Large accelerated filer | x | Accelerated filer | o | ||
Non-accelerated filer | o | (Do not check if a smaller reporting company) | Smaller reporting company | o | |
Emerging growth company | o |
Title of Each Class of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Unit (1) | Proposed Maximum Aggregate Offering Price (1) | Amount of Registration Fee (2) | ||||
Common Stock, par value $.01 per share | ||||||||
Preferred Stock, par value $.01 per share | ||||||||
Depositary Shares | ||||||||
Warrants or Other Rights | ||||||||
Stock Purchase Contracts | ||||||||
Debt Securities | ||||||||
Units | ||||||||
Total: |
(1) | The securities covered by this registration statement may be sold or otherwise distributed separately or together as units with any other securities covered by this registration statement. |
(2) | An indeterminate amount of securities are being registered as may from time to time be sold at indeterminate prices. In accordance with Rules 456(b) and 457(r) under the Securities Act, Independent Bank Corp. hereby defers payment of the registration fee required in connection with this registration statement. In connection with the securities offered hereby, Independent Bank Corp.will pay “pay-as-you-go” registration fees in accordance with Rule 456(b). |
PAGE | |
• | Annual Report on Form 10-K for the year ended December 31, 2017, filed with the SEC on February 27, 2018; |
• | Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018 filed with the SEC on May 3, 2018, and June 30, 2018, filed with the SEC on August 2, 2018; |
• | Current Reports on Form 8-K and amendments thereto filed with the SEC on January 2, 2018, January 5, 2018, March 15, 2018, April 19, 2018, May 22, 2018, May 29, 2018, May 31, 2018 and June 21, 2018 (except, with respect to each of the foregoing, for portions of such reports which were deemed to be furnished and not filed); and |
• | The description of our common stock contained in our registration statement on Form 8-A, filed with the SEC on January 21, 1986, including any amendment or report filed for the purpose of updating such description. |
• | increasing our regulatory capital levels; |
• | refinancing, reduction or repayment of debt; |
• | investments in Rockland Trust Company and our other subsidiaries as regulatory capital; |
• | financing of possible acquisitions; and |
• | expansion of the business. |
• | earnings consist of income before income taxes plus fixed charges; |
• | fixed charges, excluding interest on deposits, include interest expense (other than on deposits) and the estimated portion of rental expense attributable to interest, net of income from subleases; and |
• | fixed charges, including interest on deposits, include all interest expense and the estimated portion of rental expense attributable to interest, net of income from subleases. |
Six Months Ended June 30, 2018 | Years ended December 31, | ||||||||||||||||
2017 | 2016 | 2015 | 2014 | 2013 | |||||||||||||
Ratio of Earnings to Fixed Charges | |||||||||||||||||
Including interest on deposits | 7.05 | 7.62 | 6.39 | 5.11 | 4.78 | 3.64 | |||||||||||
Excluding interest on deposits | 20.45 | 18.65 | 12.63 | 9.51 | 8.55 | 5.57 |
Registration Statement filing fee | $(1)(2) |
Printing expenses | $(2) |
Legal fees and expenses | $(2) |
Accounting fees and expenses | $(2) |
Miscellaneous | $(2) |
Total | $(2) |
(1) | Under Rules 456(b) and 457(r) under the Securities Act, the registration fee will be paid at the time of any particular offering of securities under this registration statement. |
(2) | The amount of these fees and expenses is not currently determinable. |
1* | Form of Underwriting Agreement or Purchase Agreement. | |
3.1 | Restated Articles of Organization of Independent Bank Corp. (incorporated by reference to Exhibit 3.2 to Independent’s Current Report on Form 8-K filed with the SEC on July 20, 2015). | |
3.2 | Amended and Restated Bylaws of Independent Bank Corp. (incorporated by reference to Exhibit 3.1 to Independent’s Current Report on Form 8-K filed with the SEC on October 23, 2017). | |
4.1 | Specimen certificate for shares of Common Stock, $0.01 par value per share, of Independent Bank Corp. (incorporated by reference to Independent Bank Corp.’s Annual Report on Form 10-K for the year ended December 31, 1992) (SEC File No. 001-09047). | |
4.2* | Form of Senior Debt Security. | |
4.3* | Form of Subordinated Debt Security. | |
4.4* | Form of Depositary Receipt. | |
4.5* | Form of Warrant Certificate. | |
4.6* | Form of Unit Certificate. | |
4.7* | Form of Certificate of Designation of Preferred Stock. | |
4.8 | ||
4.9 | ||
4.10* | Form of Deposit Agreement for Depositary Shares. | |
4.11* | Form of Warrant Agreement. | |
4.12* | Form of Unit Agreement. | |
4.13* | Form of Preferred Stock Certificate. | |
5 | ||
12 | ||
23.1 | ||
23.2 | Consent of Day Pitney LLP (included as part of Exhibit 5). | |
24 | Power of Attorney (included on signature page). | |
25.1** | Statement of Eligibility of Trustee on Form T-1 of Trustee under the Senior Debt Indenture. | |
25.2** | Statement of Eligibility of Trustee on Form T-1 of Trustee under the Subordinated Debt Indenture. |
* | To be filed by post-effective amendment to this registration statement or as an exhibit to a current report of the registrant on Form 8-K and incorporated herein by reference. |
** | To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939. |
(a) | The undersigned registrant undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in this registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415 (a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the Securities, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering. |
(d) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
(e) | The undersigned registrant undertakes that: |
(i) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(ii) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(f) | The undersigned registrant undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act. |
INDEPENDENT BANK CORP. | ||
By: | /s/ Edward H. Seksay | |
Edward H. Seksay, Esq. | ||
General Counsel |
Signature | Title | Date |
/s/ Christopher Oddleifson | Director CEO/President | August 16, 2018 |
Christopher Oddleifson | (Principal Executive Officer) | |
/s/ Donna L. Abelli | Director and Chairman of the Board | August 16, 2018 |
Donna L. Abelli | ||
/s/ Robert D. Cozzone | CFO (Principal Financial Officer) | August 16, 2018 |
Robert D. Cozzone | ||
/s/ Mark Ruggiero | Controller | August 16, 2018 |
Mark Ruggiero | (Principal Accounting Officer) | |
/s/ Michael P. Hogan | Director | August 16, 2018 |
Michael P. Hogan | ||
/s/ Kevin J. Jones | Director | August 16, 2018 |
Kevin J. Jones | ||
/s/ Mary L. Lentz | Director | August 16, 2018 |
Mary L. Lentz | ||
/s/ Eileen C. Miskell | Director | August 16, 2018 |
Eileen C. Miskell | ||
/s/ John J. Morrissey | Director | August 16, 2018 |
John J. Morrissey | ||
/s/ Gerard F. Nadeau | Director | August 16, 2018 |
Gerard F. Nadeau | ||
/s/ Daniel F. O'Brien | Director | August 16, 2018 |
Daniel F. O’Brien | ||
/s/ Carl Ribeiro | Director | August 16, 2018 |
Carl Ribeiro | ||
/s/ John H. Spurr, Jr. | Director | August 16, 2018 |
John H. Spurr, Jr. | ||
/s/ Frederick Taw | Director | August 16, 2018 |
Frederick Taw | ||
/s/ Brian S. Tedeschi | Director | August 16, 2018 |
Brian S. Tedeschi | ||
/s/ Thomas R. Venables | Director | August 16, 2018 |
Thomas R. Venables |
1* | Form of Underwriting Agreement or Purchase Agreement. | |
3.1 | Restated Articles of Organization of Independent Bank Corp. (incorporated by reference to Exhibit 3.2 to Independent’s Current Report on Form 8-K filed with the SEC on July 20, 2015). | |
3.2 | Amended and Restated Bylaws of Independent Bank Corp. (incorporated by reference to Exhibit 3.1 to Independent’s Current Report on Form 8-K filed with the SEC on October 23, 2017). | |
4.1 | Specimen certificate for shares of Common Stock, $0.01 par value per share, of Independent Bank Corp. (incorporated by reference to Independent Bank Corp.’s Annual Report on Form 10-K for the year ended December 31, 1992) (SEC File No. 001-09047). | |
4.2* | Form of Senior Debt Security. | |
4.3* | Form of Subordinated Debt Security. | |
4.4* | Form of Depositary Receipt. | |
4.5* | Form of Warrant Certificate. | |
4.6* | Form of Unit Certificate. | |
4.7* | Form of Certificate of Designation of Preferred Stock. | |
4.8 | Form of Senior Debt Indenture. | |
4.9 | Form of Subordinated Debt Indenture. | |
4.10* | Form of Deposit Agreement for Depositary Shares. | |
4.11* | Form of Warrant Agreement. | |
4.12* | Form of Unit Agreement. | |
4.13* | Form of Preferred Stock Certificate. | |
5 | Opinion of Day Pitney LLP regarding the legality of the securities being registered. | |
12 | Computation of Ratios of Earnings to Fixed Charges. | |
23.1 | Consent of Ernst & Young LLP, an independent registered public accounting firm. | |
23.2 | Consent of Day Pitney LLP (included as part of Exhibit 5). | |
24 | Power of Attorney (included on signature page). | |
25.1** | Statement of Eligibility of Trustee on Form T-1 of Trustee under the Senior Debt Indenture. | |
25.2** | Statement of Eligibility of Trustee on Form T-1 of Trustee under the Subordinated Debt Indenture. |
* | To be filed by post-effective amendment to this registration statement or as an exhibit to a current report of the registrant on Form 8-K and incorporated herein by reference. |
** | To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939. |
TABLE OF CONTENTS | |||
ARTICLE I | Definitions And Other Provisions Of General Application | 1 | |
Section 1.1. | Definitions | 1 | |
Section 1.2. | Compliance Certificates and Opinions | 7 | |
Section 1.3. | Form of Documents Delivered to Trustee | 8 | |
Section 1.4. | Acts of Holders; Record Dates | 8 | |
Section 1.5. | Notices, Etc. to Trustee and Company | 10 | |
Section 1.6. | Notice to Holders; Waiver | 11 | |
Section 1.7. | Conflict with Trust Indenture Act | 11 | |
Section 1.8. | Effect of Headings and Table of Contents | 12 | |
Section 1.9. | Successors and Assigns | 12 | |
Section 1.10. | Separability Clause | 12 | |
Section 1.11. | Benefits of Indenture | 12 | |
Section 1.12. | Governing Law; Waiver of Jury Trial; Consent to Jurisdiction | 12 | |
Section 1.13. | Legal Holidays | 13 | |
ARTICLE II | Security Forms | 13 | |
Section 2.1. | Forms Generally | 13 | |
Section 2.2. | Form of Legend of Global Securities | 14 | |
Section 2.3. | Form of Trustee's Certification Authentication | 14 | |
ARTICLE III | The Securities | 14 | |
Section 3.1. | Amount Unlimited; Issuable in Series | 14 | |
Section 3.2. | Denominations | 17 | |
Section 3.3. | Execution, Authentication, Delivery and Dating | 18 | |
Section 3.4. | Temporary Securities | 20 | |
Section 3.5. | Registration, Registration of Transfer and Exchange | 20 | |
Section 3.6. | Mutilated, Destroyed, Lost, and Stolen Securities | 22 | |
Section 3.7. | Payment of Interest; Interest Rights Preserved | 23 | |
Section 3.8. | Persons Deemed Owners | 24 | |
Section 3.9. | Cancellation | 25 | |
Section 3.10. | Computation of Interest | 26 | |
Section 3.11. | CUSIP Numbers | 26 | |
ARTICLE IV | Satisfaction and Discharge | 26 | |
Section 4.1. | Satisfaction and Discharge of Indenture | 26 | |
Section 4.2. | Application of Trust Money | 28 | |
ARTICLE V | Remedies | 28 | |
Section 5.1. | Events of Default | 28 | |
Section 5.2. | Acceleration of Maturity; Rescission and Annulment | 29 | |
Section 5.3. | Collection of Indebtedness and Suits for Enforcement by Trustee | 30 | |
Section 5.4. | Trustee May File Proofs of Claim | 31 | |
Section 5.5. | Trustee May Enforce Claims Without Possession of Securities | 32 | |
Section 5.6. | Application of Money Collected | 32 | |
Section 5.7. | Limitation on Suits | 32 |
Section 5.8. | Unconditional Right of Holders to Receive Principal, Premium, and Interest | 33 | |
Section 5.9. | Restoration of Rights and Remedies | 33 | |
Section 5.10. | Rights and Remedies Cumulative | 34 | |
Section 5.11. | Delay or Omission Not Waiver | 34 | |
Section 5.12. | Control by Holders | 34 | |
Section 5.13. | Waiver of Past Defaults | 34 | |
Section 5.14. | Undertaking for Costs | 35 | |
ARTICLE V | The Trustee | 35 | |
Section 6.1. | Certain Duties and Responsibilities | 35 | |
Section 6.2. | Notice of Defaults | 36 | |
Section 6.3. | Certain Rights of Trustee | 37 | |
Section 6.4. | Not Responsible for Recitals or Issuance of Securities | 39 | |
Section 6.5. | May Hold Securities | 39 | |
Section 6.6. | Money Hold in Trust | 39 | |
Section 6.7. | Compensation and Reimbursement | 40 | |
Section 6.8. | Disqualification; Conflicting Interests | 41 | |
Section 6.9. | Corporate Trustee Required; Eligibility | 41 | |
Section 6.10. | Resignation and Removal; Appointment of Successor | 41 | |
Section 6.11. | Acceptance of Appointment by Successor | 43 | |
Section 6.12. | Merger, Conversion, Consolidation, or Succession to Business | 44 | |
Section 6.13. | Preferential Collection of Claims Against Company | 45 | |
Section 6.14. | Appointment of Authenticating Agent | 45 | |
ARTICLE VII | Holder's Lists and Reports by Trustee and Company | 47 | |
Section 7.1. | Company to Furnish Trustee Names and Addresses of Holders | 47 | |
Section 7.2. | Preservation of Information; Communications to Holders | 47 | |
Section 7.3. | Reports by Trustee | 48 | |
Section 7.4. | Reports by Company | 48 | |
ARTICLE VIII | Consolidation, Merger, Conveyance, Transfer or Lease | 49 | |
Section 8.1. | Company May Consolidate, Etc., Only on Certain Terms | 49 | |
Section 8.2. | Successor Substituted | 49 | |
ARTICLE IX | Supplemental Indentures | 50 | |
Section 9.1. | Supplemental Indentures Without Consent of Holders | 50 | |
Section 9.2. | Supplemental Indentures With Consent of Holders | 51 | |
Section 9.3. | Execution of Supplemental Indentures | 52 | |
Section 9.4. | Effect of Supplemental Indentures | 52 | |
Section 9.5. | Conformity With Trust Indenture Act | 53 | |
Section 9.6. | Reference in Securities to Supplemental Indentures | 53 | |
Section 9.7. | Notice of Supplemental Indentures | 53 | |
ARTICLE X | Covenants | 53 | |
Section 10.1. | Payment of Principal, Premium, and Interest | 53 | |
Section 10.2. | Maintenance of Office or Agency | 53 | |
Section 10.3. | Money for Securities Payments to Be Held in Trust | 54 |
Section 10.4. | Statement by Officers as to Default | 55 | |
Section 10.5. | Existence | 55 | |
Section 10.6. | Maintenance of Properties | 55 | |
Section 10.7. | Payment of Taxes and Other Claims | 56 | |
Section 10.8. | Waiver of Certain Covenants | 56 | |
Section 10.9. | Calculation of Original Issue Discount | 56 | |
Section 10.10. | Tax Payment and Tax Withholding Obligations | 57 | |
ARTICLE XI | Redemption of Securities | 57 | |
Section 11.1. | Applicability of Article | 57 | |
Section 11.2. | Election to Redeem; Notice to Trustee | 57 | |
Section 11.3. | Selection by Trustee of Securities to Be Redeemed | 58 | |
Section 11.4. | Notice of Redemption | 58 | |
Section 11.5. | Deposit of Redemption Price | 59 | |
Section 11.6. | Securities Payable on Redemption Date | 60 | |
Section 11.7. | Securities Redeemed in Part | 60 | |
ARTICLE XII | Sinking Funds | 60 | |
Section 12.1. | Applicability of Article | 60 | |
Section 12.2. | Satisfaction of Sinking Fund Payments with Securities | 61 | |
Section 12.3. | Redemption of Securities for Sinking Fund | 61 | |
ARTICLE XIII | Defeasance and Covenant Defeasance | 62 | |
Section 13.1. | Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance | 62 | |
Section 13.2. | Defeasance and Discharge | 62 | |
Section 13.3. | Covenant Defeasance | 63 | |
Section 13.4. | Conditions to Defeasance or Covenant Defeasance | 63 | |
Section 13.5. | Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 65 | |
Section 13.6. | Reinstatement | 66 |
Trust Indenture Act Section | Indenture Section | |||||||
§310 | (a)(1) | 6.9 | ||||||
(a)(2) | 6.9 | |||||||
(a)(3) | Not Applicable | |||||||
(a)(4) | Not Applicable | |||||||
(b) | 6.8 | |||||||
6.10 | ||||||||
§311 | (a) | 6.13 | ||||||
(b) | 6.13 | |||||||
§312 | (a) | 7.1 | ||||||
(b) | 7.2(a) | |||||||
(c) | 7.2(b) | |||||||
§313 | (a) | 7.3(a) | ||||||
(b) | 7.3(a) | |||||||
(c) | 7.3(a) | |||||||
(d) | 7.3(b) | |||||||
§314 | (a) | 7.4 | ||||||
(a)(4) | 1.2 | |||||||
10.4 | ||||||||
(b) | Not Applicable | |||||||
(c)(1) | 1.2 | |||||||
(c)(2) | 1.2 |
1 |
(c)(3) | Not Applicable | |||||||
(d) | Not Applicable | |||||||
(e) | 1.2 | |||||||
§315 | (a) | 6.1 | ||||||
(b) | 6.2 | |||||||
(c) | 6.1 | |||||||
(d) | 6.1 | |||||||
(d)(1) | 6.1 | |||||||
(d)(2) | 6.1 | |||||||
(d)(3) | 6.1 | |||||||
(e) | 5.14 | |||||||
§316 | (a)(1)(A) | 5.12 | ||||||
(a)(1)(B) | 5.2 | |||||||
5.13 | ||||||||
(a)(2) | Not Applicable | |||||||
(b) | 5.8 | |||||||
(c) | 1.4(c) | |||||||
§317 | (a)(1) | 5.3 | ||||||
(a)(2) | 5.4 | |||||||
(b) | 10.3 | |||||||
§318 | (a) | 1.7 |
2 |
(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 in this Indenture which are defined in the Trust Indenture Act, either directly or by reference to the Trust Indenture Act, have the meanings assigned to them in the Trust Indenture Act; |
(3) | all accounting terms not otherwise defined in this Indenture have the meanings assigned to them in accordance with accounting principles generally accepted in the United States and, except as otherwise expressly provided in this Indenture, the term “accounting principles generally accepted in the United States” with respect to any computation |
1 |
(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; and |
(5) | unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture. |
2 |
3 |
(i) | Securities previously cancelled by the Trustee or delivered to the Trustee for cancellation; |
(ii) | Securities for whose payment or redemption money in the necessary amount has been previously deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision for such redemption satisfactory to the Trustee has been made; |
4 |
(iii) | Securities which have been paid pursuant to Section 3.6 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 protected purchaser in whose hands such Securities are valid obligations of the Company; |
(iv) | Securities which have been defeased pursuant to Section 13.2; and |
5 |
6 |
(1) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the related definitions; |
7 |
(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 has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(4) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
(a) | Any request, demand, authorization, direction, notice, consent, waiver, or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as otherwise expressly provided in this Indenture, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is expressly required |
8 |
(b) | The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him its execution. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. |
(c) | The Company may fix any day as the record date for the purpose of determining the Holders of Securities of any series entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or other action, or to vote on any action, authorized, or permitted to be given or taken by Holders of Securities of such series. If not set by the Company prior to the first solicitation of a Holder of Securities of such series made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 7.1) prior to such first solicitation or vote, as the case may be. With regard to any record date for action to be taken by the Holders of one or more series of Securities, only the Holders of Securities of such series on such date (or their duly designated proxies) shall be entitled to give, take, or vote on the relevant action. |
(d) | The ownership of Securities shall be proved by the Security Register. |
9 |
(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 of, in exchange for, or in lieu of such Security in respect of anything done, omitted, or suffered to be done by the Trustee or the Company in reliance on such action, whether or not notation of such action is made upon such Security. |
(f) | Without limiting the foregoing, a Holder entitled to give or take any action under this Indenture with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount. |
(1) | the Trustee by any Holder or by the Company shall be sufficient for every purpose under this Indenture if made, given, furnished, or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: [______________________], or |
(2) | the Company by the Trustee or by any Holder shall be sufficient for every purpose under this Indenture (unless otherwise expressly provided in this Indenture) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Corporate Secretary. |
10 |
11 |
12 |
13 |
Dated: | [_____________________________________] |
as Trustee | |
By: | ______________________________________ |
Authorized Signatory |
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(1) | the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); |
(2) | any limit upon the aggregate principal amount of the Securities of the series which 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 3.4, 3.5, 3.6, 9.6, or 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered under this Indenture); |
(3) | the Person to whom any interest on a 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 Regular Record Date for such interest; |
(4) | the date or dates on which the principal (and premium, if any) of the Securities of the series is payable; |
(5) | the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable, and the Regular Record Date for any interest payable on any Interest Payment Date; |
(6) | the place or places in addition to the Borough of Manhattan, The City of New York, where the principal of and any premium and interest on Securities of the series shall be payable; |
(7) | the period or periods within which, the price or prices at which, and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced; |
(8) | the obligation, if any, of the Company to redeem, purchase, or repay Securities of the series pursuant to any mandatory redemption, sinking fund, or analogous provision or at the option of a Holder of the Security, and the period or periods within which, the price |
15 |
(9) | if other than denominations of $1,000 and integral multiples of such denomination, the denomination or denominations in which Securities of the series shall be issuable; |
(10) | if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or formula, the manner in which such amounts shall be determined; |
(11) | if other than the principal amount of the Securities of the series, the portion of the principal amount of Securities which shall be payable upon declaration of acceleration of its Maturity pursuant to Section 5.2; |
(12) | if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose under the Securities or this Indenture, including the principal amount which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined); |
(13) | the application, if any, of either or both of Section 13.2 and Section 13.3 to the Securities of the series (including, in the case of Section 13.3, the covenants and any Events of Default not specified therein that are subject thereto) and, if other than by a Board Resolution, the manner in which any election pursuant to such Sections by the Company shall be evidenced; |
(14) | whether the Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the Depositary or Depositaries for such Global Security or Global Securities (if other than The Depository Trust Company), and any circumstances other than those set forth in Section 3.5 in which any such Global Security may be transferred to, and registered and exchanged for, Securities registered in the name of, a Person other than the Depositary for such Global Security or its nominee and in which any such transfer may be registered; |
(15) | any Authenticating Agents, Paying Agents, or any other agents with respect to the Securities of the series; |
16 |
(16) | any other covenant or warranty included for the benefit of Securities of the series in addition to (and not inconsistent with) those included in this Indenture for the benefit of Securities of all series, or any other covenant or warranty included for the benefit of Securities of the series in lieu of any covenant or warranty included in this Indenture for the benefit of Securities of all series (including any covenant contained in Article X), or any provision that any covenant or warranty included in this Indenture for the benefit of Securities of all series (including any covenant contained in Article X) shall not be for the benefit of Securities of such series, or any change to or combination of the provisions of any such covenant or warranty included in this Indenture for the benefit of Securities of all series (including any covenants contained in Article X) which applies to the Securities of such series; |
(17) | any addition to, deletion from, or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount of such Securities due and payable pursuant to Section 5.2; and |
(18) | any other terms of the Securities of such series, or of any specified tenor thereof. |
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(a) | a Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Company, provided that, with respect to Securities of a series subject to a Periodic Offering, (i) such Company Order may be delivered by the Company to the Trustee at any time prior to the delivery to the Trustee of the Securities of such series for authentication and delivery, (ii) the Trustee shall authenticate and deliver the Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to a Company Order or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by a Company Order, and (iii) if so provided in or pursuant to the Board Resolution or supplemental indenture establishing the Securities of such series, the maturity date, original issue date, interest |
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(b) | any Board Resolution, Officers’ Certificate and/or executed supplemental indenture referred to in Sections 2.1 and 3.1 by or pursuant to which the form or forms and terms of the Securities of such series were established; |
(c) | an Officers’ Certificate setting forth the form or forms and the terms of the Securities of such series, stating that such form or forms and terms have been established pursuant to Sections 2.1 and 3.1 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and |
(d) | an Opinion of Counsel, substantially to the effect that: |
(i) | the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture; |
(ii) | the terms of the Securities of such series (or the manner of determining such terms) have been established in conformity with the provisions of this Indenture; and |
(iii) | that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general applicability relating to or affecting creditors rights and to general equity principles and other customary qualifications and assumptions. |
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21 |
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(1) | The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are |
23 |
(2) | The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. |
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(1) | either: |
(A) | all Securities previously authenticated and delivered (other than (i) Securities which have been destroyed, lost, or stolen and which have been replaced or paid as provided in Section 3.6 and (ii) Securities for whose payment money has previously been deposited in trust or segregated and held in trust by the Company |
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(B) | all such Securities not previously 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) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, |
(2) | the Company has paid or caused to be paid all other sums payable by the Company under this Indenture; and |
(3) | the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. |
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(1) | default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; |
(2) | default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; |
(3) | default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 30 days; |
(4) | default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 5.1 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach (without such default or breach having been waived in accordance of the provisions of this Indenture) for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such |
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(5) | the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States of America or any political subdivision thereof, and such decree or order shall have continued unstayed and in effect for a period of 60 consecutive days; or |
(6) | the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States of America or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case under any such law; |
(7) | default in the delivery of any shares of common stock of the Company, together with cash in lieu of any fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series or upon the exchange of any Security of such series which is exchangeable for other securities or property, and continuance of such default for a period of 10 days; or |
(8) | any other Event of Default with respect to Securities of that series. |
(1) | the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest on all Securities of that series, (B) the principal of (and premium, if any, on) any Securities of all affected series which have become due otherwise than by such declaration of acceleration and any interest on such Securities at the rate or rates prescribed in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed in such Securities, and (D) all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel; |
(2) | all Events of Default with respect to Securities of all affected series, other than the non-payment of the principal of Securities of the affected series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. |
(1) | default is made in the payment of any interest on any Security 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 its Maturity, or |
(3) | default is made in the making or satisfaction of any sinking fund or analogous obligation when the same becomes due pursuant to the terms of any Security, |
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(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; |
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(2) | the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; |
(3) | such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee 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 in principal amount of the Outstanding Securities of that series; |
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(1) | such direction shall not be in conflict with any rule of law or with this Indenture, |
(2) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and |
(3) | the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. |
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(a) | the Trustee may conclusively rely and shall be 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; |
(b) | any request or direction of the Company mentioned in this Indenture shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; |
(c) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Indenture, the Trustee (unless other evidence be specifically prescribed in this Indenture) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate; |
(d) | 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 under this Indenture in good faith and in reliance on such advice or Opinion of Counsel; |
(e) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses, and liabilities which might be incurred by it in compliance with such request or direction; |
(f) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, |
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(g) | the Trustee may execute any of the trusts or powers or perform any duties under this Indenture either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it; |
(h) | the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
(i) | the Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Securities unless written notice of such default or Event of Default shall have been given to a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee by the Company or by any Holder of the Securities, and such notice references the Securities and this Indenture; |
(j) | the permissive rights of the Trustee enumerated herein shall not be construed as duties; |
(k) | the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; |
(l) | the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; |
(m) | anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action; and |
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(n) | 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 provision of any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action. |
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(1) | to pay to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by it under this Indenture (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 in this Indenture, 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 or willful misconduct; and |
(3) | to indemnify each of the Trustee and any predecessor Trustee and their officers, agents, directors and employees for, and to hold them harmless against, any and all loss, damage, claim, liability, or expense, including fees and expenses of counsel and including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred without gross negligence or willful misconduct on their part, arising out of or in connection with the acceptance or administration of the trust or trusts under this Indenture, including the costs and expenses of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties under this Indenture, or in connection with enforcing the provisions of this Section. |
40 |
(a) | No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. |
(b) | The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice of such resignation to the Company. |
41 |
(c) | The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. |
(d) | If at any time: |
(1) | the Trustee shall fail to comply with Section 6.8 after written request for such compliance by the Company 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 6.9 and shall fail to resign after written request by the Company or by any such Holder, 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, |
(e) | If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation or removal, the Trustee resigning or being removed may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. |
(f) | 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 Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more 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) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal, or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a |
42 |
(g) | The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.6. 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. |
(a) | In case of the appointment of a successor Trustee under this Indenture with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge, and deliver to the Company and to the retiring Trustee an instrument accepting such appointment. Upon such delivery, the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed, or conveyance, shall become vested with all the rights, powers, trusts, and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and all other amounts payable to it hereunder, 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 under this Indenture, subject nevertheless to its lien provided for in Section 6.7. |
(b) | In case of the appointment under this Indenture of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee, and each successor Trustee with respect to the Securities of one or more series shall execute and deliver a supplemental indenture 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, |
43 |
(c) | Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers, and trusts referred to in paragraph (a) and (b) of this Section, as the case may be. |
(d) | No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. |
44 |
45 |
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(a) | semi-annually, not later than June 30 and December 31 in each year, a list for each series, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the preceding June 15 or December 15, as the case may be, and |
(b) | at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; |
(a) | The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may dispose of as it deems fit any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished. |
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(b) | The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. |
(c) | Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. |
(a) | The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act. To the extent that any such report is required by the Trust Indenture Act with respect to any 12-month period, such report shall cover the 12-month period ending May 15 and shall be transmitted (in accordance with the Trust Indenture Act) by the next succeeding July 15. |
(b) | A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission, and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange. |
(1) | in case the Company shall consolidate with or merge into another Person or convey, transfer, or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, shall be organized and validly existing under the laws of the United States of America, any of its states or the District of Columbia, and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; |
(2) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and |
(3) | the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer, or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent in this Indenture provided for relating to such transaction have been complied with. |
49 |
(1) | to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company in this Indenture and in the Securities; or |
(2) | to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power conferred in this Indenture upon the Company; or |
(3) | to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or |
(4) | to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or |
(5) | to add to, change, or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change, or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or |
(6) | to secure the Securities; or |
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(7) | to establish the form or forms or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or |
(8) | to evidence and provide for the acceptance of appointment under this Indenture 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 under this Indenture by more than one Trustee, pursuant to the requirements of Section 6.11(b); or |
(9) | to comply with any requirements of the Commission in connection with qualifying this Indenture under the Trust Indenture Act; |
(10) | to cure any ambiguity, mistake, defect or inconsistency; or |
(11) | to make any change, provided that such change shall not adversely affect the interests of the Holders of Securities of any series in any material respect. |
(1) | change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce its principal amount or rate of interest or any premium payable upon its redemption, or reduce the amount of the principal of an Original Issue Discount Security or any other Security that would be due and payable upon a declaration of acceleration of its Maturity pursuant to Section 5.2, or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where any Security or any premium or interest is payable, or impair the right to institute suit for the enforcement of any such payment on or after its Stated Maturity (or, in the case of redemption, on or after the Redemption Date), or |
(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, or the consent |
51 |
(3) | modify any of the provisions of this Section, Section 5.13, or Section 10.8, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each affected Outstanding Security, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) and 9.1(8). |
52 |
53 |
54 |
55 |
56 |
57 |
58 |
(1) | the Redemption Date, |
(3) | if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed, and that on or after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in authorized denominations for an aggregate principal amount equal to the unredeemed portion will be issued, |
(4) | that on the Redemption Date the Redemption Price and accrued interest, if any, will become due and payable upon each such Security to be redeemed and that interest on such Security will cease to accrue on and after such date, |
(5) | the place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any, |
(6) | that the redemption is for a sinking fund, if such is the case, and |
(7) | the CUSIP numbers”, “ISIN” or other similar numbers, if any, of the Securities to be redeemed. |
59 |
60 |
61 |
Section 13.1. | Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. |
62 |
(1) | The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to comply with the provisions of the Indenture applicable to it as if it were the Trustee under this Indenture), as trust funds in trust for the purpose of making the following payments, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination of such money and U.S. Government Obligations, in each case sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee as previously provided) to pay and discharge, the principal of (and premium, if any) and interest on the Outstanding Securities of such series on the Maturity of such principal, any premium or interest, and any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on their due dates. Before such a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article XI, which shall be given effect in applying the foregoing provisions. For this purpose, “U.S. Government Obligations” means securities that are (x) direct obligations of the United |
63 |
(2) | No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing (A) on the date of such deposit or (B) insofar as subsections 5.1(1) and (2) are concerned, at any time during the period ending on the 120th day after the date of such deposit or, if longer, ending on the day following the expiration of the preference period applicable to the Company under federal law in respect of such deposit (it being understood that the condition in this clause (B) shall not be deemed satisfied until the expiration of such period). |
(3) | Such Defeasance or Covenant Defeasance shall not (A) cause the Trustee in respect of the Securities of such series to have a conflicting interest as defined in Section 6.8 or for purposes of the Trust Indenture Act with respect to any Securities of the Company or (B) result in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended. |
(4) | Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound. |
(5) | Such Defeasance or Covenant Defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted. |
(6) | In the case of an election under Section 13.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there |
64 |
(7) | In the case of an election under Section 13.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain, or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner, and at the same times as would have been the case if such Covenant Defeasance had not occurred. |
(8) | The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (subject to customary qualifications and assumptions) after the period described in Section 13.4(2), the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally. |
(9) | Such Defeasance or Covenant Defeasance shall be effected in compliance with any additional terms, conditions, or limitations which may be imposed on the Company in connection with such Defeasance or Covenant Defeasance pursuant to Section 3.1. |
(10) | The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to either the Defeasance under Section 13.2 or the Covenant Defeasance under Section 13.3 (as the case may be) have been complied with. |
Section 13.5. | Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. |
65 |
66 |
67 |
TABLE OF CONTENTS | |||
ARTICLE I | Definitions And Other Provisions Of General Application | 1 | |
Section 1.1. | Definitions | 1 | |
Section 1.2. | Compliance Certificates and Opinions | 8 | |
Section 1.3. | Form of Documents Delivered to Trustee | 9 | |
Section 1.4. | Acts of Holders; Record Dates | 10 | |
Section 1.5. | Notices, Etc. to Trustee and Company | 11 | |
Section 1.6. | Notice to Holders; Waiver | 12 | |
Section 1.7. | Conflict with Trust Indenture Act | 13 | |
Section 1.8. | Effect of Headings and Table of Contents | 13 | |
Section 1.9. | Successors and Assigns | 13 | |
Section 1.10. | Separability Clause | 13 | |
Section 1.11. | Benefits of Indenture | 13 | |
Section 1.12. | Governing Law; Waiver of Jury Trial; Consent of Jurisdiction | 13 | |
Section 1.13. | Legal Holidays | 14 | |
ARTICLE II | Security Forms | 14 | |
Section 2.1. | Forms Generally | 14 | |
Section 2.2. | Form of Legend for Global Securities | 15 | |
Section 2.3. | Form of Trustee's Certificate of Authentication | 15 | |
ARTICLE III | The Securities | 16 | |
Section 3.1. | Amount Unlimited; Issuable in Series | 16 | |
Section 3.2. | Denominations | 19 | |
Section 3.3. | Execution, Authentication, Delivery and Dating | 19 | |
Section 3.4. | Temporary Securities | 21 | |
Section 3.5. | Registration, Registration of Transfer and Exchange | 22 | |
Section 3.6. | Mutilated, Destroyed, Lost, and Stolen Securities | 24 | |
Section 3.7. | Payment of Interest; Interest Rights Preserved | 24 | |
Section 3.8. | Persons Deemed Owners | 26 | |
Section 3.9. | Cancellation | 27 | |
Section 3.10. | Computation of Interest | 27 | |
Section 3.11. | CUSIP Numbers | 27 | |
ARTICLE IV | Satisfaction and Discharge | 27 | |
Section 4.1. | Satisfaction and Discharge of Indenture | 27 | |
Section 4.2. | Application of Trust Money | 29 | |
ARTICLE V | Remedies | 29 | |
Section 5.1. | Events of Default | 29 | |
Section 5.2. | Acceleration of Maturity; Rescission and Annulment | 30 | |
Section 5.3. | Collection of Indebtedness and Suits for Enforcement by Trustee | 31 | |
Section 5.4. | Trustee May File Proofs of Claim | 32 | |
Section 5.5. | Trustee May Enforce Claims Without Possession of Securities | 33 | |
Section 5.6. | Application of Money Collected | 33 | |
Section 5.7. | Limitation on Suits | 33 |
i |
Section 5.8. | Unconditional right of Holders to Receive Principal, Premium, and Interest | 34 | |
Section 5.9. | Restoration of Rights and Remedies | 34 | |
Section 5.10. | Rights and Remedies Cumulative | 34 | |
Section 5.11. | Delay or Omission Not Waiver | 35 | |
Section 5.12. | Control by Holders | 35 | |
Section 5.13. | Waiver of Past Defaults | 35 | |
Section 5.14. | Undertaking for Costs | 36 | |
ARTICLE VI | The Trustee | 36 | |
Section 6.1. | Certain Duties and Responsibilities | 36 | |
Section 6.2. | Notice of Defaults | 37 | |
Section 6.3. | Certain Rights of Trustee | 38 | |
Section 6.4. | Not Responsible for Recitals or Issuance of Securities | 40 | |
Section 6.5. | May Hold Securities | 40 | |
Section 6.6. | Money Held in Trust | 40 | |
Section 6.7. | Compensation and Reimbursement | 40 | |
Section 6.8. | Disqualification; Conflicting Interests | 42 | |
Section 6.9. | Corporate Trustee Required; Eligibility | 42 | |
Section 6.10. | Resignation and Removal; Appointment of Successor | 42 | |
Section 6.11. | Acceptance of Appointment by Successor | 44 | |
Section 6.12. | Merger, Conversion, Consolidation, or Succession to Business | 45 | |
Section 6.13. | Preferential Collection of Claims Against Company | 46 | |
Section 6.14. | Appointment of Authenticating Agent | 46 | |
ARTICLE VII | Holder's Lists and Reports by Trustee and Company | 48 | |
Section 7.1. | Company to Furnish Trustee Names and Addresses of Holders | 48 | |
Section 7.2. | Preservation of Information; Communications to Holders | 48 | |
Section 7.3. | Reports by Trustee | 49 | |
Section 7.4. | Reports by Company | 49 | |
ARTICLE VIII | Consolidation, Merger, Conveyance, Transfer or Lease | 50 | |
Section 8.1. | Company May Consolidate, Etc., Only on Certain Terms | 50 | |
Section 8.2. | Successor Substituted | 50 | |
ARTICLE IX | Supplemental Indentures | 51 | |
Section 9.1. | Supplemental Indentures Without consent of Holders | 51 | |
Section 9.2. | Supplemental Indentures With Consent of Holders | 52 | |
Section 9.3. | Execution of Supplemental Indentures | 53 | |
Section 9.4. | Effect of Supplemental Indentures | 53 | |
Section 9.5. | Conformity With Trust Indenture Act | 54 | |
Section 9.6. | Reference in Securities to Supplemental Indentures | 54 | |
Section 9.7. | Notice of Supplemental Indentures | 54 | |
ARTICLE X | Covenants | 54 | |
Section 10.1. | Payment of Principal, Premium, and Interest | 54 | |
Section 10.2. | Maintenance of Office or Agency | 54 | |
Section 10.3. | Money for Securities Payments to Be Held in Trust | 55 |
ii |
Section 10.4. | Statement by Officers as to Default | 56 | |
Section 10.5. | Existence | 56 | |
Section 10.6. | Maintenance of Properties | 56 | |
Section 10.7. | Payment of Taxes and Other Claims | 57 | |
Section 10.8. | Waiver of Certain Covenants | 57 | |
Section 10.9. | Calculation of Original Issue Discount | 57 | |
Section 10.10. | Tax Payment and Tax Withholding Obligations | 58 | |
ARTICLE XI | Redemption of Securities | 58 | |
Section 11.1. | Applicability of Article | 58 | |
Section 11.2. | Election to Redeem; Notice to Trustee | 58 | |
Section 11.3. | Selection of trustee of Securities to Be Redeemed | 59 | |
Section 11.4. | Notice of Redemption | 59 | |
Section 11.5. | Deposit of Redemption Price | 60 | |
Section 11.6. | Securities Payable on Redemption Date | 61 | |
Section 11.7. | Securities Redeemed in Part | 61 | |
ARTICLE XII | Sinking Funds | 61 | |
Section 12.1. | Applicability of Article | 61 | |
Section 12.2. | Satisfaction of Sinking Fund Payments with Securities | 62 | |
Section 12.3. | Redemption of Securities for Sinking Fund | 62 | |
ARTICLE XIII | Defeasance and Covenant Defeasance | 63 | |
Section 13.1. | Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance | 63 | |
Section 13.2. | Defeasance and Discharge | 63 | |
Section 13.3. | Covenant Defeasance | 64 | |
Section 13.4. | Conditions to Defeasance or Covenant Defeasance | 64 | |
Section 13.5. | Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 66 | |
Section 13.6. | Reinstatement | 67 | |
ARTICLE XIV | Subordination of Securities | 67 | |
Section 14.1. | Securities Subordinate to Senior Debt | 67 | |
Section 14.2. | No Payment When Senior Debt in Default | 70 | |
Section 14.3. | Trustee and Holders of Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt | 71 | |
Section 14.4. | Payment Permitted If No Default | 72 | |
Section 14.5. | Trustee Not Charged with Knowledge of Prohibition | 72 | |
Section 14.6. | Trustee of Effectuate Subordination | 73 | |
Section 14.7. | Rights of Trustee as Holder of Senior Debt | 73 | |
Section 14.8. | Article Applicable to Paying Agents | 73 | |
Section 14.9. | Subordination Rights Not impaired by Acts or Omissions of the Company or Holders of Senior Debt | 73 | |
Section 14.10. | Trustee's Rights to Compensation, Reimbursement of Expenses and Indemnification | 74 |
iii |
Section 14.11. | Modification of Subordination Provisions | 74 |
iv |
Trust Indenture Act Section | Indenture Section | |||||||
§310 | (a)(1) | 6.9 | ||||||
(a)(2) | 6.9 | |||||||
(a)(3) | Not Applicable | |||||||
(a)(4) | Not Applicable | |||||||
(b) | 6.8 | |||||||
6.10 | ||||||||
§311 | (a) | 6.13 | ||||||
(b) | 6.13 | |||||||
§312 | (a) | 7.1 | ||||||
(b) | 7.2(a) | |||||||
(c) | 7.2(b) | |||||||
§313 | (a) | 7.3(a) | ||||||
(b) | 7.3(a) | |||||||
(c) | 7.3(a) | |||||||
(d) | 7.3(b) | |||||||
§314 | (a) | 7.4 | ||||||
(a)(4) | 1.2 | |||||||
10.4 | ||||||||
(b) | Not Applicable | |||||||
(c)(1) | 1.2 | |||||||
(c)(2) | 1.2 |
1 |
(c)(3) | Not Applicable | |||||||
(d) | Not Applicable | |||||||
(e) | 1.2 | |||||||
§315 | (a) | 6.1 | ||||||
(b) | 6.2 | |||||||
(c) | 6.1 | |||||||
(d) | 6.1 | |||||||
(d)(1) | 6.1 | |||||||
(d)(2) | 6.1 | |||||||
(d)(3) | 6.1 | |||||||
(e) | 5.14 | |||||||
§316 | (a)(1)(A) | 5.12 | ||||||
(a)(1)(B) | 5.2 | |||||||
5.13 | ||||||||
(a)(2) | Not Applicable | |||||||
(b) | 5.8 | |||||||
(c) | 1.4(c) | |||||||
§317 | (a)(1) | 5.3 | ||||||
(a)(2) | 5.4 | |||||||
(b) | 10.3 | |||||||
§318 | (a) | 1.7 |
2 |
(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 in this Indenture which are defined in the Trust Indenture Act, either directly or by reference to the Trust Indenture Act, have the meanings assigned to them in the Trust Indenture Act; |
(3) | all accounting terms not otherwise defined in this Indenture have the meanings assigned to them in accordance with accounting principles generally accepted in the United States and, except as otherwise expressly provided in this Indenture, the term “accounting principles generally accepted in the United States” with respect to any computation |
1 |
(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; and |
(5) | unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture. |
2 |
3 |
(i) | Securities previously cancelled by the Trustee or delivered to the Trustee for cancellation; |
(ii) | Securities for whose payment or redemption money in the necessary amount has been previously deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision for such redemption satisfactory to the Trustee has been made; |
4 |
(iii) | Securities which have been paid pursuant to Section 3.6 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 protected purchaser in whose hands such Securities are valid obligations of the Company; |
(iv) | Securities which have been defeased pursuant to Section 13.2; and |
5 |
6 |
(i) | any of the Company’s indebtedness for borrowed or purchased money, whether or not evidenced by bonds, debentures, notes, or other written instruments, including any obligations of the Company to general creditors or trade creditors, |
(ii) | the Company’s obligations under letters of credit, |
(iii) | any of the Company’s indebtedness or other obligations with respect to commodity contracts, interest rate and currency swap agreements, cap, floor, and collar agreements, currency spot and forward contracts, and other similar agreements or arrangements designed to protect against fluctuations in currency exchange or interest rates, and |
(iv) | any guarantees, endorsements (other than by endorsement of negotiable instruments for collection in the ordinary course of business), or other similar contingent obligations in respect of obligations of others of a type described in clauses (i), (ii), and (iii), whether or not such obligation is classified as a liability on a balance sheet prepared in accordance with accounting principles generally accepted in the United States, |
7 |
8 |
(1) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the related definitions; |
(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 has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(4) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
9 |
(a) | Any request, demand, authorization, direction, notice, consent, waiver, or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as otherwise expressly provided in this Indenture, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is expressly required by this Indenture, to the Company. Such instrument or instruments (and the action embodied in and evidenced by such instrument or instruments) are sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. |
(b) | The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him its execution. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. |
(c) | The Company may fix any day as the record date for the purpose of determining the Holders of Securities of any series entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or other action, or to vote on any action, |
10 |
(d) | The ownership of Securities shall be proved by the Security Register. |
(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 of, in exchange for, or in lieu of such Security in respect of anything done, omitted, or suffered to be done by the Trustee or the Company in reliance on such action, whether or not notation of such action is made upon such Security. |
(f) | Without limiting the foregoing, a Holder entitled to give or take any action under this Indenture with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any different part of such principal amount. |
(1) | the Trustee by any Holder or by the Company shall be sufficient for every purpose under this Indenture if made, given, furnished, or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: [______________________], or |
(2) | the Company by the Trustee or by any Holder shall be sufficient for every purpose under this Indenture (unless otherwise expressly provided in this Indenture) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Corporate Secretary. |
11 |
12 |
13 |
14 |
Dated: | [________________________________________], |
as Trustee | |
By: | _________________________________________ |
Authorized Signatory |
15 |
(1) | the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); |
(2) | any limit upon the aggregate principal amount of the Securities of the series which 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 3.4, 3.5, 3.6, 9.6, or 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered under this Indenture); |
(3) | the Person to whom any interest on a 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 Regular Record Date for such interest; |
(4) | the date or dates on which the principal (and premium, if any) of the Securities of the series is payable; |
(5) | the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable, and the Regular Record Date for any interest payable on any Interest Payment Date; |
(6) | the place or places in addition to the Borough of Manhattan, The City of New York, where the principal of and any premium and interest on Securities of the series shall be payable; |
16 |
(7) | the period or periods within which, the price or prices at which, and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced; |
(8) | the obligation, if any, of the Company to redeem, purchase, or repay Securities of the series pursuant to any mandatory redemption, sinking fund, or analogous provision or at the option of a Holder of the Security, and the period or periods within which, the price or prices at which, and the terms and conditions upon which Securities of the series shall be redeemed, purchased, or repaid, in whole or in part, pursuant to such obligation; |
(9) | if other than denominations of $1,000 and integral multiples of such denomination, the denomination or denominations in which Securities of the series shall be issuable; |
(10) | if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or formula, the manner in which such amounts shall be determined; |
(11) | if other than the principal amount of the Securities of the series, the portion of the principal amount of Securities which shall be payable upon declaration of acceleration of its Maturity pursuant to Section 5.2; |
(12) | if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose under the Securities or this Indenture, including the principal amount which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined); |
(13) | the application, if any, of either or both of Section 13.2 and Section 13.3 to the Securities of the series (including, in the case of Section 13.3, the covenants and any Events of Default not specified therein that are subject thereto) and, if other than by a Board Resolution, the manner in which any election pursuant to such Sections by the Company shall be evidenced; |
(14) | whether the Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the Depositary or Depositaries for such Global Security or Global Securities (if other than The Depository Trust Company), and any circumstances other than those set forth in Section 3.5 in which any such Global |
17 |
(15) | any Authenticating Agents, Paying Agents, or any other agents with respect to the Securities of the series; |
(16) | any other covenant or warranty included for the benefit of Securities of the series in addition to (and not inconsistent with) those included in this Indenture for the benefit of Securities of all series, or any other covenant or warranty included for the benefit of Securities of the series in lieu of any covenant or warranty included in this Indenture for the benefit of Securities of all series (including any covenant contained in Article X), or any provision that any covenant or warranty included in this Indenture for the benefit of Securities of all series (including any covenant contained in Article X) shall not be for the benefit of Securities of such series, or any change to or combination of the provisions of any such covenant or warranty included in this Indenture for the benefit of Securities of all series (including any covenants contained in Article X) which applies to the Securities of such series; |
(17) | any addition to, deletion from, or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount of such Securities due and payable pursuant to Section 5.2; and |
(18) | any other terms of the Securities of such series, or of any specified tenor thereof. |
18 |
(a) | a Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Company, provided that, with respect to Securities of a series subject to a Periodic Offering, (i) such Company Order may be delivered by the Company to the Trustee at any time prior to the delivery to the Trustee of the Securities of such series for authentication and delivery, (ii) the Trustee shall |
19 |
(b) | any Board Resolution, Officers’ Certificate and/or executed supplemental indenture referred to in Sections 2.1 and 3.1 by or pursuant to which the form or forms and terms of the Securities of such series were established; |
(c) | an Officers’ Certificate setting forth the form or forms and the terms of the Securities of such series, stating that such form or forms and terms have been established pursuant to Sections 2.1 and 3.1 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and |
(d) | an Opinion of Counsel, substantially to the effect that: |
(i) | the form or forms of the Securities of such series have been duly authorized and established in conformity with the provisions of this Indenture; |
(ii) | the terms of the Securities of such series (or the manner of determining such terms) have been established in conformity with the provisions of this Indenture; and |
(iii) | that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general applicability relating to or affecting creditors rights and to general equity principles and other customary qualifications and assumptions. |
20 |
21 |
22 |
23 |
24 |
(1) | The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this Clause. At such time the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the related Special Record Date to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the related Special Record Date having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the 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). |
(2) | The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. |
25 |
26 |
27 |
(1) | either: |
(A) | all Securities previously authenticated and delivered (other than (i) Securities which have been destroyed, lost, or stolen and which have been replaced or paid as provided in Section 3.6 and (ii) Securities for whose payment money has previously been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or |
(B) | all such Securities not previously 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) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, |
(2) | the Company has paid or caused to be paid all other sums payable by the Company under this Indenture; and |
(3) | the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. |
28 |
(1) | the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States of America or any political subdivision thereof, and such decree or order shall have continued unstayed and in effect for a period of 60 consecutive days; or |
(2) | the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States of America or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case under any such law; or |
29 |
(3) | any other Event of Default with respect to Securities of that series. |
(1) | the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest on all Securities of all affected series, (B) the principal of (and premium, if any, on) any Securities of all affected series which have become due otherwise than by such declaration of acceleration and any interest on such Securities at the rate or rates prescribed in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed in such Securities, and (D) all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel; |
(2) | all Events of Default with respect to Securities of all affected series, other than the non-payment of the principal of Securities of the affected series which has become due solely by such acceleration, have been cured or waived as provided in Section 5.13. |
30 |
(1) | default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, |
(2) | default is made in the payment of the principal of (or premium, if any, on) any Security at its Maturity, |
(3) | default is made in the making or satisfaction of any sinking fund or analogous obligation when the same becomes due pursuant to the terms of any Security, or |
(4) | default is made in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than such series), and such default or breach continues for a period of 30 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such 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” under this Indenture, |
31 |
32 |
(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 shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; |
33 |
(3) | such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee 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 in principal amount of the outstanding Securities of that series; |
34 |
(1) | such direction shall not be in conflict with any rule of law or with this Indenture, |
(2) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and |
(3) | the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. |
35 |
36 |
37 |
(a) | the Trustee may conclusively rely and shall be 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; |
(b) | any request or direction of the Company mentioned in this Indenture shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; |
(c) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Indenture, the Trustee (unless other evidence be specifically prescribed in this Indenture) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate; |
(d) | 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 under this Indenture in good faith and in reliance on such advice or Opinion of Counsel; |
(e) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses, and liabilities which might be incurred by it in compliance with such request or direction; |
(f) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or |
38 |
(g) | the Trustee may execute any of the trusts or powers or perform any duties under this Indenture either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it; |
(h) | the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
(i) | the Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Securities unless written notice of such default or Event of Default shall have been given to a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee by the Company or by any Holder of the Securities, and such notice references the Securities and this Indenture; |
(j) | the permissive rights of the Trustee enumerated herein shall not be construed as duties; |
(k) | the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; |
(l) | the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; |
(m) | anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action; and |
(n) | 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 |
39 |
(1) | to pay to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by it under this Indenture |
40 |
(2) | except as otherwise expressly provided in this Indenture, 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 or willful misconduct; and |
(3) | to indemnify each of the Trustee and any predecessor Trustee and their officers, agents, directors and employees for, and to hold them harmless against, any and all loss, damage, claim, liability, or expense, including fees and expenses of counsel and including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred without gross negligence or willful misconduct on their part, arising out of or in connection with the acceptance or administration of the trust or trusts under this Indenture, including the costs and expenses of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties under this Indenture, or in connection with enforcing the provisions of this Section. |
41 |
(a) | No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. |
(b) | The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice of such resignation to the Company. |
(c) | The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. |
(d) | If at any time: |
42 |
(1) | the Trustee shall fail to comply with Section 6.8 after written request for such compliance by the Company 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 6.9 and shall fail to resign after written request by the Company or by any such Holder, 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, |
(e) | If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation or removal, the Trustee resigning or being removed may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. |
(f) | 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 Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more 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) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal, or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, immediately upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no |
43 |
(g) | The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.6. 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. |
(a) | In case of the appointment of a successor Trustee under this Indenture with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge, and deliver to the Company and to the retiring Trustee an instrument accepting such appointment. Upon such delivery, the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed, or conveyance, shall become vested with all the rights, powers, trusts, and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and all other amounts payable to it hereunder, 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 under this Indenture, subject nevertheless to its lien provided for in Section 6.7. |
(b) | In case of the appointment under this Indenture of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee, and each successor Trustee with respect to the Securities of one or more series shall execute and deliver a supplemental indenture 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 the Securities of all series, 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 |
44 |
(c) | Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers, and trusts referred to in paragraph (a) and (b) of this Section, as the case may be. |
(d) | No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. |
45 |
46 |
47 |
(a) | semi-annually, not later than June 30 and December 31 in each year, a list for each series, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the preceding June 15 or December 15, as the case may be, and |
(b) | at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; |
(a) | The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may dispose of as it deems fit any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished. |
48 |
(b) | The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. |
(c) | Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. |
(a) | The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act. To the extent that any such report is required by the Trust Indenture Act with respect to any 12-month period, such report shall cover the 12-month period ending May 15 and shall be transmitted (in accordance with the Trust Indenture Act) by the next succeeding July 15. |
(b) | A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission, and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange. |
49 |
(1) | in case the Company shall consolidate with or merge into another Person or convey, transfer, or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, shall be organized and validly existing under the laws of the United States of America, any of its states or the District of Columbia, and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; |
(2) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and |
(3) | the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer, or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent in this Indenture provided for relating to such transaction have been complied with. |
50 |
(1) | to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company in this Indenture and in the Securities; or |
(2) | to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power conferred in this Indenture upon the Company; or |
(3) | to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or |
(4) | to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or |
(5) | to add to, change, or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change, or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or |
(6) | to secure the Securities; or |
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(7) | to establish the form or forms or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or |
(8) | to evidence and provide for the acceptance of appointment under this Indenture 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 under this Indenture by more than one Trustee, pursuant to the requirements of Section 6.11(b); or |
(9) | to comply with any requirements of the Commission in connection with qualifying this Indenture under the Trust Indenture Act; |
(10) | to cure any ambiguity, mistake, defect or inconsistency; or |
(11) | to make any change, provided that such change shall not adversely affect the interests of the Holders of Securities of any series in any material respect. |
(1) | change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce its principal amount or rate of interest or any premium payable upon its redemption, or reduce the amount of the principal of an Original Issue Discount Security or any other Security that would be due and payable upon a declaration of acceleration of its Maturity pursuant to Section 5.2, or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where any Security or any premium or interest is payable, or impair the right to institute suit for the enforcement of any such payment on or after its Stated Maturity (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or |
52 |
(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, or the consent of whose Holders is required for any waiver of compliance with the provisions of or defaults under this Indenture and their consequences provided for in this Indenture, or |
(3) | modify any of the provisions of this Section, Section 5.13, or Section 10.8, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each affected Outstanding Security, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) and 9.1(8). |
53 |
54 |
55 |
56 |
57 |
58 |
59 |
(1) | the Redemption Date, |
(3) | if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed, and that on or after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in authorized denominations for an aggregate principal amount equal to the unredeemed portion will be issued, |
(4) | that on the Redemption Date the Redemption Price and accrued interest, if any, will become due and payable upon each such Security to be redeemed and that interest on such Security will cease to accrue on and after such date, |
(5) | the place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any, |
(6) | that the redemption is for a sinking fund, if such is the case, and |
(7) | the CUSIP numbers”, “ISIN” or other similar numbers, if any, of the Securities to be redeemed. |
60 |
61 |
62 |
Section 13.1. | Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. |
63 |
(1) | The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and agrees to comply with the provisions of the Indenture applicable to it as if it were the Trustee under this Indenture), as trust funds in trust for the purpose of making the following payments, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination of such money and U.S. Government Obligations, in each case sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee as previously provided) to pay and discharge, the principal of (and premium, if any) and interest on the Outstanding Securities of such series on the Maturity of such principal, any premium or interest, and any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on their due dates. Before such a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article XI, which shall be given effect in applying the foregoing provisions. For this purpose, “U.S. Government Obligations” means securities that are (x) direct obligations of the United |
64 |
(2) | No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing (A) on the date of such deposit or (B) insofar as subsections 5.1(1) and (2) are concerned, at any time during the period ending on the 120th day after the date of such deposit or, if longer, ending on the day following the expiration of the preference period applicable to the Company under federal law in respect of such deposit (it being understood that the condition in this clause (B) shall not be deemed satisfied until the expiration of such period). |
(3) | Such Defeasance or Covenant Defeasance shall not (A) cause the Trustee in respect of the Securities of such series to have a conflicting interest as defined in Section 6.8 or for purposes of the Trust Indenture Act with respect to any Securities of the Company or (B) result in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended. |
(4) | Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound. |
(5) | Such Defeasance or Covenant Defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted. |
(6) | In the case of an election under Section 13.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there |
65 |
(7) | In the case of an election under Section 13.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain, or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner, and at the same times as would have been the case if such Covenant Defeasance had not occurred. |
(8) | The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (subject to customary qualifications and assumptions) after the period described in Section 13.4(2), the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally. |
(9) | Such Defeasance or Covenant Defeasance shall be effected in compliance with any additional terms, conditions, or limitations which may be imposed on the Company in connection with such Defeasance or Covenant Defeasance pursuant to Section 3.1. |
(10) | The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to either the Defeasance under Section 13.2 or the Covenant Defeasance under Section 13.3 (as the case may be) have been complied with. |
Section 13.5. | Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. |
66 |
67 |
(a) | any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition, or other similar proceeding relating to the Company or its property, |
(b) | any proceeding for the liquidation, dissolution, or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, |
(c) | any assignment by the Company for the benefit of creditors, or |
(d) | any other marshaling of the assets of the Company, |
68 |
69 |
70 |
Section 14.3. | Trustee and Holders of Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt. |
71 |
72 |
Section 14.9. | Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt. |
73 |
74 |
75 |
Six | ||||||||||||||
Months | ||||||||||||||
Ended | ||||||||||||||
June 30, | Years Ended December 31, | |||||||||||||
2018 | 2017 | 2016 | 2015 | 2014 | 2013 | |||||||||
Ratio of Earnings to Fixed Charges | ||||||||||||||
Including Interest on Deposits (1) | 7.05 | 7.62 | 6.39 | 5.11 | 4.78 | 3.64 | ||||||||
Excluding Interest on Deposits (2) | 20.45 | 18.65 | 12.63 | 9.51 | 8.55 | 5.57 | ||||||||
a | Net Income | 58,673 | 87,204 | 76,648 | 64,960 | 59,845 | 50,254 | |||||||
b | Income Taxes | 16,077 | 47,341 | 35,427 | 27,218 | 23,899 | 16,484 | |||||||
c | Interest Expense on Deposits | 8,522 | 12,702 | 11,140 | 11,576 | 11,039 | 10,623 | |||||||
d | Interest Expense on Borrowings* | 2,755 | 5,632 | 7,653 | 9,041 | 9,378 | 12,712 | |||||||
e | Rent Expense | 1,088 | 1,991 | 1,984 | 1,795 | 1,717 | 1,903 | |||||||
* | Interest expense on borrowings reflects amortization. | |||||||||||||
(1) | (a+b+c+d+e)/(c+d+e) | |||||||||||||
(2) | (a+b+d+e)/(d+e) |