the subject of any unfavorable decision, ruling or finding, would have a Material Adverse Effect.

 

 -7- 
 

 

Q.            Except as set forth in the Registration Statement or the Disclosure Package and the Final Prospectus, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the knowledge of the Company and the Issuer, threatened against or affecting the Issuer, the Company or any of its subsidiaries that might reasonably be expected to result in a Material Adverse Effect, or that might reasonably be expected to materially and adversely affect the offering of the Securities.

 

R.            There are no contracts or documents of the Issuer, the Company or any of its subsidiaries which are required to be filed as exhibits to the Registration Statement (including the documents incorporated by reference therein) by the 1933 Act or the Regulations which have not been so filed.

 

S.            Each of the Issuer and the Company has full right, power and authority to execute and deliver this Agreement, the Securities, the Indenture, the Agency Agreement and the ICSD Agreements (collectively, the “Transaction Documents”), as applicable, and to perform its respective obligations hereunder and thereunder.

 

T.            The Indenture has been duly and validly authorized, when executed and delivered by each of the Company and the Issuer and, assuming due execution and delivery by the Trustee, constitutes a valid and binding agreement of each of the Company and the Issuer, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and subject to the applicability of general principles of equity, and has been duly qualified under the Trust Indenture Act.

 

U.            The Securities have been duly authorized for issuance and sale pursuant to this Agreement and the applicable Terms Agreement (or will have been so authorized prior to each issuance of Securities) and, when executed and authenticated in accordance with the provisions of the Indenture and the Resolutions of the Board of Managing Directors of the Issuer or Pricing Certificate pursuant thereto, and delivered to and paid for by the purchasers thereof and effectuated by the Common Safekeeper, will constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent transfer, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to principles relating to the availability of equitable remedies to the extent that adequate remedies at law may exist) and will be entitled to the benefits of the Indenture, which will be substantially in the form heretofore delivered to you; and the Securities and the Indenture will conform when executed and delivered in all material respects to all statements relating thereto contained in the Disclosure Package and the Final Prospectus.

 

V.            The Guarantees have been duly authorized for issuance pursuant to this Agreement and the applicable Terms Agreement (or will have been so authorized prior to each issuance of Securities) and, when the Indenture has been executed and delivered, and the Securities have been executed, delivered and authenticated in accordance with the provisions of the Indenture and the Resolutions of the Board of Directors of the Company or Pricing Certificate pursuant thereto and delivered to and paid for by the purchasers thereof and effectuated by the Common Safekeeper, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent transfer, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to principles relating to the availability of equitable remedies to the extent that adequate remedies at law may exist) and will be entitled to the benefits of the Indenture.

 

 -8- 
 

 

W.            The Agency Agreement has been duly and validly authorized, when executed and delivered by each of the Company and the Issuer and, assuming due execution and delivery by each of the other parties thereto, constitutes a valid and binding agreement of each of the Company and the Issuer, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and subject to the applicability of general principles of equity.

 

X.            Each of the ICSD Agreements has been duly and validly authorized, when executed and delivered by each of the Company and the Issuer and, assuming due execution and delivery by each of the other parties thereto, constitutes a valid and binding agreement of each of the Company and the Issuer, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and subject to the applicability of general principles of equity.

 

Y.            Except as disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, and except as where such failure would not have a Material Adverse Effect, the Issuer, the Company and its subsidiaries own, possess, license or have the right to use the patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names and other rights or interests in items of intellectual property as are necessary for the operation and conduct of the businesses now operated by them (the “patent and proprietary rights”); and except as disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, the Issuer and the Company have no knowledge of any infringement of or conflict with asserted rights of others with respect to any patent and proprietary rights which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, and, except as disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, the Issuer and the Company have no knowledge that any person or entity is infringing or otherwise violating any of the Company’s patents, trademarks, servicemarks or copyrights in a manner that could materially affect the use thereof by the Issuer, the Company or any of its subsidiaries and which infringement would have a Material Adverse Effect.

 

Z.            No labor disturbance by the employees of the Issuer, the Company or any subsidiary exists or, to the knowledge of the Issuer and the Company, is imminent which might reasonably be expected to have a Material Adverse Effect.

 

AA.        Neither the Issuer nor the Company is, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.

 

 -9- 
 

 

BB.        Except as described in the Registration Statement or the Disclosure Package and the Final Prospectus and except as could not reasonably be expected to have a Material Adverse Effect, to the knowledge of the Issuer and the Company, the properties, assets and operations of each of the Issuer, the Company and its subsidiaries are in compliance with all applicable federal, state, local and foreign laws (including, without limitation, common law), rules and regulations, orders, decrees, judgments, permits and licenses relating to worker health and safety, and to the protection and clean-up of the natural environment and to the protection or preservation of natural resources, including, without limitation, those relating to the processing, manufacturing, generation, handling, disposal, transportation or release of hazardous materials (collectively, “Environmental Laws”). With respect to such properties, assets and operations, there are no events, conditions, circumstances, activities, practices, incidents, actions or plans of the Issuer, the Company or any of its subsidiaries of which the Issuer or the Company is aware that may interfere with or prevent compliance or continued compliance with applicable Environmental Laws or otherwise result in liability to the Issuer, the Company or any of its subsidiaries pursuant to applicable Environmental Law in a manner that could reasonably be expected to have a Material Adverse Effect. Except as described in the Registration Statement or the Disclosure Package and the Final Prospectus and except as could not reasonably be expected to have a Material Adverse Effect, (A) to the Issuer’s and the Company’s knowledge, none of the Issuer, the Company or any of its subsidiaries is the subject of any federal, state, local or foreign investigation pursuant to Environmental Laws, (B) none of the Issuer, the Company or any of its subsidiaries has received any written notice or claim pursuant to Environmental Laws and (C) there are no pending, or, to the knowledge of the Issuer and the Company, threatened actions, suits or proceedings against the Issuer, the Company, any of its subsidiaries or its properties, assets or operations, in connection with any Environmental Laws. The term “hazardous materials” shall mean those substances that are regulated by or pursuant to any applicable Environmental Laws.

 

CC.        This Agreement has been duly authorized, executed and delivered by the Issuer and the Company.

 

DD.        No holders of securities of the Issuer or the Company have rights to the registration of such securities under the Registration Statement.

 

EE.        The Company maintains “internal control over financial reporting” (as defined in Rule 13a-15(f) of the 1934 Act) that have been designed by, or under the supervision of, the Company’s principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.

 

FF.        The Company has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Issuer, the Company, its subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and Sanctions applicable to the Issuer, the Company, its subsidiaries and their respective directors, officers and employees, and the Issuer, the Company, its subsidiaries and, to the knowledge of the Issuer and the Company, their respective officers and employees and directors are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. As of the Applicable Time and at the Closing Time, none of (a) the Issuer, the Company, any subsidiary or, to the knowledge of the Issuer and the Company, any of their respective directors or officers or (b) to the knowledge of the Issuer and the Company, any of the Issuer’s, the Company’s or such subsidiary’s respective employees is or will be a Sanctioned Person or organized or resident in a Sanctioned Country. No use of proceeds of the offering of the Securities hereunder will be used by the Issuer, the Company or any of its subsidiaries directly or to its knowledge indirectly to violate applicable Anti-Corruption Laws or applicable Sanctions. The term “Anti-Corruption Laws” shall mean the United States Foreign Corrupt Practices Act of 1977, as amended, and all similar laws, rules, and regulations of any jurisdiction applicable to the Issuer, the Company or its subsidiaries prohibiting bribery or corruption. “Sanctioned Country” shall mean a country or territory, which is itself a subject or target of any Sanctions (as of the Applicable Time and at the Closing Time, the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea region of Ukraine, Cuba, Iran, North Korea, and Syria). “Sanctioned Person” shall mean (a) any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union or the United Kingdom, (b) any person operating, organized or resident in a Sanctioned Country or (c) any person 50 percent or more owned or controlled by any such person. “Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union or the United Kingdom.

 

 -10- 
 

 

GG.        Except as otherwise disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, there are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid by or on behalf of the Underwriters in the Netherlands or any political subdivision or taxing authority thereof in connection with the execution and delivery of the Transaction Documents or the offer or sale of the Securities.

 

HH.        Except as otherwise disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, all payments to be made by the Issuer or the Company to a recipient that is not (deemed to be) affiliated with the Issuer within the meaning of the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021) on or by virtue of the execution delivery, performance or enforcement of the Transaction Documents and all interest, principal, premium, if any, additional amounts, if any, and other payments under the Transaction Documents, under the current laws and regulations of the United States of America or the Netherlands, any political subdivision thereof or any applicable taxing jurisdiction (each, a “Taxing Jurisdiction”), will not be subject to withholding, duties, levies, deductions, charges or other taxes under the current laws and regulations of the Taxing Jurisdiction and are otherwise payable free and clear of any other withholding, duty, levy, deduction, charge or other tax in the Taxing Jurisdiction and without the necessity of obtaining any governmental authorization in the Taxing Jurisdiction.

 

II.            The Issuer is subject to civil and commercial law in respect of its obligations under the Transaction Documents, and none of the Issuer or any of its properties, assets or revenues is subject to any right or immunity under Dutch, U.S. federal or New York state law from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Dutch, U.S. federal or New York state court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court with respect to their respective obligations, liabilities or any other matter under or arising out of or in connection herewith; and, to the extent that the Issuer, the Company or any of their respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating to the transactions contemplated by the Transaction Documents, may at any time be commenced, the Issuer and the Company have, pursuant to Section 21 of this Agreement, waived, and it will waive, or will cause their respective subsidiaries to waive, such right to the extent permitted by law.

 

 -11- 
 

 

JJ.        Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the Issuer or the Company based upon any of the Transaction Documents would generally be upheld and be regarded by a court of The Netherlands of competent jurisdiction as conclusive evidence when asked to render a judgement in accordance with the judgment of which enforcement is sought, without substantive re-examination or re-litigation of the merits of the subject matter, if that judgment has been rendered by a court of competent jurisdiction, in accordance with the principles of due justice, its contents and enforcement do not conflict with Dutch public policy (openbare orde) and that judgement has not been rendered by default and/or in proceedings of a criminal, revenue or other public law nature.

 

KK.        The Issuer has the power to submit, and pursuant to Section 16 of this Agreement has legally, validly, effectively and irrevocably submitted, to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; and the Issuer has the power to designate, appoint and empower, and pursuant to Section 16 of this Agreement, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any U.S. federal or New York state court located in The City of New York.

 

LL.        It is not necessary under Dutch law that any holder of the Securities, or the Underwriters should be licensed, qualified or entitled to carry on business in the Netherlands, (i) to enable any of them to enforce their respective rights under the Transaction Document or the consummation of the transactions contemplated hereby or thereby or any other document to be delivered in connection herewith or therewith or (ii) solely by reason of the execution, delivery or performance of any such document.

 

MM.        This Agreement and the other Transaction Documents are in proper legal form under Dutch law for the enforcement thereof in the Netherlands against the Issuer and the Company, as applicable, and to ensure the legality, enforcement or admissibility into evidence of this Agreement and any other Transaction Document in the Netherlands, it is not necessary for this Agreement or any such Transaction Document, as the case may be, to be filed or recorded with any court or other authority in the Netherlands or that any tax or fee be paid in the Netherlands on or in respect of this Agreement or such Transaction Document, as the case may be, or any other document, other than court costs (including, without limitation, filing fees).

 

Any certificate signed by any officer of the Issuer or the Company and delivered to the Representatives or counsel for the Underwriters in connection with an offering of Securities shall be deemed a representation and warranty by the Company, as to the matters covered thereby, to each Underwriter.

 

2.            Purchase and Sale.  The several commitments of the Underwriters to purchase securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth.

 

 -12- 
 

 

A.            Payment of the purchase price for, and delivery of, any Securities to be purchased by the Underwriters shall be made at the place set forth in the applicable Terms Agreement, or at such other place as shall be agreed upon by the Representatives and the Issuer, on the second business day (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the applicable Terms Agreement or such other time as shall be agreed upon by the Representatives and the Issuer (each such time and date being referred to as a “Closing Time”). Except as indicated in the applicable Terms Agreement, payment shall be made to the Issuer by wire transfer in same-day funds against delivery of the Securities to be purchased by the Representatives for the respective accounts of the Underwriters. Such Securities shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days prior to the applicable Closing Time.

 

B.            If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Securities from the Issuer pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto, with such changes therein as the Issuer may approve.

 

C.            As compensation for arranging Delayed Delivery Contracts, the Issuer will pay to the Representatives at Closing Time, for the accounts of the Underwriters, a fee equal to that percentage of the principal amount of Securities for which Delayed Delivery Contracts are made at Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types which will be set forth in the applicable prospectus supplement included in the Final Prospectus. If applicable, at Closing Time the Company will enter into Delayed Delivery Contracts (for not less than the minimum principal amount of Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Issuer as provided below, but not for an aggregate principal amount of Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts.

 

D.            The Representatives are to submit to the Issuer, at least two business days prior to Closing Time, the names of any institutional investors with which it is proposed that the Issuer will enter into Delayed Delivery Contracts and the principal amount of Securities to be purchased by each of them, and the Issuer will advise the Representatives, at least one business day prior to Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Issuer and the principal amount of Securities to be covered by each such Delayed Delivery Contract.

 

E.            The principal amount of Securities agreed to be purchased by the respective Underwriters pursuant to the applicable Terms Agreement shall be reduced by the principal amount of Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Issuer; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the total amount of Securities covered by the applicable Terms Agreement, less the principal amount of Securities covered by Delayed Delivery Contracts.

 

F.            The Issuer and the Company acknowledge and agree that the purchase and sale of the Securities pursuant to this Agreement and the Terms Agreement hereunder, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Issuer and the Company, on the one hand, and the several Underwriters, on the other hand.

 

 -13- 
 

 

3.            Covenants of the Issuer and the Company.  The Issuer and the Company jointly and severally covenant with each Underwriter as follows:

 

A.            The Company will use commercially reasonable efforts to cause the Registration Statement, if not effective at the Applicable Time, and any amendment thereto, to become effective. Immediately following the execution of each Terms Agreement, the Issuer and the Company will prepare a final prospectus supplement to be included in the Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Indenture, the names of the Underwriters and the principal amount of Securities which each severally has agreed to purchase, the names of the Representatives, the price at which the Securities are to be purchased by the Underwriters from the Issuer, the initial public offering price, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as the Representatives and the Issuer and the Company reasonably deem necessary in connection with the offering of the Securities. Following the completion of the offering, the Company will promptly transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Regulations.

 

B.            If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Issuer and the Company, to further amend or supplement the Disclosure Package or the Final Prospectus in order that the Disclosure Package or the Final Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in the light of circumstances existing at the time it is delivered to a purchaser or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement, the Disclosure Package or the Final Prospectus in order to comply with the requirements of the 1933 Act or the Regulations, the Issuer and the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and the Disclosure Package comply with such requirements.

 

C.            With respect to each sale of Securities, the Company will make generally available to its security holders and to the Representatives as soon as practicable earnings statements of the Company that will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the Regulations.

 

D.            From the date of a Terms Agreement, and for so long as a prospectus is required by the 1933 Act to be delivered in connection with the sale of Securities covered by such Terms Agreement, the Company will give the Representatives notice of its intention to file any documents amending or supplementing the Registration Statement, the Disclosure Package or the Final Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish them with copies of any such proposed amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing and will provide the Representatives the opportunity to review and comment on such documents.

 

 -14- 
 

 

E.            From the date of a Terms Agreement, and for so long as a prospectus is required by the 1933 Act to be delivered in connection with the sale of Securities covered by such Terms Agreement, the Company will notify the Representatives immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Final Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference into the Final Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Disclosure Package, the Final Prospectus or any prospectus supplement related thereto, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Disclosure Package or the Final Prospectus or for additional information relating to the offering of the Securities, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (vi) the commencement or threat of any Section 8A proceeding against the Issuer or the Company in connection with the Securities. The Issuer and the Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof as soon as practicable.

 

F.            The Company will deliver to the Representatives a conformed copy of the Registration Statement, any documents incorporated by reference therein (unless such documents are available on the “EDGAR” website), and each amendment thereto for each of the Underwriters. So long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act, the Company will deliver to the Representatives as many copies of any Preliminary Prospectus and the Final Prospectus and any supplement thereto as the Representatives may reasonably request.

 

G.            The Issuer and the Company will arrange for the qualification of the Securities for offering and sale under the laws of such jurisdictions as the Representatives, after consultation with the Issuer and the Company, may collectively designate and will maintain such qualifications in effect so long as required for the distribution of the Securities, provided, however, that neither the Issuer nor the Company shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

 

H.            The Company, during the period when the Final Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.

 

I.            Between the date of any Terms Agreement and the Closing Time, neither the Issuer nor the Company will, without the prior consent of the Representatives, offer or sell, or enter into any agreement to sell, any debt securities of the Issuer or the Company with a maturity of more than one year, including additional Securities.

 

J.            The Issuer, the Company and the Representatives will prepare a final term sheet containing only a description of the Securities, in a form agreed between the Issuer, the Company and the Representatives, and the Company will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such rule (such term sheet, the “Final Term Sheet”).

 

K.            Each of the Issuer and the Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, and each Representative represents that it has not made, and agrees that, unless it obtains the prior written consent of the Issuer, it will not make, any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the 1933 Act) required to be filed with the Commission or retained by the Company under Rule 433 of the 1933 Act; provided that the prior written consent of the Issuer, the Company and the Representatives hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Annex A to the Terms Agreement. Any such free writing prospectus consented to by the Issuer, the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. Each of the Issuer and the Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the 1933 Act or (iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet contemplated in Section 3(J) hereof.

 

 -15- 
 

 

L.            The Issuer and the Company agree to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the 1933 Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act.

 

M.            The Issuer and the Company agree with each of the Underwriters to make all payments under this Agreement without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever imposed by any taxing jurisdiction in which the Issuer or the Company is organized or resident for tax purposes or from or through which payment is made by or on behalf of the Issuer or the Company (or, in each case, any political subdivision thereof), unless the Issuer or the Company, as the case may be, is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer or the Company, as the case may be, shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction will equal the amounts that would have been received if no withholding or deduction has been made, except to the extent that such taxes, duties or charges (a) were imposed due to some connection of an Underwriter with the applicable taxing jurisdiction other than the mere entering into of this Agreement or receipt of payments or performance of services hereunder or (b) would not have been imposed but for the failure of an Underwriter to comply with any reasonable certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the applicable taxing jurisdiction of the Underwriter if such compliance is timely requested by the Issuer or the Company and required or imposed by law as a precondition to an exemption from, or reduction in, such taxes, duties or other charges. The Issuer and the Company, jointly and severally, further agree to indemnify and hold harmless the Underwriters against any documentary, stamp, transfer, registration or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Securities, and on the execution, delivery, performance and enforcement of the Transaction Documents.

 

N.            The Issuer and the Company shall (i) use their reasonable best efforts to cause the Securities, subject to notice of issuance, to be admitted to the Official List of the Irish Stock Exchange plc trading as Euronext Dublin (the “Exchange”) and admitted to trading on the Global Exchange Market (“GEM”) of the Exchange; (ii) deliver to the Exchange copies of such documents, information and undertakings as may be required in connection with obtaining such listing; and (iii) use commercially reasonable efforts to maintain such listing for as long as any of the Securities are outstanding. If the Securities cease to be listed on the Exchange, the Issuer and the Company shall use their reasonable best efforts to promptly list such Securities on another recognized stock exchange that satisfies the eligibility criteria under the European Central Bank’s Corporate Sector Purchase Programme (CSPP).

 

 -16- 
 

 

4.            Conditions of Underwriters’ Obligations.  The obligations of the Underwriters to purchase Securities pursuant to any Terms Agreement are subject to the accuracy of the representations and warranties on the part of the Issuer and the Company herein contained as of the Applicable Time and Closing Time, to the accuracy of the statements of the Issuer’s and the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by the Issuer and the Company of all of its covenants and other obligations hereunder and to the following further conditions:

 

A.            If the Registration Statement has not become effective prior to the Applicable Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 p.m. New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 p.m., New York City time, on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m., New York City time, on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b).

 

B.            At the applicable Closing Time (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings thereof or initiated or threatened by the Commission, (ii) there shall not have been since the execution of such Terms Agreement any decrease in the ratings of any of the Issuer’s or the Company’s debt securities by any of Moody’s Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., or Fitch Ratings, Inc. or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change and (iii) there shall not have come to the attention of the Representatives any facts that would cause them reasonably to believe that the Disclosure Package or the Final Prospectus, at the time it was required to be delivered to a purchaser of the Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

C.            At the applicable Closing Time you shall have received:

 

1.            The favorable opinion, dated as of the Closing Time, of Shearman & Sterling LLP, counsel of the Issuer and the Company, substantially in the form set forth in Exhibit C.

 

2.            The favorable opinion, dated as of the Closing Time, of Susan Thompson, Vice President, Chief Corporate Counsel and Assistant Secretary of the Company, substantially in the form set forth in Exhibit D.

 

3.            The favorable opinion, dated as of the Closing Time, of Baker & McKenzie Amsterdam N.V., Dutch counsel of Issuer, substantially in the form set forth in Exhibit E.

 

4.            The favorable opinion or opinions, dated as of the applicable Closing Time, of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.

 

 -17- 
 

 

D.            At the applicable Closing Time there shall not have been, since the Applicable Time or since the date and time of which information is given in the Disclosure Package, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), and the Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, the President, the principal financial officer or the principal accounting officer of the Company, dated as of such Closing Time, to the effect that:

 

1.            the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Time with the same effect as if made at the Closing Time and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time;

 

2.            no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and

 

3.            since the date of the most recent financial statements or financial data included or incorporated by reference in the Disclosure Package or the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, results of operations, business or properties of the Company and its subsidiaries, considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).

 

E.            At the applicable Closing Time there shall not have been, since the Applicable Time or since the date and time of which information is given in the Disclosure Package, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Issuer and its subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), and the Issuer shall have furnished to the Representatives a certificate of the Issuer, signed by the Chairman of the Board, the Chief Executive Officer, the President, the principal financial officer or the principal accounting officer of the Issuer, dated as of such Closing Time, to the effect that:

 

1.            the representations and warranties of the Issuer in this Agreement are true and correct in all material respects on and as of the Closing Time with the same effect as if made at the Closing Time and the Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time; and

 

2.            no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Issuer’s knowledge, threatened.

 

 -18- 
 

 

F.            You shall have received from Ernst & Young LLP or other independent registered public accountants acceptable to the Representatives a letter or letters, dated the date of the applicable Terms Agreement and as of the applicable Closing Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certified financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus; provided that such letters shall use a “cut-off” date no more than five business days prior to the respective dates of such letters.

 

G.            The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.

 

H.            The Representatives shall have received an executed copy of the Agency Agreement appointing Elavon Financial Services DAC as Paying Agent.

 

I.            The Representatives shall have received executed copies of the ICSD Agreements.

 

J.            At the applicable Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Issuer and the Company in connection with the issuance and sale of the Securities as herein contemplated shall be in all material respects satisfactory in form and substance to the Representatives and counsel for the Underwriters.

 

If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, the applicable Terms Agreement may be terminated by the Representatives by notice to the Issuer and the Company at any time at or prior to the applicable Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.

 

5.            Payment of Expenses.  The Issuer and the Company, jointly and severally, will pay all reasonable and necessary expenses incident to the performance of its obligations under this Agreement and each Terms Agreement, including (a) the preparing, printing or other production and filing of the Registration Statement (as originally filed) and all amendments thereto, (b) the preparation, issuance and delivery of the Securities to the Underwriters, (c) the reasonable fees and disbursements of the Company’s counsel and accountants and of the Trustee and its counsel, (d) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(G) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey, (e) the printing or other production and delivery to the Underwriters in quantities as hereinabove stated of copies of the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any amendments or supplements thereto, (f) the production and delivery to the Underwriters of copies of the Indenture and any Blue Sky Survey reasonably requested by the Representatives, (g) the fees of rating agencies, (h) the fees and expenses, if any, incurred in connection with the listing of the Securities on any securities exchange, and (i) (x) the fees and expenses, if any, incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, Inc. and (y) the reasonable fees and expenses of counsel for the Underwriters in connection therewith.

 

 -19- 
 

 

If a Terms Agreement is terminated by the Representatives in accordance with the provisions of Section 4 or Sections 9(i) and 9(iv) hereof, or if the sale of any Securities provided for herein or in any Terms Agreement is not consummated because any condition to the obligations of the Underwriters set forth herein is not satisfied by the Issuer or the Company or because of any refusal, inability or failure on the part of the Issuer or the Company to perform any agreement herein or comply with any provision hereof, the Issuer and the Company shall, jointly and severally, reimburse the Underwriters named in such Terms Agreement for all of their reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters, that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.

 

6.            Indemnification.

 

A.            The Issuer and Company jointly and severally agree to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all losses, liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to reasonable attorneys’ fees and any and all expenses reasonably and necessarily incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the 1933 Act, the 1934 Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities, as originally filed or any amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any related Preliminary Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Final Prospectus, or in any supplement thereto or amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuer and the Company will not be liable in any such case to the extent, but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Issuer and the Company by or on behalf of any Underwriter through the Representatives expressly for use therein; it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Exhibit 1 to the Terms Agreement. This indemnity will be in addition to any liability which the Company may otherwise have, including under this Agreement.

 

 -20- 
 

 

 

B.             Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Issuer and the Company, each of the directors of the Issuer and the Company, each of the officers of the Issuer and the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Issuer or the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any losses, liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to reasonable attorneys’ fees and any and all expenses reasonably and necessarily incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation) to which they or any of them may become subject under the 1933 Act, the 1934 Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities, as originally filed or any amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any related Preliminary Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Final Prospectus, or in any supplement thereto or amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Issuer and the Company by or on behalf of such Underwriter as set forth in Exhibit 1 to the Terms Agreement. It being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement. This indemnity will be in addition to any liability which any Underwriter may otherwise have, including under this Agreement.

 

C.             Promptly after receipt by an indemnified party under subsection (A) or (B) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify each party against whom indemnification is to be sought in writing of the commencement thereof (but the failure so to notify an indemnifying party shall not relieve it from any liability which it may have under this Section 6). In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying parties shall not have employed counsel reasonably satisfactory to the indemnified parties to have charge of the defense of such action within a reasonable time after notice of commencement of the action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to one or all of the indemnifying parties (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying parties. Anything in this subsection to the contrary notwithstanding, an indemnifying party shall not be liable for any settlement of any claim or action effected without its written consent; provided, however, that such consent was not unreasonably withheld. No indemnifying party shall, without the written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

 -21- 
 

 

D.            If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(C) hereof effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

 

7.             Contribution.  In order to provide for contribution in circumstances in which the indemnification provided for in Section 6 hereof is for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, then the indemnifying parties shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Issuer and the Company any contribution received by the Issuer and the Company from persons, other than the Underwriters, who may also be liable for contributions, including persons who control the Issuer or the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, officers of the Issuer and the Company who signed the Registration Statement and directors of the Issuer and the Company) as incurred to which the Issuer and the Company and one or more of the Underwriters may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Issuer and the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities or, if such allocation is not permitted by applicable law or indemnification is not available as a result of the indemnifying party not having received notice as provided in Section 6 hereof, in such proportion as is appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Issuer and the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Company, on the one hand, and the Underwriters, on the other hand, shall be deemed to be in the same proportion as (x) the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Issuer and (y) the underwriting discounts and commissions received by the Underwriters, respectively, in each case as set forth in the table on the cover page of the Final Prospectus. The relative fault of the Issuer and the Company, on the one hand, and of the Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer and the Company, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Issuer, the Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 7, in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discount applicable to the securities purchased by such Underwriter hereunder. Notwithstanding the provisions of this Section 7 and the preceding sentence, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act shall have the same rights to contribution as such Underwriter, and each person, if any, who controls the Issuer or the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, each officer of the Issuer and the Company who shall have signed the Registration Statement and each director of the Issuer and the Company shall have the same rights to contribution as the Issuer and the Company, subject in each case to clauses (i) and (ii) of this Section 7. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 7 or otherwise. The obligation of the Underwriters to contribute pursuant to this Section 7 shall be several in proportion to their respective underwriting obligations and not joint.

 

 -22- 
 

 

8.             Representations, Warranties and Agreements to Survive Delivery.  All representations, warranties, indemnities and agreements contained in this Agreement or any Term Agreement, or contained in certificates of officers of the Issuer or the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of any termination of the applicable Terms Agreement (including this Agreement as incorporated by reference therein), or any investigation made by or on behalf of any Underwriter, controlling person or the Issuer or the Company, and shall survive delivery of, and payment for, any Securities to the Underwriters.

 

9.             Termination.  The Representatives may terminate the applicable Terms Agreement (including this Agreement, as incorporated by reference therein), immediately upon notice to the Issuer and the Company, at any time at or prior to the applicable Closing Time (i) if there has been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Disclosure Package or the Final Prospectus, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not from transactions arising in the ordinary course of business, or (ii) if there has occurred any outbreak or escalation of hostilities or other calamity or crisis or change in general domestic or international economic, political or financial conditions either within or outside of the United States the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities, or (iii) if trading in any Securities of the Issuer or the Company has been suspended by the Commission or any securities exchange or in the over-the-counter market, or if trading generally on the American Stock Exchange, the New York Stock Exchange or in the over-the-counter market has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium has been declared by either Federal or New York authorities, or (iv) there shall have been since the execution of such Terms Agreement any decrease in the ratings of any of the Issuer’s or the Company’s debt securities by any of Moody’s Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., or Fitch Ratings, Inc. or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.

 

10.           Default.  If one or more of the Underwriters shall fail at the applicable Closing Time to purchase the Securities which it or they are obligated to purchase under the applicable Terms Agreement (the “Defaulted Securities”), then the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth. If, however, during such 24 hours you shall not have completed such arrangements for the purchase of all of the Defaulted Securities, then:

 

A.            if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased pursuant to such Terms Agreement, the non-defaulting Underwriters shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations under the applicable Terms Agreement (including this Agreement as incorporated by reference therein) bear to the underwriting obligations of all such non-defaulting Underwriters, unless otherwise agreed, or

 

 -23- 
 

 

B.             if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased pursuant to such Terms Agreement, such Terms Agreement (including this Agreement as incorporated by reference therein) shall terminate, without any liability on the part of any non-defaulting Underwriter or the Issuer.

 

No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under the applicable Terms Agreement or this Agreement.

 

In the event of a default by any Underwriter or Underwriters as set forth in this Section 10 which does not result in termination of the applicable Terms Agreement, either the Representatives or the Issuer or the Company shall have the right to postpone the applicable Closing Time for a period not exceeding seven days in order that any required changes in the Registration Statement or the Final Prospectus or in any other documents or arrangements may be effected.

 

11.            Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to you as provided in the applicable Terms Agreement. Notices to the Issuer and the Company shall be directed to Boston Scientific Corporation, 300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234 (fax: 508-683-4350); Attention of Susan Thompson, Vice President, Chief Corporate Counsel and Assistant Secretary.

 

12.            Parties.  The applicable Terms Agreement and this Agreement shall inure to the benefit of and be binding upon the Underwriters, the Issuer and the Company, and their respective successors and the officers and directors and any controlling persons referred to in Section 6 hereof. Nothing expressed or mentioned in the applicable Terms Agreement or this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto or thereto and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of the applicable Terms Agreement or this Agreement or any provision therein or herein contained. The applicable Terms Agreement and this Agreement and all conditions and provisions thereof and hereof are intended to be for the sole and exclusive benefit of the parties and their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

 

13.            Authority of the Representatives.  Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.

 

14.            Trial by Jury.  The Issuer and the Company (each on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

15.            Governing Law.  THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE GOVERNED BY, and construed in accordance with, THE LAWS OF THE STATE OF NEW YORK.

 

 -24- 
 

 

16.            Submission to Jurisdiction. The Issuer and the Company hereby submit to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Issuer and the Company waive any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Issuer and the Company agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer and the Company, as applicable, and may be enforced in any court to the jurisdiction of which the Issuer and the Company, as applicable, is subject by a suit upon such judgment. The Issuer irrevocably appoints the Company (Attention: Corporate Secretary), located at the Company’s principal executive offices at 300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234, as its authorized agent upon which process may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Issuer by the person serving the same to the address provided in this Section 16, shall be deemed in every respect effective service of process upon the Issuer in any such suit or proceeding. The Issuer hereby represents and warrants that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process. The Issuer further agrees to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent in full force and effect for a period of seven years from the date of this Agreement.

 

17.            Dutch Law Power of Attorney. If the Issuer is represented by (an) attorney(s) in connection with the execution of this Agreement or any agreement or document pursuant hereto, and the relevant power of attorney is expressed to be governed by Dutch law, such choice of law is hereby accepted by each of the parties hereto, in accordance with Article 14 of the Hague Convention on the Law Applicable to Agency of 14 March 1978.

 

18.            Recognition of the U.S. Special Resolution Regimes.

 

A.             In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

B.             In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

C.             For the purposes of this Section 18:

 

“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

“Covered Entity” means any of the following:

 

1.a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

2.a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

3.a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

 -25- 
 

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

19.            EU Bail-in Clause.

 

A.             Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Issuer, the Company and any BRRD Party, the Issuer and the Company acknowledge and accept that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:

 

(i)            the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any BRRD Party to the Issuer or the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:

 

(A)         the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;

 

(B)          the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD Party or another person, and the issue to or conferral on the Issuer or the Company of such shares, securities or obligations;

 

(C)          the cancellation of the BRRD Liability;

 

(D)          the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and

 

(ii)            the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.

 

B.             For the purposes of this Section 19, the following definitions shall apply:

 

“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time;

 

 -26- 
 

 

“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation;

 

“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended;

 

“BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised;

 

“BRRD Party” means any Underwriter which qualifies as an institution or entity referred to in paragraphs (a), (b), (c) or (d) of Article 1 of the BRRD, as implemented in the applicable Bail-in Legislation;

 

“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499 (or any such successor webpage); and

 

“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant BRRD Party.

 

20.            UK Bail-in Clause.

 

A.             Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Issuer, the Company and any UK Bail-in Party, the Issuer and the Company acknowledge and accept that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:

 

(i)             the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of any UK Bail-in Party to the Company or the Issuer under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:

 

(A)         the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;

 

(B)          the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the UK Bail-in Party or another person, and the issue to or conferral on the Company or the Issuer of such shares, securities or obligations;

 

(C)          the cancellation of the UK Bail-in Liability;

 

(D)          the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;

 

(ii)            the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority.

 

 -27- 
 

 

B.              For the purposes of this Section 20, the following definitions shall apply:

 

“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).

 

“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.

 

“UK Bail-in Party” means any Underwriter subject to Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings);

 

“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.

 

21.            Judgment Currency. The Issuer and the Company, jointly and severally, agree to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Issuer and the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.

 

22.            Waiver of Immunity. To the extent that the Issuer or the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court of (i) the Netherlands, or any political subdivision thereof, (ii) the United States or the State of New York, (iii) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or this Agreement, the Issuer and the Company hereby irrevocably waive such immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.

 

23.            Amendments or Waivers.  No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

 -28- 
 

 

24.            Counterparts.  This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

25.            Headings.  The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

 

[Remainder of this page intentionally left blank]

 

 -29- 
 

 

  Very truly yours,
   
  American Medical Systems Europe B.V.
   
   
  By: /s/ Jonathan R. Monson
    Name: Jonathan R. Monson
    Title: Authorised Signatory
   
  BOSTON SCIENTIFIC CORPORATION
   
   
  By: /s/ Robert J. Castagna
    Name: Robert J. Castagna
    Title: Vice President and Treasurer

 

[Signature Page – Underwriting Agreement – Basic Provisions]

 

 

 

SCHEDULE I

 

MATERIAL SUBSIDIARIES

 

1.            Boston Scientific Scimed, Inc.

2.            Target Therapeutics, Inc.

3.            Boston Scientific Group plc

4.            Guidant Delaware Holding Corporation

5.            Cardiac Pacemakers, Inc.

6.            Boston Scientific Medical Device Limited

7.            Bravo Bidco Limited

8.            BTG Limited

9.            BTG International (Holdings) Limited

 

Schedule I-1 

 

 

EXHIBIT A

 

American Medical Systems Europe B.V.,
as Issuer

 

Debt Securities

 

Fully and Unconditionally Guaranteed by
BOSTON SCIENTIFIC CORPORATION

 

TERMS AGREEMENT

 

Dated: March 3, 2022

 

To:American Medical Systems Europe B.V.
c/o Boston Scientific Corporation
300 Boston Scientific Way
Marlborough, Massachusetts 01752-1234

 

Boston Scientific Corporation
300 Boston Scientific Way
Marlborough, Massachusetts 01752-1234

 

Ladies and Gentlemen:

 

We understand that American Medical Systems Europe B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Issuer”), proposes to issue and sell its Debt Securities having an aggregate principal amount of €3,000,000,000 (as described in more detail below, the “Securities”). Subject to the terms and conditions set forth herein or incorporated by reference herein, the underwriters named below (the “Underwriters”) hereby offer to purchase such Securities.

 

The Securities to be purchased by the Underwriters, which are to be issued under an Indenture, dated as of March 8, 2022, among the Issuer, Boston Scientific Corporation (the “Company”), as guarantor, and U.S. Bank Trust Company, National Association, as Trustee, as supplemented from time to time by supplemental indentures and/or modified from time to time by or pursuant to resolutions of the Board of Managing Directors of the Issuer and an Officer’s Certificate as provided in Section 301 of such Indenture, shall have the following terms:

 

Principal amount:

1,000,000,000
of 0.750% Senior
Notes due 2025

 

750,000,000 of 1.375% Senior Notes due 2028

 

750,000,000 of 1.625% Senior Notes due 2031

 

500,000,000 of 1.875% Senior Notes due 2034

 

Date of maturity:

March 8, 2025

 

March 8, 2028 March 8, 2031 March 8, 2034
Currency of denomination:

Euros (€)

 

Euros (€)

 

Euros (€)

 

Euros (€)

 

Currency of payment:

Euros (€)

 

Euros (€)

 

Euros (€)

 

Euros (€)

 

 

 A-1 
 

 

Interest rate:

0.750%

 

1.375%

 

1.625%

 

1.875%

 

Interest payment dates: Annually on March 8, each year, beginning March 8, 2023 Annually on March 8 each year, beginning March 8, 2023 Annually on March 8 each year, beginning March 8, 2023 Annually on March 8 each year, beginning March 8, 2023
Public offering price:

99.982% of principal amount

 

99.800% of principal amount

 

99.305% of principal amount

 

98.752% of principal amount

 

Purchase price:

99.732% of principal amount

 

99.4625% of principal amount

 

98.880% of principal amount

 

98.277% of principal amount

 

Reference to mid-swaps rate:

0.206%

 

0.480%

 

0.659% 0.793%
Spread to mid-swaps rate:

Plus 55 basis points

 

Plus 93 basis points

 

Plus 105 basis points

 

Plus 120 basis points

 

Benchmark bund:

DBR 0.500% due February 15, 2025

 

DBR 0.500% due February 15, 2028

 

DBR 0.000% due February 15, 2031 DBR 0.000% due August 15, 2031
Spread to benchmark bund:

Plus 128.9 basis points

 

Plus 165.6 basis points

 

Plus 178.0 basis points

 

Plus 202.3 basis points

 

Benchmark bund yield/price:

-0.533% / €103.075

 

-0.246% / €104.475

 

-0.071% / €100.640

 

-0.030% / €100.285

 

Redemption provisions: As described in the Prospectus Supplement, dated March 3, 2022 As described in the Prospectus Supplement, dated March 3, 2022 As described in the Prospectus Supplement, dated March 3, 2022 As described in the Prospectus Supplement, dated March 3, 2022
Form and denomination: Registered form represented by one or more global securities deposited with Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV (“Euroclear”), or their respective designated custodian, as the case may be, in denominations of €100,000 and integral multiples of €1,000 in excess thereof. Registered form represented by one or more global securities deposited with Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV (“Euroclear”), or their respective designated custodian, as the case may be, in denominations of €100,000 and integral multiples of €1,000 in excess thereof. Registered form represented by one or more global securities deposited with Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV (“Euroclear”), or their respective designated custodian, as the case may be, in denominations of €100,000 and integral multiples of €1,000 in excess thereof. Registered form represented by one or more global securities deposited with Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV (“Euroclear”), or their respective designated custodian, as the case may be, in denominations of €100,000 and integral multiples of €1,000 in excess thereof.

 

 A-2 
 

 

Trustee:

U.S. Bank Trust Company, National Association

 

U.S. Bank Trust Company, National Association

 

U.S. Bank Trust Company, National Association

 

U.S. Bank Trust Company, National Association

 

Registrar and Paying Agent:

Elavon Financial Services DAC

 

Elavon Financial Services DAC

 

Elavon Financial Services DAC Elavon Financial Services DAC
Expected Listing:

Application will be made to list the notes on the Official List of the Exchange and to admit the notes to trading on the Global Exchange Market thereof

 

Application will be made to list the notes on the Official List of the Exchange and to admit the notes to trading on the Global Exchange Market thereof

 

Application will be made to list the notes on the Official List of the Exchange and to admit the notes to trading on the Global Exchange Market thereof Application will be made to list the notes on the Official List of the Exchange and to admit the notes to trading on the Global Exchange Market thereof
Underwriting discount:

0.250%

 

0.3375%

 

0.425% 0.475%
Aggregate purchase price to be paid by Underwriters:

€997,320,000

 

€745,968,750

 

€741,600,000

 

€491,385,000

 

Closing date and location:*

March 8, 2022 (T+3)

Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017

March 8, 2022 (T+3)

Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017

March 8, 2022 (T+3)

Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017

March 8, 2022 (T+3)

Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017

Representatives: Barclays Bank PLC, BofA Securities Europe SA and Citigroup Global Markets Europe AG Barclays Bank PLC, BofA Securities Europe SA and Citigroup Global Markets Europe AG Barclays Bank PLC, BofA Securities Europe SA and Citigroup Global Markets Europe AG Barclays Bank PLC, BofA Securities Europe SA and Citigroup Global Markets Europe AG
Applicable Time: 5:13 p.m., London time, on the date hereof 5:13 p.m., London time, on the date hereof 5:13 p.m., London time, on the date hereof 5:13 p.m., London time, on the date hereof
Delayed Delivery Contracts: None None None None

 

 

*It is expected that delivery of the notes will be made to purchasers on or about March 8, 2022, which is the third business day following the date of pricing of the notes (such settlement cycle referred to as T+3), through Clearstream Banking S.A. and Euroclear Bank SA/NV. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise.

 

 A-3 
 

 

The Securities to be purchased by each Underwriter hereunder will be represented by global notes in registered, book-entry form under the NSS, registered in the name of a nominee of the Common Safekeeper located outside the United States for Clearstream and Euroclear. Payment for the Securities shall be made by wire transfer in immediately available funds to the Common Service Provider for the account or accounts specified by the Issuer to the Representatives against delivery to the Common Safekeeper of Euroclear and Clearstream, or its nominee, for the account of the Underwriter, of the global notes. Copies of the global Notes shall be made available for inspection by the Representatives on the business day preceding the Closing Time at a location in New York City as the Representatives may designate.

 

Each Underwriter represents and warrants that:

 

(a)it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (as amended, the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer or the Company;

 

(b)it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom;

 

(c)it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the United Kingdom. For these purposes, a “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or (ii) a customer within the meaning of the provisions of the FSMA and any rules and regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; and

 

(d)it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the European Economic Area. For these purposes, a “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II.

 

 A-4 
 

 

Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules:

 

(a)            each of BofA Securities Europe SA and Citigroup Global Markets Europe AG is a MiFID manufacturer (each a “Manufacturer” and together, the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities; and

 

(b)            the Issuer, the Company and each of the Underwriters who is a MiFID distributor notes the application of the Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Securities by the Manufacturers and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities.

 

Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:

 

(a)            Barclays Bank PLC is a UK MiFIR manufacturer (a “UK Manufacturer”) and acknowledges that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities; and

 

(b)            the Issuer, the Company and each of the Underwriters who is a UK MiFIR distributor notes the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the UK Manufacturers and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities.

 

Except as provided below, all of the provisions contained in the document entitled Underwriting Agreement-Basic Provisions” (the “Underwriting Agreement”), dated as of March 3, 2022, are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined. For the avoidance of doubt, the offering referred to in the Terms Agreement is Non-Delayed Offering, as such term is defined therein.

 

Each of Barclays Bank PLC, BofA Securities Europe SA, Citigroup Global Markets Europe AG, Société Générale, Wells Fargo Securities Europe S.A., BNP Paribas, DNB Markets, a division of DNB Bank ASA, Goldman Sachs & Co. LLC, MUFG Securities (Europe) N.V., RBC Europe Limited, Scotiabank (Ireland) Designated Activity Company, TD Global Finance unlimited company, U.S. Bancorp Investments, Inc., Allied Irish Banks p.l.c., Deutsche Bank Aktiengesellschaft, Intesa Sanpaolo S.p.A and Standard Chartered Bank agrees that Section 1(BB) of the Underwriting Agreement is not being sought except to the extent that doing so would be permissible pursuant to European Union Council Regulation (EC) 2271/96, as amended.

 

 A-5 
 

 

The execution of this Agreement by all parties will constitute the Underwriters’ acceptance of the International Capital Markets Association Agreement among Managers Version 1/New York Law Schedule (the “ICMA Agreement”) subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this Agreement. For the purposes of the ICMA Agreement, references to the “Managers” shall be deemed to refer to the Underwriters, references to the “Lead Manager” shall be deemed to refer to each of the Representatives, references to “Settlement Lead Manager” shall be deemed to refer to BofA Securities Europe SA and references to the “Stabilisation Coordinator” shall be deemed to refer to BofA Securities Europe SA. Clause 3 of the ICMA Agreement shall be deemed to be deleted in its entirety and replaced with Section 10 of the Underwriting Agreement.

 

Each Underwriter named below severally agrees, subject to the terms and provisions of this Terms Agreement, including the terms and provisions incorporated by reference herein, to purchase the principal amount of Securities set forth opposite its name:

 

Name  Principal
Amount of
0.750% Senior
Notes due 2025
   Principal
Amount of
1.375% Senior
Notes due 2028
   Principal
Amount of
1.625% Senior
Notes due 2031
   Principal
Amount of
1.875% Senior
Notes due 2034
 
Barclays Bank PLC       151,000,000   113,250,000  113,250,000  75,500,000 
BofA Securities Europe SA   151,000,000    113,250,000    113,250,000    75,500,000 
Citigroup Global Markets Europe AG   151,000,000    113,250,000    113,250,000    75,500,000 
Société Générale   75,500,000    56,625,000    56,625,000    37,750,000 
Wells Fargo Securities Europe S.A.   75,500,000    56,625,000    56,625,000    37,750,000 
BNP Paribas   42,000,000    31,500,000    31,500,000    21,000,000 
DNB Markets, a division of DNB Bank ASA   42,000,000    31,500,000    31,500,000    21,000,000 
Goldman Sachs & Co. LLC   42,000,000    31,500,000    31,500,000    21,000,000 
MUFG Securities (Europe) N.V.   42,000,000    31,500,000    31,500,000    21,000,000 
RBC Europe Limited   42,000,000    31,500,000    31,500,000    21,000,000 
Scotiabank (Ireland) Designated Activity Company   42,000,000    31,500,000    31,500,000    21,000,000 
TD Global Finance unlimited company   42,000,000    31,500,000    31,500,000    21,000,000 
U.S. Bancorp Investments, Inc.   42,000,000    31,500,000    31,500,000    21,000,000 
Allied Irish Banks p.l.c.   15,000,000    11,250,000    11,250,000    7,500,000 
Deutsche Bank Aktiengesellschaft   15,000,000    11,250,000    11,250,000    7,500,000 
Intesa Sanpaolo S.p.A.   15,000,000    11,250,000    11,250,000    7,500,000 
Standard Chartered Bank   15,000,000    11,250,000    11,250,000    7,500,000 
Total  1,000,000,000   750,000,000   750,000,000   500,000,000 

 

Any notice by the Issuer and the Company to the Underwriters pursuant to this Terms Agreement shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication addressed to:

 

Barclays Bank PLC, 5 The North Colonnade, Canary Wharf, London E14 4BB, United Kingdom, Tel: +44 (0) 20 7773 9098, Email: [email protected], Attn: Debt Syndicate;

 

BofA Securities Europe SA, 51 rue la Boétie, 75008 Paris, France, Tel: +33 (0)1 8770 0000, Email: [email protected], Attn: Syndicate Desk; and

 

Citigroup Global Markets Europe AG, Reuterweg 16, 60323 Frankfurt am Main, Germany; Attention: Syndicate Desk.

 

[signature pages follow]

 

 A-6 
 

 

Please accept this offer by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us.

 

BARCLAYS BANK PLC
   
  By: /s/ Emily Wilson
    Name: Emily Wilson
    Title: Authorised Signatory
   
  BofA Securities Europe SA
   
  By: /s/ Francois Planque
    Name: Francois Planque
    Title:   Authorised Signatory
   
  citigroup global markets EUROPE AG
   
  By: /s/ James Barnard
    Name: James Barnard
    Title:   Delegated Signatory
   
  By: /s/ Felix Weiss
    Name: Felix Weiss
    Title:   Authorized Signer

 

[Signature Page - Terms Agreement]

 

 

 

 

 SOCIÉTÉ gÉNÉRALE

 

By:/s/ Michael Shapiro
Name:Michael Shapiro
Title:Head of Debt Capital Markets, Americas

 

  WELLS FARGO SECURITIES EUROPE S.A.

 

By:/s/ Olivier Gardella
Name:Olivier Gardella
Title:Managing Director

 

  bnp PARIBAS

 

By:/s/ Hugh Pryse-Davies
Name:Hugh Pryse-Davies
Title:Authorised Signatory

 

By:/s/ Anne Besson-Imbert
Name:Anne Besson-Imbert
Title:Authorised Signatory

 

  DNB MARKETS, A DIVISION OF DNB BANK ASA

 

By:/s/ Daniela Loukarova Öhbom
Name:Daniela Loukarova Öhbom
Title:Legal Counsel

 

  GOLDMAN SACHS & CO. LLC

 

By:/s/ Ashley Everett
Name:Ashley Everett
Title:Managing Director

 

[Signature Page – Terms Agreement]

 

 

 

  RBC EUROPE LIMITED

 

By:/s/ Ivan Browne
Name:Ivan Browne
Title:Duly Authorised Signatory

 

  SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY

 

By:/s/ Nicola Vavasour
Name:Nicola Vavasour
Title:CEO, Scotiabank (Ireland) DAC

 

By:/s/ Pauline Donohoe
Name:Pauline Donohoe
Title:Managing Director, DCM SIDAC

 

  TD GLOBAL FINANCE UNLIMITED COMPANY

 

By:/s/ Frances Watson
Name:Frances Watson
Title:Director, Transaction Management Group

 

  U.S. BANCORP INVESTMENTS, INC.

  

By:/s/ William J. Carney
Name:William J. Carney
Title:Managing Director

 

  ALLIED IRISH BANKS PLC

 

By:/s/ Conor Brogan
Name:Conor Brogan
Title:Senior Relationship Manager

 

[Signature Page – Terms Agreement]

 

 

 

  Deutsche Bank Aktiengesellschaft

 

By:/s/ John C. McCabe
Name:Jon C. McCabe
Title:Managing Director

 

By:/s/ Anguel Zaprianov
Name:Anguel Zaprianov
Title:Managing Director

 

  Intesa Sanpaolo S.p.A.

 

By:/s/ Pantaleo Cucinotta
Name:Pantaleo Cucinotta
Title:Managing Director

 

  Standard Chartered BANK

 

By:/s/ Patrick Dupont Liot
Name:Patrick Dupont Liot
Title:Managing Director

 

  MUFG SECURITIES (EUROPE) N.V.

 

By:/s/ Corina Painter
Name:Corina Painter
Title:Authorised Signatory

 

[Signature Page – Terms Agreement]

 

 

 

Accepted:

 

American Medical Systems Europe B.V.

 

By:/s/ Jonathan R. Monson  
Name:Jonathan R. Monson
Title:Authorized Signatory

 

BOSTON SCIENTIFIC CORPORATION

 

By:/s/ Robert J. Castagna  
Name:Robert J. Castagna
Title:Vice President and Treasurer

 

[Signature Page – Terms Agreement]

 

 

 

 

ANNEX A

 

ISSUER FREE WRITING PROSPECTUSES

 

The Final Term Sheet, in substantially the form of Annex B hereto.

 

 

 

ANNEX B

 

FORM OF FINAL TERM SHEET

 

 

 

Filed Pursuant to Rule 433 under the Securities Act of 1933

Registration Statement No. 333-262937

Issuer Free Writing Prospectus, dated March 3, 2022

 

American Medical Systems Europe B.V.

 

€3,000,000,000

Senior Notes Offering

 

Terms and Conditions – 3-Year Fixed Rate Notes

 

Issuer American Medical Systems Europe B.V.
Guarantor Boston Scientific Corporation
Note Type Senior Notes
Form of Offering SEC Registered
Ratings1  
Principal Amount €1,000,000,000
Trade Date March 3, 2022
Settlement Date (T+3*) March 8, 2022
Maturity Date March 8, 2025
Coupon 0.750% per annum
Yield to Maturity 0.756% per annum
Price to Public 99.982%
Reference to Mid-Swaps Rate 0.206%
Spread to Mid-Swaps Rate Plus 55 basis points
Benchmark Bund DBR 0.500% due February 15, 2025
Spread to Benchmark Bund Plus 128.9 basis points
Benchmark Bund Yield/Price -0.533% / €103.075
Interest Payment Dates Annually on March 8, beginning March 8, 2023

 

 

* It is expected that delivery of the notes will be made to purchasers on or about March 8, 2022, which is the third business day following the date of pricing of the notes (such settlement cycle referred to as T+3), through Clearstream Banking S.A. and Euroclear Bank SA/NV. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of pricing will be required, by virtue of the fact that the notes will settle in T+3, to specify an alternative settlement cycle at the time of any such trade to prevent a failed settlement; such purchasers should consult their own advisors in this regard. 

 

 

 

Par Call Date On or after February 8, 2025 (the date that is one month prior to the maturity date)
Make-whole Call Plus 20 basis points
Stabilization Stabilization/FCA
Day Count Basis ACTUAL/ACTUAL (ICMA)
Minimum Denominations €100,000 and integral multiples of €1,000 in excess thereof
Common Code / ISIN

Common Code: 245476647

ISIN: XS2454766473

Clearing and Settlement Clearstream Banking S.A. / Euroclear Bank SA/NV
Form of Notes** Global Registered Form (NSS)
Trustee U.S. Bank Trust Company, National Association
Registrar and Paying Agent Elavon Financial Services DAC
Expected Listing Application will be made to list the notes on the Official List of the Irish Stock Exchange plc for trading as Euronext Dublin and to admit the notes to trading on the Global Exchange Market thereof
Joint Bookrunners

Barclays Bank PLC

BofA Securities Europe SA

Citigroup Global Markets Europe AG

Société Générale

Wells Fargo Securities Europe S.A.

Scotiabank (Ireland) Designated Activity Company

DNB Markets, a division of DNB Bank ASA

RBC Europe Limited

TD Global Finance unlimited company

BNP Paribas

Goldman Sachs & Co. LLC

MUFG Securities (Europe) N.V.

U.S. Bancorp Investments, Inc.

Co-Managers

Deutsche Bank Aktiengesellschaft

Standard Chartered

Intesa Sanpaolo S.p.A.

Allied Irish Banks

 

Terms and Conditions – 6-Year Fixed Rate Notes

 

Issuer American Medical Systems Europe B.V.
Guarantor Boston Scientific Corporation
Note Type Senior Notes

 

 

 

Form of Offering SEC Registered
Ratings1  
Principal Amount €750,000,000
Trade Date March 3, 2022
Settlement Date (T+3*) March 8, 2022
Maturity Date March 8, 2028
Coupon 1.375% per annum
Yield to Maturity 1.410% per annum
Price to Public 99.800%
Reference to Mid-Swaps Rate 0.480%
Spread to Mid-Swaps Rate Plus 93 basis points
Benchmark Bund DBR 0.500% due February 15, 2028
Spread to Benchmark Bund Plus 165.6 basis points
Benchmark Bund Yield/Price -0.246% / €104.475
Interest Payment Dates Annually on March 8, beginning March 8, 2023
Par Call Date On or after February 8, 2028 (the date that is one month prior to the maturity date)
Make-whole Call Plus 25 basis points
Stabilization Stabilization/FCA
Day Count Basis ACTUAL/ACTUAL (ICMA)
Minimum Denominations €100,000 and integral multiples of €1,000 in excess thereof
Common Code / ISIN

Common Code: 245243391

ISIN: XS2452433910

Clearing and Settlement Clearstream Banking S.A. / Euroclear Bank SA/NV
Form of Notes** Global Registered Form (NSS)

 

 

 

* It is expected that delivery of the notes will be made to purchasers on or about March 8, 2022, which is the third business day following the date of pricing of the notes (such settlement cycle referred to as T+3), through Clearstream Banking S.A. and Euroclear Bank SA/NV. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of pricing will be required, by virtue of the fact that the notes will settle in T+3, to specify an alternative settlement cycle at the time of any such trade to prevent a failed settlement; such purchasers should consult their own advisors in this regard.

 

 

 

Trustee U.S. Bank Trust Company, National Association
Registrar and Paying Agent Elavon Financial Services DAC
Expected Listing Application will be made to list the notes on the Official List of the Irish Stock Exchange plc for trading as Euronext Dublin and to admit the notes to trading on the Global Exchange Market thereof
Joint Bookrunners

Barclays Bank PLC

BofA Securities Europe SA

Citigroup Global Markets Europe AG

Société Générale

Wells Fargo Securities Europe S.A.

Scotiabank (Ireland) Designated Activity Company

DNB Markets, a division of DNB Bank ASA

RBC Europe Limited

TD Global Finance unlimited company

BNP Paribas

Goldman Sachs & Co. LLC

MUFG Securities (Europe) N.V.

U.S. Bancorp Investments, Inc.

Co-Managers

Deutsche Bank Aktiengesellschaft

Standard Chartered

Intesa Sanpaolo S.p.A.

Allied Irish Banks

 

Terms and Conditions – 9-Year Fixed Rate Notes

 

Issuer American Medical Systems Europe B.V.
Guarantor Boston Scientific Corporation
Note Type Senior Notes
Form of Offering SEC Registered
Ratings1  
Principal Amount €750,000,000
Trade Date March 3, 2022
Settlement Date (T+3*) March 8, 2022

 

 

 

* It is expected that delivery of the notes will be made to purchasers on or about March 8, 2022, which is the third business day following the date of pricing of the notes (such settlement cycle referred to as T+3), through Clearstream Banking S.A. and Euroclear Bank SA/NV. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of pricing will be required, by virtue of the fact that the notes will settle in T+3, to specify an alternative settlement cycle at the time of any such trade to prevent a failed settlement; such purchasers should consult their own advisors in this regard.

** The notes are being issued under the New Safekeeping Structure (the “NSS”) and are intended to be held in a manner that would allow eligibility as collateral for Eurosystem intraday credit and monetary policy operations. 

 

 

 

Maturity Date March 8, 2031
Coupon 1.625% per annum
Yield to Maturity 1.709% per annum
Price to Public 99.305%
Reference to Mid-Swaps Rate 0.659%
Spread to Mid-Swaps Rate Plus 105 basis points
Benchmark Bund DBR 0.000% due February 15, 2031
Spread to Benchmark Bund Plus 178.0 basis points
Benchmark Bund Yield/Price -0.071% / €100.640
Interest Payment Dates Annually on March 8, beginning March 8, 2023
Par Call Date On or after December 8, 2030 (the date that is three months prior to the maturity date)
Make-whole Call Plus 30 basis points
Stabilization Stabilization/FCA
Day Count Basis ACTUAL/ACTUAL (ICMA)
Minimum Denominations €100,000 and integral multiples of €1,000 in excess thereof
Common Code / ISIN

Common Code: 245243464

ISIN: XS2452434645

Clearing and Settlement Clearstream Banking S.A. / Euroclear Bank SA/NV
Form of Notes** Global Registered Form (NSS)
Trustee U.S. Bank Trust Company, National Association
Registrar and Paying Agent Elavon Financial Services DAC
Expected Listing Application will be made to list the notes on the Official List of the Irish Stock Exchange plc for trading as Euronext Dublin and to admit the notes to trading on the Global Exchange Market thereof
Joint Bookrunners

Barclays Bank PLC

BofA Securities Europe SA

Citigroup Global Markets Europe AG

Société Générale

Wells Fargo Securities Europe S.A.

Scotiabank (Ireland) Designated Activity Company

DNB Markets, a division of DNB Bank ASA

RBC Europe Limited

TD Global Finance unlimited company

BNP Paribas

Goldman Sachs & Co. LLC

MUFG Securities (Europe) N.V.

U.S. Bancorp Investments, Inc.

 

 

 

 

Co-Managers

Deutsche Bank Aktiengesellschaft

Standard Chartered

Intesa Sanpaolo S.p.A.

Allied Irish Banks

 

Terms and Conditions – 12-Year Fixed Rate Notes

 

Issuer American Medical Systems Europe B.V.
Guarantor Boston Scientific Corporation
Note Type Senior Notes
Form of Offering SEC Registered
Ratings1  
Principal Amount €500,000,000
Trade Date March 3, 2022
Settlement Date (T+3*) March 8, 2022
Maturity Date March 8, 2034
Coupon 1.875% per annum
Yield to Maturity 1.993% per annum
Price to Public 98.752%
Reference to Mid-Swaps Rate 0.793%
Spread to Mid-Swaps Rate Plus 120 basis points
Benchmark Bund DBR 0.000% due August 15, 2031
Spread to Benchmark Bund Plus 202.3 basis points

 

 

* It is expected that delivery of the notes will be made to purchasers on or about March 8, 2022, which is the third business day following the date of pricing of the notes (such settlement cycle referred to as T+3), through Clearstream Banking S.A. and Euroclear Bank SA/NV. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of pricing will be required, by virtue of the fact that the notes will settle in T+3, to specify an alternative settlement cycle at the time of any such trade to prevent a failed settlement; such purchasers should consult their own advisors in this regard. ** The notes are being issued under the New Safekeeping Structure (the “NSS”) and are intended to be held in a manner that would allow eligibility as collateral for Eurosystem intraday credit and monetary policy operations.

 

 

 

Benchmark Bund Yield/Price

-0.030% / €100.285
Interest Payment Dates Annually on March 8, beginning March 8, 2023
Par Call Date On or after December 8, 2033 (the date that is three months prior to the maturity date)
Make-whole Call Plus 30 basis points
Stabilization Stabilization/FCA
Day Count Basis ACTUAL/ACTUAL (ICMA)
Minimum Denominations €100,000 and integral multiples of €1,000 in excess thereof
Common Code / ISIN

Common Code: 245243529

ISIN: XS2452435295

Clearing and Settlement Clearstream Banking S.A. / Euroclear Bank SA/NV
Form of Notes** Global Registered Form (NSS)
Trustee U.S. Bank Trust Company, National Association
Registrar and Paying Agent Elavon Financial Services DAC
Expected Listing Application will be made to list the notes on the Official List of the Irish Stock Exchange plc for trading as Euronext Dublin and to admit the notes to trading on the Global Exchange Market thereof
Joint Bookrunners

Barclays Bank PLC

BofA Securities Europe SA

Citigroup Global Markets Europe AG

Société Générale

Wells Fargo Securities Europe S.A.

Scotiabank (Ireland) Designated Activity Company

DNB Markets, a division of DNB Bank ASA

RBC Europe Limited

TD Global Finance unlimited company

BNP Paribas

Goldman Sachs & Co. LLC

MUFG Securities (Europe) N.V.

U.S. Bancorp Investments, Inc.

Co-Managers

Deutsche Bank Aktiengesellschaft

Standard Chartered

Intesa Sanpaolo S.p.A.

Allied Irish Banks

 

Note:

 

1A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.

 

 

 

MiFID II and UK MiFIR professional clients and ECPs only/No PRIIPs KID: Manufacturer target market (MiFID II and UK MiFIR product governance) is eligible counterparties and professional clients only (all distribution channels). No PRIIPs key information document (KID) has been prepared as the notes are not available to retail investors in the European Economic Area or the United Kingdom.

 

The Issuer has filed a registration statement (including a preliminary prospectus supplement and accompanying prospectus) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the preliminary prospectus supplement and accompanying prospectus and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the preliminary prospectus supplement and accompanying prospectus if you request it by calling Barclays Bank PLC toll-free at (888) 603-5847, BofA Securities Europe SA toll-free at (800) 294-1322 or Citigroup Global Markets Europe AG toll-free at (800) 831-9146.

 

Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers or other notices were automatically generated as a result of this communication being sent via Bloomberg or another email system.

 

 

 

 

EXHIBIT 1

 

INFORMATION FURNISHED BY THE UNDERWRITERS

 

1.the names of the Underwriters on the cover page of the Preliminary Prospectus and the Final Prospectus.

2.the following information under the caption “Underwriting” in the Preliminary Prospectus and the Final Prospectus:

othe names of the Underwriters and their respective allocations

othe second sentence of the fourth paragraph

othe first paragraph under the sub-heading “Commissions and Discounts”

othe fourth and fifth sentences under the sub-heading “New Issue of Notes”

othe three paragraphs under the sub-heading “Price Stabilization and Short Positions”

 

 

 

 

EXHIBIT B

 

American Medical Systems Europe B.V.
Debt Securities

 

DELAYED DELIVERY CONTRACT

 

___________ __, ______

 

American Medical Systems Europe B.V.
c/o [Name and address of Representatives]

 

Attention:

 

Ladies and Gentlemen:

 

The undersigned hereby agree to purchase from American Medical Systems Europe B.V. (the “Issuer”), and the Issuer agrees to sell to the undersigned on __________ __, ____ (the “Delivery Date”), principal amount of the Issuer’s Debt Securities due ___________ __, ____ (the “Securities”), offered by the Basic Prospectus dated ____, as supplemented by its Final Prospectus dated ___________ __, ____, receipt of which is hereby acknowledged, at a purchase price of ____% of the ________ principal amount thereof, plus accrued interest from ____, to the Delivery Date, and on the further terms and conditions set forth in the contract.

 

Payment for the Securities which the undersigned has agreed to purchase on the Delivery Date shall be made to the Issuer or by wire transfer in same day funds, on the Delivery Date, upon delivery to the undersigned at the office of [name and address of Representatives], of the Securities to be purchased by the undersigned in definitive form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date.

 

The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date shall be subject only to the conditions that (1) the purchase of Securities to be made by the undersigned shall not on the Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject and (2) the Issuer, on or before ___________ __, ____, shall have sold to the Underwriters of the Securities (the “Underwriters”) such principal amount of the Securities as is to be sold to them pursuant to the Terms Agreement dated ___________ __, ____ between the Issuer, the Company and the Underwriters. The obligation of the undersigned to take delivery of and make payment for Securities shall not be affected by the failure of any purchaser to take delivery of and make payment for Securities pursuant to other contracts similar to this contract. The undersigned represents and warrants to you that its investment in the Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which govern such investment.

 

Promptly after completion of the sale to the Underwriters, the Issuer will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copies of the opinions of counsel for the Issuer and the Company delivered to the Underwriters in connection therewith.

 

By the execution hereof, the undersigned represents and warrants to the Issuer that all necessary corporate action for the due execution and delivery of this contract and the payment for and purchase of the Securities has been taken by it and no further authorization or approval of any governmental or other regulatory authority is required for such execution, delivery, payment or purchase, and that, upon acceptance hereof by the Issuer and mailing or delivery of a copy as provided below, this contract will constitute a valid and binding agreement of the undersigned in accordance with its terms.

 

B-1

 

 

[Name of Purchaser]
  
  
By:  
  Name:
  Title:

 

Accepted:

 

American Medical Systems Europe B.V.

 

 

By:    
  Name:  
  Title:  

 

B-2

 

 

EXHIBIT C

 

[FORM OF OPINION OF SHEARMAN & STERLING LLP]

 

C-1

 

 

EXHIBIT D

 

[FORM OF OPINION OF SUSAN THOMPSON]

 

D-1 

 

 

SCHEDULE A

 

Barclays Bank PLC
BofA Securities Europe SA
Citigroup Global Markets Europe AG
[●]
[●]
[●]
[●]
[●]
[●]

 

 

 

 

Exhibit 4.1

 

Execution Version

 

 

 

 

BOSTON SCIENTIFIC CORPORATION

 

AND

 

American Medical Systems Europe B.V.,

 

as Issuer or Guarantor, as applicable, for each series of Securities from time to time

 

AND

 

U.S. Bank Trust Company, National Association,

 

as Trustee

 

 

 

Indenture

 

Dated as of March 8, 2022

 

DEBT SECURITIES

 

 

 

 

 

 

 

BOSTON SCIENTIFIC CORPORATION

 

American Medical Systems Europe B.V.

 

Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of March 8, 2022

 

Trust Indenture
Act Section

 

Indenture Section

 

Sec.    310(a)(1) 607
  (a)(2) 607
  (b) 608
Sec. 312(c) 701
Sec. 314(a) 703
  (a)(4) 1004
  (c)(1) 102
  (c)(2) 102
  (e) 102
Sec. 315(b) 601
Sec. 316(a)(last  
  sentence) 101 (“Outstanding”)
  (a)(1)(A) 502, 512
  (a)(1)(B) 513
  (b) 508
  (c) 104(c)
Sec. 317(a)(1) 503
  (a)(2) 504
  (b) 1003
Sec. 318(a) 111

 

 

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

 

 

 

TABLE OF CONTENTS

 

Page

 

PARTIES1

 

RECITALS1

 

Article One
 
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
 
Section 101. Definitions 1
Section 102. Compliance Certificates and Opinions 12
Section 103. Form of Documents Delivered to Trustee 13
Section 104. Acts of Holders 13
Section 105. Notices, etc. to Trustee and Company, any Issuer and any Guarantor 14
Section 106. Notice to Holders; Waiver 16
Section 107. Effect of Headings and Table of Contents 17
Section 108. Successors and Assigns 17
Section 109. Separability Clause 17
Section 110. Counterpart Originals 17
Section 111. Benefits of Indenture 17
Section 112. Governing Law 17
Section 113. Legal Holidays 18
Section 114. No Recourse 18
Section 115. Submission to Jurisdiction 18
Section 116. Dutch Law Power of Attorney 19
Section 117. Waiver of Immunity 19
Section 118. Judgment Currency 19
Section 119. Waiver of Jury Trial 19
     
Article Two
 
SECURITY FORMS
Section 201. Forms Generally 20
Section 202. Form of Trustee’s Certificate of Authentication; Form of Registrar’s Certificate of Authentication 20
Section 203. Securities Issuable in Global Form 21
Section 204. Additional Responsibilities of the Paying Agent Regarding Securities Issued in Global Form under the New Safekeeping Structure 22

 

 

Note: This table of contents shall not, for any purpose, be deemed a part of the Indenture.

 

i

 

 

Article Three
 
THE SECURITIES
 
Section 301. Amount Unlimited; Issuable in Series 23
Section 302. Denominations 28
Section 303. Execution, Authentication, Delivery and Dating 28
Section 304. Temporary Securities 31
Section 305. Registration, Registration of Transfer and Exchange 33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities 37
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset 39
Section 308. Optional Extension of Stated Maturity 41
Section 309. Persons Deemed Owners 42
Section 310. Cancellation 43
Section 311. Computation of Interest 43
Section 312. Currency and Manner of Payments in Respect of Securities 43
Section 313. Appointment and Resignation of Successor Exchange Rate Agent 46
     
Article Four
 
SATISFACTION AND DISCHARGE
 
Section 401. Satisfaction and Discharge of Indenture 47
Section 402. Application of Trust Money 48
     
Article Five
 
REMEDIES
 
Section 501. Events of Default 49
Section 502. Acceleration of Maturity; Rescission and Annulment 50
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee 51
Section 504. Trustee May File Proofs of Claim 52
Section 505. Trustee May Enforce Claims Without Possession of Securities 52
Section 506. Application of Money Collected 53
Section 507. Limitation on Suits 53
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest 54
Section 509. Restoration of Rights and Remedies 54
Section 510. Rights and Remedies Cumulative 54
Section 511. Delay or Omission Not Waiver 54
Section 512. Control by Holders 55
Section 513. Waiver of Past Defaults 55
Section 514. Waiver of Stay or Extension Laws 56

 

ii

 

 

Article Six
 
THE TRUSTEE
   
Section 601. Notice of Defaults 56
Section 602. Certain Duties, Responsibilities and Rights of Trustee 56
Section 603. Trustee Not Responsible for Recitals or Issuance of Securities 59
Section 604. May Hold Securities 59
Section 605. Money Held in Trust 59
Section 606. Compensation and Reimbursement 60
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests; Disqualification 61
Section 608. Resignation and Removal; Appointment of Successor 61
Section 609. Acceptance of Appointment by Successor 62
Section 610. Merger, Conversion, Consolidation or Succession to Business 63
Section 611. Appointment of Authenticating Agent 64
     
Article Seven
 
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
 
Section 701. Disclosure of Names and Addresses of Holders 65
Section 702. Reports by Trustee 66
Section 703. Reports by Company 66
     
Article Eight
 
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
Section 801. Company and Issuer May Consolidate, etc., Only on Certain Terms 67
Section 802. Successor Person Substituted 68
     
Article Nine
 
SUPPLEMENTAL INDENTURES
 
Section 901. Supplemental Indentures Without Consent of Holders 68
Section 902. Supplemental Indentures with Consent of Holders 70
Section 903. Execution of Supplemental Indentures 71
Section 904. Effect of Supplemental Indentures 71
Section 905. Conformity with Trust Indenture Act 71
Section 906. Reference in Securities to Supplemental Indentures 71
Section 907. Notice of Supplemental Indentures 72
Section 908. Effect on Senior Indebtedness 72

 

iii

 

 

Article Ten
 
COVENANTS
   
Section 1001. Payment of Principal, Premium, if any, and Interest 72
Section 1002. Maintenance of Office or Agency 72
Section 1003. Money for Securities Payments to Be Held in Trust 74
Section 1004. Statement as to Compliance 75
Section 1005. Additional Amounts 75
Section 1006. Payment of Taxes and Other Claims 76
Section 1007. Maintenance of Principal Properties 76
Section 1008. Corporate Existence 77
Section 1009. Limitation on Liens 77
Section 1010. Waiver of Certain Covenants 78
     
Article Eleven
 
REDEMPTION OF SECURITIES
 
Section 1101. Applicability of Article 78
Section 1102. Election to Redeem; Notice to Trustee 78
Section 1103. Selection by Trustee of Securities to Be Redeemed 79
Section 1104. Notice of Redemption 79
Section 1105. Deposit of Redemption Price 80
Section 1106. Securities Payable on Redemption Date 81
Section 1107. Securities Redeemed in Part 81
Section 1108. Optional Redemption Due to Changes in Tax Treatment 82
     
Article Twelve
 
SINKING FUNDS
 
Section 1201. Applicability of Article 82
Section 1202. Satisfaction of Sinking Fund Payments with Securities 83
Section 1203. Redemption of Securities for Sinking Fund 83
     
Article Thirteen
 
REPAYMENT AT OPTION OF HOLDERS
 
Section 1301. Applicability of Article 84
Section 1302. Repayment of Securities 84
Section 1303. Exercise of Option 84
Section 1304. When Securities Presented for Repayment Become Due and Payable 85
Section 1305. Securities Repaid in Part 86

 

iv

 

 

Article Fourteen
 
DEFEASANCE AND COVENANT DEFEASANCE
   
Section 1401. Issuer’s Option to Effect Defeasance or Covenant Defeasance 86
Section 1402. Defeasance and Discharge 86
Section 1403. Covenant Defeasance 87
Section 1404. Conditions to Defeasance or Covenant Defeasance 87
Section 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions 89
Section 1406. Reinstatement 90
     
Article Fifteen
 
MEETINGS OF HOLDERS OF SECURITIES
 
Section 1501. Purposes for Which Meetings May Be Called 90
Section 1502. Call, Notice and Place of Meetings 90
Section 1503. Persons Entitled to Vote at Meetings 91
Section 1504. Quorum; Action 91
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings 92
Section 1506. Counting Votes and Recording Action of Meetings 93
     
Article Sixteen
 
SUBORDINATION OF SECURITIES AND GUARANTEES
 
Section 1601. Agreement to Subordinate 93
Section 1602. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities 94
Section 1603. No Payment on Securities in Event of Default on Senior Indebtedness 96
Section 1604. Payments on Securities Permitted 96
Section 1605. Authorization of Holders to Trustee to Effect Subordination 96
Section 1606. Notices to Trustee 96
Section 1607. Trustee as Holder of Senior Indebtedness 97
Section 1608. Modifications of Terms of Senior Indebtedness 97
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent 97
Section 1610. Satisfaction and Discharge; Defeasance and Covenant Defeasance 98
     
Article Seventeen
 
Guarantee
Section 1701. Guarantors’ Guarantee 98
Section 1702. Severability 99
Section 1703. Priority of Guarantee 99
Section 1704. Waiver by Guarantors 99
Section 1705. Limitation of Guarantors’ Liability 99
Section 1706. Subrogation 100
Section 1707. Reinstatement 100
Section 1708. Release of Guarantees 100
Section 1709. Benefits Acknowledged 100

 

v

 

 

Article Eighteen
 
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
 
Section 1801. Exemption from Individual Liability 101

 

EXHIBIT A FORMS OF CERTIFICATION
EXHIBIT B FORM OF SUPPLEMENTAL INDENTURE

 

vi

 

 

INDENTURE, dated as of March 8, 2022, among Boston Scientific Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal office at 300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234, American Medical Systems Europe B.V., incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) in the Netherlands with its statutory seat in Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under number 34185686 and an indirect wholly owned subsidiary of the Company (herein called “AMS Europe”), having its registered office at Vestastraat 6, 6468 EX Kerkrade, the Netherlands, each Issuer (as defined below) from time to time party hereto, each Guarantor (as defined below) from time to time party hereto and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”).

 

RECITALS OF THE COMPANY

 

The Company and AMS Europe have duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of unsecured senior or subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”) of the applicable Issuer, which may be convertible into or exchangeable for any securities of any Person (including the Company or the Issuer), to be issued in one or more series as provided in this Indenture.

 

This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.

 

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

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

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

 

Article One

 

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 101.          Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

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

 

(2)            all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act;

 

 

 

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

 

(4)            the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

Certain terms, used principally in Article Three, are defined in that Article.

 

Act”, when used with respect to any Holder, has the meaning specified in Section 104.

 

Additional Amounts” has the meaning specified in Section 1005.

 

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

 

Authenticating Agent” means any Person appointed by the Trustee or Registrar, as applicable, to act on behalf of the Trustee or Registrar, as applicable, pursuant to Section 611 to authenticate Securities.

 

Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made on the same or on different days of the week in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.

 

Bearer Security” means any Security except a Registered Security.

 

Board of Directors” means the board of directors, board of managing directors, board of managers or equivalent (as applicable) of the Company, each Issuer or any Guarantor, as the case may be, or any duly authorized committee of that Board of Directors.

 

 2 
 

 

Board Resolution” means a copy of a resolution certified by the Secretary, Corporate Secretary, Assistant Secretary, Managing Director, authorized signatory or manager (as applicable) of the Company, any Issuer or any Guarantor, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.

 

Clearstream” means Clearstream Banking, S.A., or its successor.

 

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

 

Common Depositary” has the meaning specified in Section 304.

 

Common Safekeepermeans, with respect to any Securities issued in global form under the New Safekeeping Structure, Euroclear, Clearstream or another Person designated as Common Safekeeper by the ICSDs.

 

Common Service Providermeans, with respect to any Securities issued in global form under the New Safekeeping Structure, the entity appointed by the ICSDs to service such Securities.

 

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

 

Company Request” or “Company Order” means a written request or order signed in the name of the Company, an Issuer or any Guarantor by its Chief Executive Officer, its President, any Vice President, its Treasurer, any Managing Director, its principal executive officer, its principal financial officer or its principal accounting officer, and delivered to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Trustee or the Security Registrar, as applicable.

 

Consolidated Net Worth” means, at any date, all amounts which would, in accordance with GAAP, be included under shareholders’ equity or classified as temporary equity, as prescribed by the Financial Accounting Standards Board or by the Commission (i.e. contingent stock repurchase obligations), on a consolidated balance sheet of the Company and its Subsidiaries as at such time, plus special charges (which would be designated as merger-related charges and expenses in the notes to the Company’s audited annual consolidated financial statements) incurred in merging of operations related to mergers and acquisitions.

 

 3 
 

 

Consolidated Tangible Assets” means, at any date, the Consolidated Total Assets minus (without duplication) the net book value of all assets which would be treated as intangible assets, as determined on a consolidated basis in accordance with GAAP.

 

Consolidated Total Assets” means, at any date, the net book value of all assets of the Company and its Subsidiaries as determined on a consolidated basis in accordance with GAAP.

 

Conversion Date” has the meaning specified in Section 312(d).

 

Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) the Euro both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Union or (iii) any currency unit (or composite currency) other than the Euro for the purposes for which it was established.

 

Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall principally be administered, which office on the date of execution of this instrument is located at U.S. Bank Trust Company, National Association, Attention: Corporate Trust Services, One Federal Street, 3rd Floor, Boston, MA 02110, or such other office or address as the Trustee may designate from time to time by notice to the Company and the Issuer.

 

corporation” includes corporations, associations, companies and business or statutory trusts.

 

coupon” means any interest coupon appertaining to a Bearer Security.

 

Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.

 

Debt” means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed.

 

Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

 

Defaulted Interest” has the meaning specified in Section 307.

 

Depositary” means, with respect to Registered Securities of any series, for which the Company or Issuer shall determine that such Registered Securities will be issued in permanent global form, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other applicable statute or regulations, which in each case, shall be designated by the Company pursuant to Section 301.

 

 4 
 

 

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

 

Dollar Equivalent of the Currency Unit” has the meaning specified in Section 312(g).

 

Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 312(f).

 

Election Date” has the meaning specified in Section 312(h).

 

Euro” means the basic unit of currency among participating European Union countries, as revised or replaced from time to time.

 

Euroclear” means Euroclear Bank S.A./N.V. as operator of Euroclear System, and any successor thereto.

 

European Monetary System” means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Communities.

 

European Union” means the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community, as may be modified from time to time.

 

Event of Default” has the meaning specified in Section 501.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

Exchange Date” has the meaning specified in Section 304.

 

Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing House bank, designated pursuant to Section 301 or Section 313.

 

Exchange Rate Officer’s Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by the Treasurer, any Vice President or any Managing Director of the Issuer or Guarantor.

 

Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.

 

 5 
 

 

Foreign Currency” means any Currency other than Currency of the United States.

 

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, which are in effect on the date of the applicable issuance of Securities hereunder, but without giving effect to Accounting Standards Update (ASU) No. 2016-02 and Accounting Standards Codification (ASC) 842 and related interpretations.

 

Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (i) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.

 

Guarantee” means the guarantee by any Guarantor of an Issuer’s obligations under this Indenture.

 

Guarantor” means, with respect to any series of Securities, any Person that is party to this Indenture and designated as such with respect to such series in accordance with this Indenture, which may include the Company, AMS Europe or any other Subsidiary of the Company, in all cases unless and until such party shall have been released from its Guarantee pursuant to Section 1708 hereof.

 

Holder” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.

 

ICSDs” means Euroclear and Clearstream.

 

Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively and shall include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

 

 6 
 

 

Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

 

interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security, and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 1005, includes such Additional Amounts.

 

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

 

Issuer” means, with respect to any series of Securities, any Person that is party to this Indenture and designated as such with respect to such series in accordance with this Indenture, which may include the Company, AMS Europe or any other Subsidiary of the Company.

 

Judgment Currency” has the meaning specified in Section 118.

 

Lien” means any pledge, mortgage, lien, charge, encumbrance or other security interest.

 

Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.

 

 7 
 

 

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

 

New Safekeeping Structure” means the structure under which Registered Securities in global form intended to be recognized as eligible collateral for Eurosystem monetary policy and intra-day credit operations by the Eurosystem must be issued. Registered Securities in global form issued under the New Safekeeping Structure must be registered in the name of a nominee of the Common Safekeeper and safekept by the Common Safekeeper.

 

Officer’s Certificate” means a certificate signed by the Chief Executive Officer, the President, a Vice President, the Treasurer, the Secretary, the Corporate Secretary, an Assistant Secretary, a director, a Managing Director or a manager (as applicable) of the Company, an Issuer or a Guarantor, as applicable, and delivered to the Trustee.

 

Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company, an Issuer or any Guarantor, including an employee of the Company, an Issuer or any Guarantor, and who shall be reasonably acceptable to the Trustee.

 

Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

 

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

 

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

 

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

 

 8 
 

 

(iii)           Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Company or an Issuer has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and

 

(iv)            Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company or an Issuer;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company or an Issuer as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (iv) Securities owned by the Company, an Issuer or any Guarantor or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, an Issuer or any Guarantor or any other obligor upon the Securities or any Affiliate of the Company or any such other obligor.

 

 9 
 

 

Paying Agent” means any Person (including the Company, an Issuer or a Guarantor acting as Paying Agent) authorized by the Issuer to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of such Issuer.

  

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

 

Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.

 

Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.

 

Principal Property” means any plant, warehouse, technology center or other property, together with the land upon which it is erected and fixtures comprising a part thereof, owned by the Company and located in the United States, the gross book value (without deduction of any reserve for depreciation) of which on the date as of which the determination is being made is an amount which exceeds 10% of Consolidated Net Worth, other than any such plant, warehouse, technology center or other property or any portion thereof (together with the land upon which it is erected and fixtures comprising a part thereof) which, in the opinion of the Board of Directors of the Company, is not of material importance to the total business conducted by the Company and its Subsidiaries, taken as a whole.

 

Receivables” means any accounts receivable of any Person, including without limitation, any thereof constituting or evidenced by chattel paper, instruments or intangibles (as defined in the Uniform Commercial Code of the State of New York), and all proceeds thereof and rights (contractual and other) and collateral related thereto.

 

Receivables Transaction” means any transactions or series of related transactions providing for the financing of Receivables of the Company or any of its subsidiaries.

 

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

 

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

 

Registered Security” means any Security registered in the Security Register.

 

Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301, which, if the Securities are to be issued in global form under the New Safekeeping Structure, shall be the Business Day immediately preceding each interest payment date.

 

 10 
 

 

Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.

 

Required Currency” has the meaning specified in Section 118.

 

Responsible Officer”, when used with respect to the Trustee, shall mean any officer of the Trustee who is assigned by the Trustee and who has direct responsibility for administration of this Indenture and, for purposes of Section 601 or subparagraph (3)(b) of the first paragraph of Section 602 hereof, also includes any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture.

 

Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

 

Senior Indebtedness” means, in respect of any Subordinating Party, the principal of (and premium, if any) and unpaid interest on indebtedness of such Subordinating Party (including indebtedness of others guaranteed by such Subordinating Party), whether outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any indebtedness of such Subordinating Party which when incurred and without respect to any election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse to such Subordinating Party, (b) any indebtedness of such Subordinating Party to any of its subsidiaries, (c) indebtedness to any employee of such Subordinating Party, (d) any liability for taxes and (e) Trade Payables, unless in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such indebtedness is not senior or prior in right of payment to the Securities or Guarantees thereof, and (f) renewals, extensions, modifications and refundings of any such indebtedness. This definition may be modified or superceded by a supplemental indenture.

 

Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.

 

Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date may be extended pursuant to the provisions of Section 308.

 

 11 
 

 

Subordinating Party” has the meaning specified in Section 1601.

 

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

 

Trade Payables” means accounts payable or any other indebtedness or monetary obligations to trade creditors created or assumed by the Company or any Subsidiary of the Company in the ordinary course of business in connection with the obtaining of materials or services.

 

Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905.

 

Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.

 

United States” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

Valuation Date” has the meaning specified in Section 312(c).

 

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

 

Voting Stock” means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

 

Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

 

Section 102.         Compliance Certificates and Opinions. Upon any application or request by the Company, an Issuer or any Guarantor to the Trustee to take any action under any provision of this Indenture, the Company, such Issuer or such Guarantor, as applicable, shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

 12 
 

 

Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:

 

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

 

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

 

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

 

(4)            a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.

 

Section 103.         Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion as to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer of the Company, an Issuer or any Guarantor, as applicable, may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, an Issuer, or such Guarantor, as applicable, stating that the information as to such factual matters is in the possession of the Company, such Issuer or such Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations as to such matters are erroneous.

 

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

 

 13 
 

 

Section 104.         Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the applicable Issuer or applicable Guarantor. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the applicable Issuer and any applicable Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.

 

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

 

(b)            The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.

 

(c)            The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Issuer may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner that the Trustee deems sufficient.

 

 14 
 

 

(d)            If an Issuer shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

 

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

 

Section 105.         Notices, etc. to Trustee and Company, any Issuer and any Guarantor. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)            the Trustee by any Holder or by the Company, any Issuer or any Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Services, or

 

(2)            the Company, any Issuer or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid or by overnight delivery service, to the Company, any Issuer, or any Guarantor addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company, such Issuer or such Guarantor.

 

 15 
 

 

Section 106.         Notice to Holders; Waiver. Where this Indenture provides for notice of any event to Holders of Registered Securities by an Issuer or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice. Notwithstanding anything to the contrary contained herein, as long as any Securities are in permanent global form, notice to the Holders of such Securities may be made electronically in accordance with the procedures of the Depositary (or, if applicable, the Common Safekeeper).

 

If by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.

 

Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of the first such publication.

 

If by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.

 

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

 

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

 

 16 
 

 

 

 

 

 

Section 107.         Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 108.         Successors and Assigns. All covenants and agreements in this Indenture by the Company, any Issuer and any Guarantor shall bind their respective successors and assigns, whether so expressed or not.

 

Section 109.         Separability Clause. In case any provision in this Indenture or in any Security or coupon or any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 110.         Counterpart Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be deemed to be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture (and each amendment, modification and waiver in respect thereof) and of signature pages by facsimile or electronic transmission (including .pdf file, .jpeg file or any electronic signature complying with the U.S. federal ESIGN Act of 2000, including Orbit, Adobe Sign, DocuSign, or any other similar platform identified by the Company and reasonably available at no undue burden or expense to the Trustee) shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. Any electronically signed document delivered via email from a person purporting to be an authorized officer shall be considered signed or executed by such authorized officer on behalf of the applicable Person.

 

Section 111.         Benefits of Indenture. Nothing in this Indenture or in the Securities or coupons or any Guarantee, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 112.         Governing Law. THIS INDENTURE, THE SECURITIES AND THE COUPONS AND ANY GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.

 

 17 
 

 

Section 113.         Legal Holidays. In any case where any Interest Payment Date, Redemption Date, sinking fund payment date, Repayment Date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date or Repayment Date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Repayment Date, Stated Maturity or Maturity, as the case may be.

 

Section 114.         No Recourse. No recourse for the payment of the principal of or premium, if any, or interest on any Security or any coupons appertaining thereto, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company, any Issuer or any Guarantor in this Indenture or in any supplemental indenture, or in any Security or any coupons appertaining thereto, or because of the creation of any indebtedness represented thereby, shall be had against any director, officer, employee, or stockholder as such, past, present or future, of the Company, any Issuer or any Guarantor or any of their respective Affiliates or any successor Person of the Company, any Issuer or any Guarantor, either directly or through the Company, any Issuer or any Guarantor or any of their respective Affiliates or any successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities.

 

Section 115.         Submission to Jurisdiction. Each Issuer and each Guarantor not organized in the United States irrevocably appoints the Company as its agent to receive service of process or other legal summons in any suit, action or proceeding with respect to this Indenture, the Securities and the Guarantees and for actions brought under the United States federal or state securities laws brought in any United States federal or state court located in the Borough of Manhattan in the County and City of New York. The Company, each Issuer and each Guarantor irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the County and City of New York over any suit, action or proceeding arising out of or relating to this Indenture, the Securities or the Guarantees and for actions brought under the United States federal or state securities laws. Service of any process, summons, notice or document by registered mail addressed to the Company, each Issuer or any Guarantor at the address in Section 105 or in accordance with the second preceding sentence shall be effective service of process against the Company, each Issuer or any Guarantor for any suit, action or proceeding brought in any such court. Each Issuer and each Guarantor irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon each Issuer and each Guarantor and may be enforced in any other courts to whose jurisdiction the Company or any Issuer is or may be subject, by suit upon judgment and in accordance with applicable law. Each Issuer and each Guarantor further agrees that nothing herein shall affect any Holder's right to effect service of process in any other manner permitted by law or bring a suit action or proceeding (including a proceeding for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable law.

 

 18 
 

 

Section 116.         Dutch Law Power of Attorney. If AMS Europe is represented by (an) attorney(s) in connection with the execution of this Indenture or any agreement or document pursuant hereto, and the relevant power of attorney is expressed to be governed by Dutch law, such choice of law is hereby accepted by each of the parties hereto, in accordance with Article 14 of the Hague Convention on the Law Applicable to Agency of 14 March 1978.

 

Section 117.         Waiver of Immunity. To the extent that any Issuer and any Guarantor, or any of their respective properties, assets or revenues may have or may hereafter become entitled to, or have attributed to such Person, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of any New York state or United States federal court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any such court in which proceedings may at any time be commenced, with respect to the obligations and liabilities of such Person or any other matter under or arising out of or in connection with this Indenture, such Person hereby irrevocably and unconditionally waives or will waive such right to the extent permitted by applicable law, and agree not to plead or claim, any such immunity and consent to such relief and enforcement.

 

Section 118.         Judgment Currency. Each of the Company, any Issuer and any Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Required Currency could be purchased in The City of New York with the Judgment Currency on the New York Banking Day preceding that on which a final unappealable judgment is given and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a legal holiday in The City of New York.

 

Section 119.         Waiver of Jury Trial. EACH OF THE COMPANY, EACH ISSUER, EACH GUARANTOR, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

 19 
 

 

Article Two

 

SECURITY FORMS

 

Section 201.         Forms Generally. The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons, shall be in substantially the forms as shall be established by, or pursuant to a Board Resolution or, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate pursuant to a Board Resolution, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the forms of Securities or coupons of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary, Assistant Secretary or Managing Director of the Issuer, and delivered to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities or coupons. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.

 

Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.

 

The Trustee’s certificate of authentication on all Securities (other than those Securities authenticated by the Security Registrar, which certificate of authentication shall be substantially in the form set forth in this Article) shall be in substantially the form set forth in this Article.

 

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

 

Section 202.         Form of Trustee’s Certificate of Authentication; Form of Registrar’s Certificate of Authentication . Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

Dated: ____________________

 

 20 
 

 

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

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
   
  By:                          
    Authorized Signatory

 

Subject to Section 611, the Security Registrar’s certificate of authentication shall be in substantially the following form:

 

[INSERT NAME OF SECURITY REGISTRAR FOR APPLICABLE SERIES OF SECURITIES],
as Security Registrar
   
  By:                          
    Authorized Signatory

 

The Common Safekeeper’s effectuation shall be in substantially the following form:

 

[INSERT NAME OF COMMON SAFEKEEPER FOR APPLICABLE SERIES OF SECURITIES],
as Common Safekeeper
   
  By:                          
    Authorized Signatory

 

Section 203.         Securities Issuable in Global Form. If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding clause (10) of Section 301, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, as set forth in Section 204, in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Issuer with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

 

 21 
 

 

The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Issuer and the Issuer delivers to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.

 

Notwithstanding any provisions of Section 307 to the contrary, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.

 

Notwithstanding the provisions of Section 309 and except as provided in the preceding paragraph, the Company, the Issuer, the Trustee and any agent of the Company, the Issuer and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security (i) in the case of a permanent global Security in registered form, the Holder of such permanent global Security in registered form, or (ii) in the case of a permanent global Security in bearer form, Euroclear or Clearstream.

 

Section 204.         Additional Responsibilities of the Paying Agent Regarding Securities Issued in Global Form under the New Safekeeping Structure. (a) The Paying Agent will inform the ICSDs (through the Common Service Provider appointed by the ICSDs) to service the Securities issued in global form under the New Safekeeping Structure of the initial issue outstanding amount (“IOA”) of such Securities on or prior to the issue date applicable to such Securities.

 

(b)            If any event occurs that requires a markup or markdown of the records that an ICSD holds for its customers to reflect such customers’ interest in any Security issued in the global form under the New Safekeeping Structure, the Paying Agent will promptly provide details of the amount of such markup or markdown, together with a description of the event that requires it, to the ICSDs (through the Common Service Provider) to ensure that the records of the ICSDs remain at all times accurate.

 

 22 
 

 

(c)            The Paying Agent will, prior to each payment on any Security issued in global form under the New Safekeeping Structure, compare its records of the IOA of any such Security with the information received from the ICSDs (through the Common Service Provider) with respect to the records reflecting the IOA maintained by the ICSDs for such Security and will promptly inform the ICSDs (through the Common Service Provider) of any discrepancies.

 

(d)            The Paying Agent will promptly assist the ICSDs (through the Common Service Provider) in resolving any discrepancy identified in the records reflecting the IOA of any Security issued in global form under the New Safekeeping Structure.

 

(e)            The Paying Agent will promptly provide to the ICSDs (through the Common Service Provider) details of all amounts paid under any Security issued in global form under the New Safekeeping Structure (or, where such Security provides for delivery of assets other than cash, of the assets so delivered).

 

(f)            The Paying Agent will promptly provide to the ICSDs (through the Common Service Provider) notice of any changes to any Security issued in global form under the New Safekeeping Structure known to the Paying Agent that will affect the amount of, or date for, any payment due under such Security issued in global form under the New Safekeeping Structure.

 

(g)            The Paying Agent will promptly provide to the ICSDs (through the Common Service Provider) copies of all notices in its possession that are given by or on behalf of the Issuer to the holders of any Security issued in the global form under the New Safekeeping Structure.

 

(h)            The Paying Agent will promptly pass on to the Issuer all communications it receives from the ICSDs directly or through the Common Service Provider relating to any Security issued in global form under the New Safekeeping Structure. Any such notice shall be deemed to have been conclusively given by being sent to the Issuer in accordance with Section 105.

 

(i)            The Paying Agent will promptly notify the ICSDs (through the Common Service Provider) of any failure by the Issuer to make any payment or delivery due under any issuance of Securities issued global form under the New Safekeeping Structure when due.

 

(j)            Notwithstanding anything to the contrary contained herein, the Paying Agent shall perform its duties under this Section 204 in accordance with the applicable procedures agreed between the Paying Agent and the ICSDs.

 

Article Three

 

THE SECURITIES

 

Section 301.         Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be subordinated in right of payment to Senior Indebtedness as provided in Article Sixteen.

 

 23 
 

 

The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions of the Issuer or pursuant to authority granted by one or more Board Resolutions of the Issuer and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (19) below), if so provided, may be determined from time to time by the Issuer with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time):

 

(1)            The form and title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities), whether such Securities are senior or subordinated and the Issuer of such Securities;

 

(2)            any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);

 

(3)            the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities of the series shall be payable;

 

(4)            the price or prices at which the Securities are being offered or the method of determining those prices;

 

(5)            the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable, the right, if any, of the Issuer to defer or extend an Interest Payment Date, and the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;

 

(6)            the place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and, if different than the location specified in Section 106, the place or places where notices or demands to or upon the Issuer in respect of the Securities of the series and this Indenture may be served;

 

 24 
 

 

(7)            the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer or a Holder thereof, if the Issuer or such Holder is to have that option;

 

(8)            whether the Securities are guaranteed and, if so, the identity of the Guarantor(s), and any deletions from, modifications to, or additions to such Guarantees, Events of Default or covenants with respect to such Guarantees;

 

(9)            the obligation or right, if any, of the Issuer to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;

 

(10)           if other than denominations of $2,000 and any integral multiples of $1,000 in excess thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable and, if other than denominations of $5,000 and any integral multiples of $1,000 in excess thereof, the denomination or denominations in which any Bearer Securities of the series shall be issuable;

 

(11)          if other than the Trustee, the identity of each Security Registrar, Paying Agent and/or any other agent;

 

(12)          if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;

 

(13)          if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;

 

(14)          whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

 

(15)          whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;

 

 25 
 

 

(16)          the designation of the initial Exchange Rate Agent, if any, or any depositaries;

 

(17)          the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;

 

(18)          provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

(19)          any deletions from, modifications of or additions to the Events of Default or covenants with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;

 

(20)          whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of Bearer Securities, whether such Securities of any series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, whether Registered Securities of the series may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations), and the circumstances under which and the place or places where any such exchanges may be made and if Securities of the series are to be issuable in global form, the identity and any temporary global security representing Outstanding Securities of any initial depository therefor;

 

(21)          the date as of which any Bearer Securities of the series and any temporary global security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

 

(22)          the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;

 

 26 
 

 

(23)          if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;

 

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

 

(25)          whether, under what circumstances and the Currency in which the Issuer will pay Additional Amounts as contemplated by Section 1005 on the Securities of the series to any Holder (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);

 

(26)          if the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company or the Issuer), the terms and conditions upon which such Securities will be so convertible or exchangeable;

 

(27)          whether the Securities of such series or any Guarantees thereof are subject to subordination and the terms of such subordination;

 

(28)          if the Securities of the series are to be listed on any exchange or automated quotation system or admitted to trading on any market;

 

(29)          whether the Securities of the series are to be made eligible for any asset purchase or similar program as part of monetary policy measures implemented by any central bank or similar institution; and

 

(30)          any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).

 

All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution or pursuant to authority granted by one or more Board Resolutions (subject to Section 303) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.

 

If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions of the Issuer or pursuant to authority granted by one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the issuance of the first Security of such series.

 

 27 
 

 

It is intended that any Securities issued in global form under the New Safekeeping Structure will be recognized as eligible collateral for Eurosystem monetary policy and intra-day credit operations by the Eurosystem either upon issue, or at any or all times during their life. Any such Securities will be issued in permanent global form, without interest coupons, safekept by the Common Safekeeper, as common safe-keeper for the ICSD, duly executed by the Issuer, authenticated by the Security Registrar and effectuated by the Common Safekeeper.

 

Section 302.         Denominations. The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof and the Bearer Securities of such series, other than the Bearer Securities issued in global form (which may be of any denomination), shall be issuable in the denomination of $5,000 and any integral multiples of $1,000 in excess thereof.

 

Section 303.         Execution, Authentication, Delivery and Dating. The Securities and any coupons appertaining thereto shall be executed on behalf of the Company or any other Issuer, and any Guarantee (or notation thereof) shall be executed on behalf of the Guarantor, by its Chief Executive Officer, its President, any Vice President, its Treasurer, any Managing Director, its principal executive officer, its principal financial officer, its principal accounting officer, a director or manager (as applicable) attested by its Corporate Secretary, an Assistant Secretary or a Managing Director. The signature of any of these officers on the Securities or coupons or any Guarantee (or notation thereof) may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities or Guarantee (or notation thereof).

 

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

 

At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series together with any coupon appertaining thereto, executed by the Issuer and any Guarantee executed by the Guarantor to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar, in accordance with such Company Order shall authenticate and deliver such Securities and, in the case of Securities issued in global form under the New Safekeeping Structure, effectuated by the Common Safekeeper by the manual signature of an authorized signatory thereof; provided, however, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided further that, unless otherwise specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be issued at one time and if the Board Resolution, Officer’s Certificate pursuant to a Board Resolution, or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, date of issuance and date from which interest shall accrue.

 

 28 
 

 

In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar and the Trustee, shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating in effect (subject to customary exceptions):

 

(a)            that the form or forms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;

 

(b)            that the terms of such Securities and any coupons have been established in conformity with the provisions of this Indenture;

 

(c)            that such Securities, together with any coupons appertaining thereto, and the related Guarantees when completed by appropriate insertions and executed and delivered by the Issuer and the Guarantor, as applicable, to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, to the Security Registrar for authentication in accordance with this Indenture, authenticated and delivered by the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, by the Security Registrar and effectuated by the Common Safekeeper by the signature of an authorized signatory thereof in accordance with this Indenture and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will be the legal, valid and binding obligations of the Issuer and the Guarantor, as applicable, enforceable against the Issuer and the Guarantor, as applicable, in accordance with their terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally (including without limitation on all laws relating to fraudulent transfers), to general principles of equity;

 

 29 
 

 

(d)            that all laws and requirements in respect of the execution and delivery by the Issuer of such Securities, any coupons and of the supplemental indentures, if any, and in respect of the execution and delivery by the Guarantor of the Guarantee, as applicable, have been complied with and that authentication and delivery of such Securities and any coupons and the execution and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;

 

(e)            that the Issuer has the corporate power to issue such Securities and any coupons, and has duly taken all necessary corporate action with respect to such issuance and, if applicable, that the Guarantor has the corporate power to issue such Guarantee, and has duly taken all necessary corporate action with respect to such issuance; and

 

(f)            that the issuance of such Securities and any coupons will not contravene the articles of incorporation or by-laws (or similar organizational documents) of the Issuer and, if applicable, that the issuance of the Guarantee will not contravene the articles of incorporation or by-laws (or similar organizational documents) of the Guarantor, or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage or other agreement known to such Counsel by which the Issuer or Guarantor, as applicable, is bound.

 

Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.

 

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

 

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.

 

No Security or coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee or the Securities Registrar, as applicable, by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.

 

Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security for cancellation as provided in Section 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Issuer, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

 30 
 

 

Section 304.         Temporary Securities. Pending the preparation of definitive Securities of any series, the Issuer may execute, and any Guarantor may execute any Guarantee thereon, and upon Company Order the Trustee shall authenticate and deliver (or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and shall instruct the Common Safekeeper to effectuate the temporary Securities and such temporary Securities shall have been effectuated by the Common Safekeeper), temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.

 

Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Issuer shall execute and the Trustee shall authenticate and deliver (or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and shall instruct the Common Safekeeper to effectuate the such Securities and such Securities shall have been effectuated by the Common Safekeeper) in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and each Guarantor shall execute a Guarantee thereof (or notation thereof), if applicable; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct) or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, be delivered to the Common Safekeeper for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

 

 31 
 

 

Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Issuer shall deliver to the Trustee or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, to the Security Registrar definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Issuer. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, to the Security Registrar, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and shall instruct the Common Safekeeper to effectuate, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301); provided further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303; and provided further that in the case of temporary Securities issued in global form under the New Safekeeping Structure, the definitive Securities to be delivered in exchange for any such temporary global Security shall be in permanent global registered form only.

 

Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States.

 

 32 
 

 

Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, by the Common Safekeeper to the Security Registrar of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301), for credit without further interest thereon on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, to the Common Safekeeper a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream or, in the case of temporary Securities issued in global form under the New Safekeeping Structure, the Common Safekeeper, and not paid as herein provided shall be returned to the Trustee or the Security Registrar, as applicable, immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Issuer in accordance with (but otherwise subject to) Section 1003.

 

Section 305.         Registration, Registration of Transfer and Exchange. The Issuer shall cause to be kept a register for each series of Securities issued by it (the registers maintained being herein sometimes referred to collectively as the “Security Register”), in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Registered Securities and of transfers of Registered Securities; provided, however, that there shall be only one Security Register per series of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, such Person set forth in the Securities of the applicable series is hereby initially appointed as security registrar (in each case, the “Security Registrar”) for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided.

 

 33 
 

 

 

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and the Common Safekeeper shall effectuate, in the name of the designated transferee, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor and, if applicable, the Guarantor shall execute any Guarantee thereon.

 

At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and the Common Safekeeper shall effectuate, the Registered Securities which the Holder making the exchange is entitled to receive and, if applicable, the Guarantor shall execute any Guarantee thereon. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.

 

If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officer’s Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Issuer in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Issuer and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.

 

 34 
 

 

Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and if applicable, the Guarantor shall execute the Guarantee (or notation thereof), and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Issuer shall deliver to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, to the Security Registrar definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Issuer and, if applicable, the Guarantor. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other depositary as shall be specified in the Company Order or, in the case of Securities issued in global form under the New Safekeeping Structure, by the Common Safekeeper with respect thereto to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and the Common Safekeeper shall effectuate, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.

 

 35 
 

 

All Securities and any Guarantees thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer and each Guarantor, as applicable, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and any Guarantee thereof surrendered upon such registration of transfer or exchange.

 

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

 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.

 

If at any time the Depositary or Common Safekeeper, as applicable, for any permanent global Registered Securities of any series notifies the Issuer that it is unwilling or unable to continue as Depositary or Common Safekeeper, as applicable, for such permanent global Registered Securities or if at any time the Depositary or Common Safekeeper, as applicable, for such permanent global Registered Securities shall no longer be eligible under applicable law, the Issuer shall appoint a successor Depositary or cause a new Common Safekeeper to be appointed, as applicable, eligible under applicable law with respect to such permanent global Registered Securities. If a successor Depositary or Common Safekeeper, as applicable, eligible under applicable law for such global Registered Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer, and if applicable, each Guarantor, will execute, and the Trustee, or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series and tenor, will authenticate and deliver and, in the case of Securities issued in global form under the New Safekeeping Structure, the Common Safekeeper shall effectuate such definitive Registered Securities of such series and tenor, in any authorized denominations, in an aggregate principal amount equal to the principal amount of such permanent global Registered Securities, in exchange for such permanent global Registered Securities.

 

The Issuer may at any time and in its sole discretion determine that any permanent global Registered Securities of any series shall no longer be maintained in global form; provided that Securities issued in global form under the New Safekeeping Structure must be maintained in global form. In such event the Issuer, and if applicable, each Guarantor, will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series and tenor, will authenticate and deliver, definitive Registered Securities of such series and tenor in any authorized denominations, in an aggregate principal amount equal to the principal amount of such permanent global Registered Securities, in exchange for such permanent global Registered Securities.

 

 36 
 

 

The Issuer shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer that may be imposed under this Indenture with respect to the Securities of any series pursuant to the terms thereof established as contemplated by Section 301 or under applicable law with respect to any transfer of any interest in any such Security (including any transfers between or among any depositary (including any Depositary or Common Depositary), or its nominee, as a Holder of a Security issued in global form, any participants in such depositary or owners or holders of beneficial interests in any such global Security) 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 such Securities if and as may be so established in respect of such Securities, and to examine the same to determine substantial compliance as to form with the express requirements thereof.

 

Section 306.          Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee or Security Registrar, the Issuer shall execute and the Trustee shall authenticate, upon receipt of a Company Order, and deliver or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and the Common Safekeeper shall effectuate in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security and, if applicable, each Guarantor shall execute any Guarantee thereon, or, in case any such mutilated Security or coupon has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security, pay such Security or coupon.

 

 37 
 

 

If there shall be delivered to the Issuer and to the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar that such Security or coupon has been acquired by a bona fide purchaser, the Issuer shall execute and upon its request the Trustee shall authenticate, upon receipt of a Company Order, and deliver or, in the case of Securities issued in global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and the Common Safekeeper shall effectuate, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security for which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.

 

Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

 

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

 

Every new Security of any series with its coupons, if any, and, if applicable, any Guarantee thereof, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Issuer and each Guarantor, as applicable, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

 

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

 

 38 
 

 

Section 307.          Payment of Interest; Interest Rights Preserved; Optional Interest Reset. (a)  Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 301, interest, if any, on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section 1002; provided, however, that each installment of interest, if any, on any Registered Security may at the Issuer’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears on the Security Register or (ii) transfer to an account maintained by the payee with a bank located in the United States.

 

Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer to an account maintained by the payee with a bank located outside the United States.

 

Any interest on any Registered Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) may be paid by the Issuer, at its election in each case, as provided in clause (1) or (2) below:

 

(1)            The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

 39 
 

 

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

 

(b)            The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Issuer on the date or dates specified on the face of such Security (each an “Optional Reset Date”). The Issuer may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Security. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether the Issuer has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity of such Security (each such period a “Subsequent Interest Period”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.

 

Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Issuer may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).

 

 40 
 

 

The Holder of any such Security will have the option to elect repayment by the Issuer of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.

 

Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 308.          Optional Extension of Stated Maturity. The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The Stated Maturity of any Security of such series may be extended at the option of the Issuer for the period or periods specified on the face of such Security (each an “Extension Period”) up to but not beyond the date set forth on the face of such Security. The Issuer may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”). If the Issuer exercises such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”) indicating (i) the election of the Issuer to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.

 

Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Issuer may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.

 

If the Issuer extends the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Issuer on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Issuer has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.

 

 41 
 

 

Section 309.          Persons Deemed Owners. Prior to due presentment of a Registered Security for registration of transfer, the Issuer, any Guarantor, if applicable, the Trustee and any agent of the Issuer, any Guarantor, if applicable, or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Issuer, any Guarantor, the Trustee or any agent of the Issuer, any Guarantor or the Trustee shall be affected by notice to the contrary.

 

Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall be affected by notice to the contrary.

 

None of the Company, the Issuer, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Issuer, the Trustee and the Securities Registrar shall be entitled to deal with any depositary (including any Depositary or Common Depositary) or Common Safekeeper, and any nominee thereof, that is the Holder of any such global Security for all purposes of this Indenture relating to such global Security (including the payment of principal, premium, if any, and interest and Additional Amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such global Security) as the sole Holder of such global Security and shall have no obligations to the beneficial owners thereof. None of the Issuer, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility or liability for any acts or omissions of any such depositary with respect to such global Security, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such global Security, for any transactions between such depositary and any participant in such depositary or between or among any such depositary, any such participant and/or any holder or owner of a beneficial interest in such global Security or for any transfers of beneficial interests in any such global Security.

 

Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Issuer or any Guarantor, the Trustee, or any agent of the Issuer, any Guarantor or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary (including any Depositary or Common Depositary), as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.

 

 42 
 

 

Section 310.          Cancellation. All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the Trustee shall be promptly cancelled by it (and, in the case of a Security issued in global form under the New Safekeeping Structure, the Paying Agent shall direct the Common Safekeeper to cancel such Security). The Company or any other Issuer may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or any other Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company or any other Issuer shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and, if requested by the Company or any other Issuer in writing, certification of their disposal delivered to the Company or such Issuer, unless by Company Order the Company or such Issuer shall timely direct that cancelled Securities be returned to it.

 

Section 311.          Computation of Interest. Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 312.          Currency and Manner of Payments in Respect of Securities. (a)  With respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.

 

 43 
 

 

(b)            It may be provided pursuant to Section 301 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee for such series of Registered Securities a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in any such Currency, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee for such series of Registered Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which an Issuer has deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has been given by an Issuer or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee for such series of Registered Securities not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee for such series of Registered Securities shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

 

(c)            Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to Issuer a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Issuer will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Issuer on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

 

(d)            If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Issuer to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.

 

 44 
 

 

(e)            Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.

 

(f)            The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

 

(g)            The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.

 

(h)            For purposes of this Section 312, the following terms shall have the following meanings:

 

A “Component Currency” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the Euro.

 

A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the Euro, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more currencies, having an aggregate Dollar equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the Euro, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.

 

 45 
 

 

Election Date” shall mean the date for any series of Registered Securities as specified pursuant to clause (15) of Section 301 by which the written election referred to in Section 312(b) above may be made.

 

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Issuer, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Issuer and the Trustee for the appropriate series of Securities of any such decision or determination.

 

In the event that the Issuer determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Issuer will immediately give written notice thereof to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date. In the event the Issuer so determines that a Conversion Event has occurred with respect to the Euro or any other currency unit in which Securities are denominated or payable, the Issuer will immediately give written notice thereof to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Issuer determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Issuer will similarly give written notice to the Trustee of the appropriate series of Securities and the Exchange Rate Agent. The Trustee of the appropriate series of Securities shall be fully justified and protected in relying and acting upon information received by it from the Issuer and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Issuer or the Exchange Rate Agent.

 

Section 313.          Appointment and Resignation of Successor Exchange Rate Agent. (a)  Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Issuer will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Issuer will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.

 

 46 
 

 

(b)            No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Issuer and the Trustee of the appropriate series of Securities.

 

(c)            If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Issuer on the same date and that are initially denominated and/or payable in the same Currency).

 

Article Four

 

SATISFACTION AND DISCHARGE

 

Section 401.          Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when

 

(1)            either

 

(A)            all Securities of such series (and any related Guarantee) theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Issuer or any Guarantor and thereafter repaid to the Issuer or such Guarantor or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

 

 47 
 

 

(B)            all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation

 

(i)            have become due and payable, or

 

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

 

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

 

and the Issuer or the Guarantor, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities (and any related Guarantee) not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)            the Issuer or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Issuer or the Guarantor; and

 

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

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 606, the obligations of the Trustee to any Authenticating Agent under Section 611 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003, the next to the last sentence of Section 1005, and the penultimate paragraph of Section 1405 shall survive.

 

Section 402.          Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or the Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. Money so held in trust (i) is not subject to Article Sixteen and (ii) is subject to the Trustee’s rights under Section 606.

 

 48 
 

 

Article Five

 

REMEDIES

 

Section 501.          Events of Default. “Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

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

 

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

 

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

 

(4)            default in the performance, or breach, of any covenant or agreement of the Company, the applicable Issuer or an applicable Guarantor in this Indenture which affects or is applicable to the Securities of that series (other than a default in the performance, or breach of a covenant or agreement which is specifically dealt with elsewhere in this Section), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the applicable Issuer and any applicable Guarantor by the Trustee or to the applicable Issuer, any applicable Guarantor and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(5)            any Guarantee of the Securities of that series ceases to be in full force and effect (other than in accordance with this Indenture, including Article 17 hereof) or is determined in a judgment to be unenforceable or invalid or any such Guarantee of Securities is asserted in writing by the applicable Issuer or the applicable Guarantor to no longer be in full force and effect and enforceable in accordance with its terms; or

 

(6)            the entry of a decree or order by a court having jurisdiction in the premises adjudging the applicable Issuer or an applicable Guarantor as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the applicable Issuer or an applicable Guarantor under the Federal Bankruptcy Code or any other applicable federal or state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the applicable Issuer or an applicable Guarantor or of any substantial part of the property of the applicable Issuer or an applicable Guarantor, or ordering the winding up or liquidation of the affairs of the applicable Issuer or an applicable Guarantor, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or

 

 49 
 

 

(7)            the institution by the applicable Issuer or the applicable Guarantor of proceedings to be adjudicated a bankrupt or insolvent, or the consent by either the applicable Issuer or an applicable Guarantor to the institution of bankruptcy or insolvency proceedings against the applicable Issuer or an applicable Guarantor, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable federal or state or foreign law, or the consent by the applicable Issuer or an applicable Guarantor, to the filing of any such petition or to the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the applicable Issuer or an applicable Guarantor or of any substantial part of either of its property, or the making by either the applicable Issuer or an applicable Guarantor of an assignment for the benefit of creditors, or the admission by either the applicable Issuer or an applicable Guarantor in writing of its inability to pay its debts generally as they become due; or

 

(8)            any other Event of Default provided pursuant to Section 301 or 901 with respect to Securities of that series.

 

No Event of Default with respect to a particular series of Securities issued under this Indenture necessarily constitutes an Event of Default with respect to any other series of Securities issued hereunder.

 

Section 502.          Acceleration of Maturity; Rescission and Annulment. If an Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501 with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Issuer and, if applicable, the Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due and payable. If an Event of Default specified in Sections 501(6) or 501(7) occurs and is continuing, then the principal amount of all the Securities then Outstanding (or, if any such Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

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

 

 50 
 

 

(1)            the Issuer or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)),

 

(A)            all overdue interest, if any, on all Outstanding Securities of that series (or of all series, as the case may be) and any related coupons,

 

(B)            all unpaid principal of (and premium, if any) any Outstanding Securities of that series (or of all series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,

 

(C)            interest on overdue interest, if any, at the rate or rates prescribed therefor in such Securities, and

 

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

 

(2)            all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

Section 503.          Collection of Indebtedness and Suits for Enforcement by Trustee. The Issuer and, if applicable, the Guarantor covenant that if

 

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

 

(2)            default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 5 Business Days,

 

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

 

 51 
 

 

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

 

Section 504.          Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Issuer or any other obligor, including any Guarantors, upon the Securities or the property of the Company or the Issuer or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or the Issuer for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

 

(i)            to file and prove a claim for the whole amount of principal (and premium, if any), or such portion of the principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

 

(ii)            to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 606.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 505.          Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.

 

 52 
 

 

Section 506.          Application of Money Collected. Any money collected by the Trustee pursuant to this Article and any money or other property distributable in respect of the Company’s, an Issuer’s or Guarantor’s obligations under this Indenture after an Event of Default shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First: To the payment of all amounts due the Trustee (including any predecessor Trustee) under Section 606;

 

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

 

Third: To the payment of the balance, if any, to the Person or Persons designated in writing by the applicable Issuer or Guarantor.

 

Section 507.          Limitation on Suits. No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

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

 

(2)            the Holders of not less than 25% in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or, in the case of any Event of Default described in clause  (6) or (7) of Section 501, the Holders of not less than 25% in principal amount of all Outstanding Securities, shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

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

 

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

 

(5)            no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or, in the case of any Event of Default described in clause (6) or (7) of Section 501, by the Holders of a majority or more in principal amount of all Outstanding Securities;

 

 53 
 

 

 

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of the same series, in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or of Holders of all Securities in the case of any Event of Default described in clause  (6) or (7) of Section 501, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Securities of the same series, in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (8) of Section 501, or of Holders of all Securities in the case of any Event of Default described in clause  (6) or (7) of Section 501.

 

Section 508.      Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable, Article Fourteen) and in such Security, of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on, such Security or payment of such coupon on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

Section 509.      Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture, the Securities or any Guarantee and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, any Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 510.      Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 511.      Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

 54 
 

 

Section 512.      Control by Holders. With respect to the Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under clause (1), (2), (3), (4), (5) or (8) of Section 501, and, with respect to all Securities, the Holders of not less than a majority in principal amount of all Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, not relating to or arising under clause (1), (2), (3), (4), (5) or (8) of Section 501, provided that in each case

 

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

 

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

 

(3)            the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting (provided, that the Trustee shall not have an affirmative duty to determine whether such direction is prejudicial to any Holder).

 

Section 513.      Waiver of Past Defaults. Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default described in clause (1), (2), (3), (4), (5) or (8) of Section 501 (or, in the case of a default described in clause (6) or (7) of Section 501, the Holders of not less than a majority in principal amount of all Outstanding Securities may waive any such past default), and its consequences, except a default

 

(1)            in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security or any related coupon, or

 

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

 

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

 

 55 
 

 

Section 514.      Waiver of Stay or Extension Laws. The Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Article Six

 

THE TRUSTEE

 

Section 601.      Notice of Defaults. Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to a Responsible Officer of the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series and any related coupons; and provided further that in the case of any Default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.

 

Section 602.      Certain Duties, Responsibilities and Rights of Trustee. Subject to the provisions of TIA Sections 315(a) through 315(d):

 

(1)            except during the continuance of an Event of Default,

 

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

 

(b)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;

 

 56 
 

 

(2)            if any Event of Default has occurred and is continuing with respect to the Securities of any series, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs;

 

(3)            the Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(a)this subparagraph (3) does not limit the effect of subparagraph (1) of this paragraph or the penultimate paragraph of this Section 602;

 

(b)the Trustee shall 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

 

(c)the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of the affected series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

 

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

 

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

 

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

 

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

 

 57 
 

 

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

 

(9)            the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer or any Guarantor, personally or by agent or attorney;

 

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

 

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

 

(12)          in the event that the Trustee is also acting as Paying Agent, Security Registrar or in any other capacity hereunder, the rights, privileges, protections, immunities and benefits afforded to the Trustee pursuant to this Article Six, including, without limitation, its right to be indemnified, shall also be afforded to the Trustee in its capacity as such Paying Agent, Security Registrar or in such other capacity;

 

(13)          the Trustee shall not be deemed to know or be charged with knowledge of any Default or Event of Default with respect to the Securities of any series for which it is acting as Trustee unless a Responsible Officer of the Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee and such notice references this Indenture and such Securities;

 

(14)          the permissive rights of the Trustee to do things enumerated in this Agreement shall not be construed as a duty;

 

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

 

 58 
 

 

(16)          the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including without limitation, any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.

 

The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 602.

 

Section 603.      Trustee Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Company, each Issuer and any Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company, each Issuer and any Guarantor are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.

 

Section 604.      May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of an Issuer or any Guarantor or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Issuer and any Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

Section 605.      Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer or any Guarantor, as the case may be, or for the investment thereof.

 

 59 
 

 

Section 606.      Compensation and Reimbursement. The Issuer and any Guarantor, jointly and severally agree:

 

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

 

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

 

(3)            to indemnify the Trustee and any predecessor trustee and its and their officers, directors, employees, and agents for, and to hold it or them harmless against, any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on its or their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses (including reasonable fees and expenses of counsel) of defending itself or themselves against any claim or liability in connection with the exercise or performance of any of its or their powers or duties hereunder.

 

The obligations of the Issuer and any Guarantor under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and the termination of this Indenture for any reason. As security for the performance of such obligations of the Issuer and any Guarantor, the Trustee shall have a claim and lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.

 

In addition to and without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(6) or (7), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the satisfaction and discharge of this Indenture, the termination of this Indenture for any reason and the earlier resignation or removal of the Trustee.

 

 60 
 

 

Section 607.      Corporate Trustee Required; Eligibility; Conflicting Interests; Disqualification. There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000. If such Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. If the Trustee shall have or acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either eliminate such conflicting interest or resign to the extent, in the manner and with the effect, and subject to the conditions, provided in the Trust Indenture Act and this Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent permitted thereby, the Trustee, in its capacity as trustee in respect of the Securities of any series, shall not be deemed to have a conflicting interest arising from its capacity as trustee in respect of the Securities of any other series. Nothing contained herein shall prevent the Trustee from filing the application provided for in the second to last sentence of Section 310(b) of the Trust Indenture Act.

 

Section 608.      Resignation and Removal; Appointment of Successor. (a)  No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609 and any and all amounts then due and owing to the Trustee hereunder have been paid in full.

 

(b)            The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company, the Issuer and the Guarantor, as applicable. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, or if the Trustee is removed as hereinafter provided, the resigning or removed Trustee may petition, at the reasonable expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(c)            The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuer and the Guarantor, as applicable.

 

(d)            If at any time:

 

(1)            the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(2)            the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

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

 

 61 
 

 

then, in any such case, (i) each Issuer, by a Board Resolution or pursuant to an Officer’s Certificate, may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

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

 

(f)            The applicable Issuers shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to the Holders of Securities of such series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

Section 609.      Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the each Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of an Issuer or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim and lien provided for in Section 606.

 

 62 
 

 

(a)            In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the applicable Issuer, the applicable Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of an Issuer or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject nevertheless to its claim and lien provided for in Section 606. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.

 

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

 

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

 

Section 610.      Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all of the smallest unit of the corporate trust business of the Trustee which includes the activities of the Trustee relating to this Indenture shall be the successor of the Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

 

 63 
 

 

Section 611.      Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series and the Trustee shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the applicable Issuer. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the applicable Issuer and shall at all times be a corporation organized and doing business and in good standing under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.

 

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

 

 64 
 

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the applicable Issuer. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the applicable Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the applicable Issuer and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.

 

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

 

Dated: ____________________

 

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

 

  U.S. Bank Trust Company, National Association,
   
  as Trustee
   
   
  By:
  as Authenticating Agent
   
  By:
  Authorized Officer

 

Article Seven

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

Section 701.      Disclosure of Names and Addresses of Holders. Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company or any other Issuer, the Guarantor, if applicable, and the Trustee that none of the Company or any other Issuer, the Guarantor, if applicable, or the Trustee or any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).

 

 65 
 

 

Section 702.      Reports by Trustee. Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as of such May 15 if required by TIA Section 313(a). The Issuer will promptly notify the Trustee when Securities are listed on any stock exchange and of any delisting thereof.

 

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange if any, upon which the Securities are listed and with the Issuer.

 

Section 703.      Reports by Company. The Company shall:

 

(1)            file with the Trustee, within 15 days after the Company has filed the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is no longer required to file information, documents or reports pursuant to either of such Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

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

 

(3)            transmit to all Holders, in the manner and to the extent provided in TIA Section 313(c), within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

 

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

 

 66 
 

 

Article Eight

 

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 801.      Company and Issuer May Consolidate, etc., Only on Certain Terms. (a) The Company shall not consolidate with or merge into any other Person or transfer all or substantially all of its property and assets as an entirety to any Person, unless:

 

(1)            either the Company shall be the continuing Person, or the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which all or substantially all of the properties and assets of the Company, as an entirety are transferred is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia that expressly assumes all of the obligations of the Company, including any Guarantee obligations, under each series of Securities and this Indenture with respect to each such series by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the Guarantee obligations and the performance of every covenant of this Indenture on the part of the Company, to be performed or observed;

 

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

 

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

 

(b) The Issuer shall not consolidate with or merge into any other Person or transfer all or substantially all of its property and assets as an entirety to any Person, unless:

 

(1)            either the Issuer shall be the continuing Person, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the properties and assets of the Issuer, as an entirety are transferred is either the Company or a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia or any member country of the European Union that expressly assumes all of the obligations of the Issuer under each series of Securities and this Indenture with respect to each such series by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Issuer, to be performed or observed;

 

 67 
 

 

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

 

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

 

Notwithstanding the foregoing, any Subsidiary may consolidate with, merge with or into or transfer all or part of its properties and assets to the Company, or any other Subsidiary or Subsidiaries.

 

Section 802.      Successor Person Substituted. Upon any consolidation by the Company or the Issuer, as applicable, with or merger by the Company or the Issuer, as applicable, with or into any other Person or any conveyance, transfer or lease of the properties and assets of the Company or the Issuer, as applicable, as an entirety or substantially as an entirety to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company or the Issuer, as applicable, is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, and be subject to every obligation of, the Company or the Issuer, as applicable, under this Indenture with the same effect as if such successor Person had been named as the Company or the Issuer, as applicable, herein, and in the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 801) or the Issuer (which term shall for this purpose mean the Person named as the “Issuer” with respect to the relevant series of Securities or any successor Person which shall theretofore become such in the manner described in Section 801), as applicable, except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and related Guarantees, as applicable, and the coupons and may be dissolved and liquidated.

 

Article Nine

 

SUPPLEMENTAL INDENTURES

 

Section 901.      Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, each applicable Issuer and each applicable Guarantor, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto for any of the following purposes:

 

(1)            to evidence the succession of another Person to the Company, an Issuer or a Guarantor and the assumption by any such successor of the covenants of the Company, such Issuer or such Guarantor contained herein and in the Securities; or

 

 68 
 

 

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

 

(3)            to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or

 

(4)            to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or

 

(5)            to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

 

(6)            to secure the Guarantees pursuant to the requirements of Section 1009 or otherwise or any Guarantee; or

 

(7)            to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

 

(8)            to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609(b); or

 

(9)            to close this Indenture with respect to the authentication and delivery of additional series of Securities; or

 

(10)          to cure any ambiguity, defect or inconsistency; or

 

(11)          to make any change that does not adversely affect the rights of any Holder, as certified to in an Officer’s Certificate; or

 

(12)          to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or

 

 69 
 

 

(13)          to add any Person as a party to this Indenture as an Issuer or a Guarantor for purposes of any one or more series of Securities; or

 

(14)          to release any Guarantor from its Guarantee and its obligations under this Indenture in accordance with the terms of this Indenture; or

 

(15)          to make the Securities of any series eligible for any asset purchase or similar program as part of monetary policy measures implemented by any central bank or similar institution.

 

Any supplemental indenture pursuant to clause (13) of this Section 901 may be substantially in the form set forth in Exhibit B.

 

Section 902.      Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company, the applicable Issuer, any applicable Guarantor and the Trustee, the Company, the applicable Issuer and any applicable Guarantor when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series (and any related Guarantees) under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

(1)            change the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of an Issuer to pay Additional Amounts contemplated by Section 1005 (except as contemplated by Section 801 and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or

 

 70 
 

 

(2)            reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, for any waiver of compliance with certain provisions of this Indenture which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with respect to Securities of such series, or

 

(3)            release any Guarantor from its obligation in respect of the Guarantee of such series of Securities affected or modify the Guarantee of such series of Securities affected in any manner materially adverse to Holders of Securities of such series; or

 

(4)            modify any of the provisions of this Section, Section 513 or Section 1010, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.

 

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

 

Section 903.      Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. A Guarantor shall not be required to be a party to a supplemental indenture except to the extent such supplemental indenture relates to such Guarantor's obligations.

 

Section 904.      Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

Section 905.      Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

Section 906.      Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If an Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and such Issuer, to any such supplemental indenture may be prepared and executed by such Issuer and any Guarantee thereon executed by the applicable Guarantor and authenticated and delivered by the Trustee or, in the case of new Securities in global form under the New Safekeeping Structure, authenticated and delivered by the Security Registrar and effectuated by the Common Safekeeper in exchange for Outstanding Securities of such series.

 

 71 
 

 

Section 907.      Notice of Supplemental Indentures. Promptly after the execution by the Company, an Issuer and/or any Guarantor, as applicable, and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Issuer shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.

 

Section 908.      Effect on Senior Indebtedness. No supplemental indenture shall adversely affect the rights of any holder of Senior Indebtedness under Article Sixteen without the consent of such holder.

 

Article Ten

 

COVENANTS

 

Section 1001.      Payment of Principal, Premium, if any, and Interest. Each Issuer covenants and agrees for the benefit of the Holders of each series of Securities for which it is the Issuer and any related coupons that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. The performance by the applicable Guarantor of the obligations of the applicable Issuer under this Section 1001 shall be deemed to constitute performance thereof by such Issuer. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.

 

Section 1002.      Maintenance of Office or Agency. If the Securities of a series are issuable only as Registered Securities, the Issuer thereof will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon such Issuer in respect of the Securities of that series and this Indenture may be served.

 

If Securities of a series are issuable as Bearer Securities, the Issuer thereof will maintain (A) in The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, where notices and demands to or upon the Issuer thereof in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise) (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that, if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Issuer thereof will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are convertible and exchangeable may be surrendered for conversion or exchange, as applicable and where notices and demands to or upon such Issuer in respect of the Securities of that series and this Indenture may be served.

 

 72 
 

 

 

The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, in London, and the Issuer hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.

 

Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal, premium, if any, or interest, if any, on Bearer Securities shall be made at any office or agency of the Issuer in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that, if the Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security shall be made at the office of the Issuer ’s Paying Agent in The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for such purpose by the Issuer in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

 

Each Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, each Issuer hereby designates as a Place of Payment for each series of Securities the office or agency of the Trustee in the Borough of Manhattan, The City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.

 

 73 
 

 

Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then each Issuer will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.

 

Section 1003.         Money for Securities Payments to Be Held in Trust. If an Issuer or Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

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

 

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

 

(1)            hold all sums held by it for the payment of the principal of (and premium, if any) and interest, if any, on Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

(2)            give the Trustee notice of any default by the Issuer (or any other obligor upon the Securities of such series) in the making of any payment of principal of (or premium, if any) or interest, if any, on the Securities of such series; and

 

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

 

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

 

 74 
 

 

Except as provided in the Securities of any series, and subject to any applicable abandoned property laws, any money deposited with the Trustee or any Paying Agent, or then held by the Company or any other Issuer or a Guarantor, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company or any other Issuer or a Guarantor on Company Request, or (if then held by the Company or any other Issuer or a Guarantor) shall be discharged from such trust; and the Holder of such Security or coupon shall thereafter, as an unsecured general creditor, look only to the Company, or any other Issuer, as applicable, for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company or any other Issuer, as applicable, as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company or the Issuer cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or any other Issuer, as applicable.

 

Section 1004.         Statement as to Compliance. The Company, each Issuer and each Guarantor, will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s, such Issuer’s or such Guarantor’s, as applicable, compliance with all conditions and covenants under this Indenture. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

 

Section 1005.         Additional Amounts. If any Securities of a series provide for the payment of additional amounts to any Holder in respect of any tax, assessment or governmental charge (“Additional Amounts”), the Issuer will pay to the Holder of any Security of such series or any coupon appertaining thereto such Additional Amounts as may be specified as contemplated by Section 301. Whenever in this Indenture there is mentioned, in any context, the payment of the principal (or premium, if any) or interest, if any, on, or in respect of, any Security of a series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of a series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for by the terms of such series established pursuant to Section 301 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

 75 
 

 

Except as otherwise specified as contemplated by Section 301, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal (and premium, if any) is made), and at least 10 days prior to each date of payment of principal (or premium, if any) or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Issuer will furnish the Trustee and the Issuer’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal, premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of the series. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities of that series or related coupons and the Issuer will pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. In the event that the Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned certificate, then the Trustee or such Paying Agent shall be entitled to (i) assume that no such withholding or deduction is required with respect to any payment of principal of (or premium, if any) or interest, if any, on any Securities of a series or related coupons until it shall have received a certificate advising otherwise and (ii) to make all payments of principal of (and premium, if any) and interest, if any, on the Securities of a series or related coupons without withholding or deductions until otherwise advised. The Company and the Guarantors jointly and severally covenant to indemnify the Trustee, any Paying Agent, and their respective officers, directors, employees, and agents for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section. The provisions of the immediately preceding sentence shall survive the termination of this Indenture and the earlier resignation or removal of the Trustee.

 

Section 1006.         Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon any Principal Property of the Company; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

 

Section 1007.         Maintenance of Principal Properties. The Company will cause all Principal Properties to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent or restrict the sale, abandonment or other disposition of any of such Principal Properties if such action is, in the judgment of the Company, desirable in the conduct of the business (financial or otherwise) of the Company and its Subsidiaries as a whole and not disadvantageous in any material respect to the Holders.

 

 76 
 

 

Section 1008.         Corporate Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Company; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole. Each Issuer and, subject to Article Seventeen, each Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

 

Section 1009.         Limitation on Liens. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for:

 

(a)           Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of the Company or its Subsidiaries, as the case may be, in conformity with GAAP;

 

(b)           carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;

 

(c)           pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;

 

(d)           deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

 

(e)           easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;

 

(f)            Liens in existence on the date of the first issuance of Securities of such series issued pursuant to this Indenture; provided that no such Lien is spread to cover any additional property after such date and that the amount of Debt secured thereby is not increased;

 

(g)           Liens securing Debt of the Company and its Subsidiaries incurred to finance the acquisition of fixed or capital assets; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Debt and (iii) the amount of Debt secured thereby is not increased;

 

 77 
 

 

(h)           Liens on the property or assets of a corporation which becomes a Subsidiary after the date hereof; provided that (i) such Liens existed at the time such corporation became a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to cover any property or assets or such corporation after the time such corporation becomes a Subsidiary, and (iii) the amount of Debt secured thereby is not increased;

 

(i)            Liens pursuant to any Receivables Transaction in an aggregate principal amount not to exceeding 20% of Consolidated Tangible Assets; and

 

(j)            Liens (not otherwise permitted hereunder) (i) which secure obligations not exceeding (as to the Company and all Subsidiaries) the greater of (x) $250,000,000 or (y) 20% of Consolidated Tangible Assets, in each case in aggregate amount at any time outstanding or (ii) with respect to which the Company effectively provides that the Securities Outstanding hereunder are secured equally and ratably with (or, at the option of the Company, prior to) the Debt secured by such Lien.

 

Section 1010.         Waiver of Certain Covenants. The Company, the applicable Issuer or any applicable Guarantor may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Sections 1006 to 1010, inclusive, or, as specified pursuant to Section 301(16) for Securities of such series, in any covenants of the Company, the applicable Issuer or any applicable Guarantor, as applicable, added to Article Ten pursuant to Section 301(16) or Section 301(17) in connection with Securities of such series, if the Holders of at least a majority in principal amount of all Outstanding Securities affected by such term, provision or condition, by Act of such Holders, waive such compliance in such instance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company, the applicable Issuer or any applicable Guarantor and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.

 

Article Eleven

 

REDEMPTION OF SECURITIES

 

Section 1101.         Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

 

Section 1102.         Election to Redeem; Notice to Trustee. The election of the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Issuer, the Issuer shall, at least 15 days prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

 

 78 
 

 

Section 1103.         Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by lot or in the case of Securities in global form, pursuant to applicable Depositary procedures; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.

 

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

 

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

 

Section 1104.         Notice of Redemption. Except as otherwise specified as contemplated by Section 301 for Securities of any series, notice of redemption shall be given in the manner provided for in Section 106 not less than 15 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed.

 

Except as otherwise specified as contemplated by Section 301 for Securities of any series, all notices of redemption shall state:

 

(1)            the Redemption Date;

 

(2)            the Redemption Price (if known) or the formula pursuant to which the Redemption Price is to be determined if the Redemption Price cannot be determined at the time the notice is given;

 

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

 

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

 

(5)            that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;

 

 79 
 

 

(6)            the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any;

 

(7)            that the redemption is for a sinking fund, if such is the case;

 

(8)            that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price unless security or indemnity satisfactory to the Issuer, the Trustee and any Paying Agent is furnished;

 

(9)            if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Issuer, on which such exchanges may be made;

 

(10)          the CUSIP, ISIN or other similar numbers, if any, assigned to such Securities; provided, however, that such notice may state that no representation is made as to the correctness of CUSIP, ISIN or other similar numbers, in which case none of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall have any liability in respect of the use of any CUSIP, ISIN or other similar number or numbers on such notices, and the redemption of such Securities shall not be affected by any defect in or omission of such numbers;

 

(11)          the Euroclear or the Clearstream reference numbers of such Security, if any; and

 

(12)          such other matters as the Issuer shall deem desirable or appropriate.

 

Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer (or the Paying Agent if the Trustee is not acting as Paying Agent with respect to Securities issued in global form under the New Safekeeping Structure).

 

Section 1105.         Deposit of Redemption Price. On or prior to any Redemption Date, the Issuer or the Guarantor shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or the Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.

 

 80 
 

 

Section 1106.         Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Issuer and the Guarantor shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest; and provided further that installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.

 

If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Issuer and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

 

Section 1107.         Securities Redeemed in Part. Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute and the Guarantor shall execute any Guarantee thereof (if applicable), and the Trustee shall authenticate and deliver or, in the case such Security is global form under the New Safekeeping Structure, the Security Registrar shall authenticate and deliver and shall instruct the Common Safekeeper to effectuate such new Security and such Security shall have been effectuated by the Common Safekeeper to reflect such redemption to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

 81 
 

 

Section 1108.         Optional Redemption Due to Changes in Tax Treatment. Each series of Securities may be redeemed at the option of the Issuer (or their successors) in whole but not in part at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Issuer is or would be required to pay Additional Amounts as a result of (i) any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of the United States or the Netherlands, as the case may be (or in the case of a successor Person to the Issuer, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein), or (ii) any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which the United States or the Netherlands, as the case may be (or such other jurisdiction or political subdivision or taxing authority), is a party, which change, execution or amendment becomes effective on or after the date of issuance of such series pursuant to Section 301 (or in the case of a successor Person to the Issuer, the date on which such successor Person became such). Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, the Issuer will deliver to the Trustee an Officer’s Certificate, stating that the Issuer is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of the Issuer to redeem such Securities pursuant to this Section have been satisfied.

 

Article Twelve

 

SINKING FUNDS

 

Section 1201.         Applicability of Article. Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

 

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

 82 
 

 

Section 1202.         Satisfaction of Sinking Fund Payments with Securities. Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Issuer may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Issuer, together, in the case of any Bearer Securities of such series, with all unmatured coupons appertaining thereto, and/or (2) receive credit for the principal amount of Securities of such series which have been previously delivered to the Trustee by the Issuer or for Securities of such series which have been redeemed either at the election of the Issuer pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

 

Section 1203.         Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Issuer will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to Section 1202 (which Securities will, if not previously delivered, accompany such certificate) and whether the Issuer intends to exercise its right to make a permitted optional sinking fund payment with respect to such series. Such certificate shall be irrevocable and upon its delivery the Issuer shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Issuer to deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 1202 and without the right to make any optional sinking fund payment, if any, with respect to such series.

 

Not more than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

 

Prior to any sinking fund payment date, the Issuer shall pay to the Trustee or a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) in cash a sum equal to the principal (and premium, if any) and any interest that will accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 1203.

 

 83 
 

 

Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking fund payment date, together with any unused balance of any preceding sinking fund payment or payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested by the Issuer, shall not give the next succeeding notice of the redemption of Securities of such series through the operation of the sinking fund. Any such unused balance of moneys deposited in such sinking fund shall be added to the sinking fund payment for such series to be made in cash on the next succeeding sinking fund payment date or, at the request of the Issuer, shall be applied at any time or from time to time to the purchase of Securities of such series, by public or private purchase, in the open market or otherwise, at a purchase price for such Securities (excluding accrued interest and brokerage commissions, for which the Trustee or any Paying Agent will be reimbursed by the Issuer ) not in excess of the principal amount thereof.

 

Article Thirteen

 

REPAYMENT AT OPTION OF HOLDERS

 

Section 1301.         Applicability of Article. Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.

 

Section 1302.         Repayment of Securities. Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Issuer covenants that on or before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date.

 

Section 1303.         Exercise of Option. Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Issuer at the Place of Payment therefor specified in the terms of such Security (or at such other place or places or which the Issuer shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Issuer.

 

 84 
 

 

Section 1304.         When Securities Presented for Repayment Become Due and Payable. If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Issuer on the Repayment Date therein specified, and on and after such Repayment Date (unless the Issuer shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Issuer, together with accrued interest, if any, to the Repayment Date; provided, however, that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such coupons; and provided further that, in the case of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.

 

If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Issuer and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.

 

If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.

 

 85 
 

 

Section 1305.         Securities Repaid in Part. Upon surrender of any Registered Security which is to be repaid in part only, the Issuer shall execute and the Trustee shall authenticate and deliver or, in the case of Securit