Accenture plc S-3ASR, filed Sep 30, 2024
Accenture plc (ACN)
As filed with the Securities and Exchange Commission on September 30, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| Accenture plc Accenture Capital Inc. Accenture Global Capital DAC |
Ireland Delaware Ireland |
98-0627530 36-4486767 3443253HH | ||
| (Exact name of registrant as specified in its charter) |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
c/o Accenture plc
1 Grand Canal Square
Grand Canal Harbour
Dublin 2, Ireland
(353) (1) 646-2000
(Address, including zip code, and telephone number, including area code, of registrants’ principal executive offices)
Joel Unruch, Esq.
Lilias Lee, Esq.
Accenture plc
500 W. Madison Street
Chicago, Illinois 60661
(312) 693-0161
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Andrew L. Fabens
Robyn Zolman
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
(212) 351-4000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Accenture plc | ||||||||
| Large accelerated filer ☒ | Accelerated filer ☐ | Non-accelerated filer ☐ | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
| Accenture Capital Inc. | ||||||||
| Large accelerated filer ☐ | Accelerated filer ☐ | Non-accelerated filer ☒ | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
| Accenture Global Capital DAC |
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| Large accelerated filer ☐ | Accelerated filer ☐ | Non-accelerated filer ☒ | Smaller reporting company ☐ | Emerging growth company ☐ | ||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
PROSPECTUS
| Accenture plc | Accenture Capital Inc. | Accenture Global Capital DAC | ||
| Guarantees Class A Ordinary Shares Preference Shares Share Purchase Contracts Share Purchase Units Warrants Depositary Shares |
Debt Securities | Debt Securities | ||
| Units |
Accenture plc, Accenture Capital or Accenture DAC (each as defined below) may from time to time offer and sell any of the securities identified above, or any combination thereof, in each case, in one or more series and in one or more offerings. This prospectus provides you with a general description of the securities and the general manner in which they may be offered.
Accenture plc, Accenture Capital or Accenture DAC may offer and sell the securities to or through one or more underwriters, dealers and agents or directly to purchasers, or through a combination of these methods, on a continuous or delayed basis. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See “About this Prospectus” and “Plan of Distribution” for more information. None of the securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
Each time Accenture plc, Accenture Capital or Accenture DAC offers and sells securities, a supplement to this prospectus will be provided that contains specific information about the offering and the amounts, prices and terms of the securities. The prospectus supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of the securities, as well as the documents incorporated or deemed to be incorporated by reference herein and therein.
INVESTING IN THE SECURITIES DESCRIBED IN THIS PROSPECTUS INVOLVES RISK. YOU SHOULD CAREFULLY REVIEW THE RISKS AND UNCERTAINTIES DESCRIBED UNDER “RISK FACTORS” BEGINNING ON PAGE 7 OF THIS PROSPECTUS AND ANY RISK FACTORS SET FORTH IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND IN THE DOCUMENTS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN OR THEREIN.
The Class A ordinary shares of Accenture plc are listed on the New York Stock Exchange under the symbol “ACN.”
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is September 30, 2024.
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| DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS OF ACCENTURE PLC |
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This prospectus is part of an automatic shelf registration statement that we have filed with the U.S. Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”)) using an automatic “shelf” registration process. By using a shelf registration statement, Accenture plc, Accenture Capital or Accenture DAC may, over time, offer any combination of the securities described in this prospectus in one or more offerings.
Unless otherwise stated or the context otherwise requires, in this prospectus we use the terms:
| • | “Accenture Capital” to refer to Accenture Capital Inc., a Delaware corporation and a wholly owned subsidiary of Accenture plc; |
| • | “Accenture DAC” to refer to Accenture Global Capital DAC, an Irish designated activity company and a wholly owned subsidiary of Accenture plc; |
| • | “Accenture plc” to refer to Accenture plc, an Irish public limited company; |
| • | “Accenture,” “we,” “us” or “our” to refer to Accenture plc, together with its consolidated subsidiaries, including Accenture Capital and Accenture DAC; and |
| • | the “securities” to refer collectively to the guarantees, Class A ordinary shares, preference shares, share purchase contracts, share purchase units, warrants, depositary shares and units offered by Accenture plc, the debt securities offered by Accenture Capital and the debt securities offered by Accenture DAC. |
This prospectus provides you with a general description of the securities that Accenture plc, Accenture Capital or Accenture DAC may offer. Each time that Accenture plc, Accenture Capital or Accenture DAC offers and sells securities, a prospectus supplement to this prospectus will be provided that contains specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read this prospectus, any applicable prospectus supplement and any applicable free writing prospectuses, together with the additional information described under “Where You Can Find More Information” and “Incorporation by Reference.”
As allowed by SEC rules, this prospectus does not contain all the information you can find in the registration statement of which this prospectus is a part or the exhibits to such registration statement. For further information, we refer you to such registration statement, including its exhibits and schedules and the documents incorporated by reference therein. Statements contained in this prospectus about the provisions or contents of any contract, agreement or other document are not necessarily complete. For each of these contracts, agreements or documents filed as an exhibit to the registration statement, we refer you to the actual exhibit for a more complete description of the matters involved.
We have not authorized anyone to provide you with any information or to make any representation that is different from, or in addition to, the information contained in this prospectus, any applicable prospectus supplement, any applicable free writing prospectus or any documents incorporated by reference in this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you or representations that others may make. You should not assume that the information contained, incorporated or deemed to be incorporated by reference in this prospectus, any applicable prospectus supplement, any applicable free writing prospectus or any documents incorporated by reference in
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this prospectus is accurate as of any date other than the date on the cover of the applicable document, unless otherwise indicated. The business, financial condition, results of operations and prospects of Accenture plc, Accenture Capital and/or Accenture DAC may have changed since that date. Neither this prospectus nor any prospectus supplement constitutes an offer to sell securities or a solicitation of an offer to buy securities by anyone in any jurisdiction in which that offer or solicitation is not authorized, or in which the person is not qualified to do so or to any person to whom it is unlawful to make that offer or solicitation, nor will we make an offer to sell securities in any jurisdiction where the offer or sale is not permitted.
This document is not intended to be and is not a prospectus for purposes of the Companies Act 2014 of Ireland, as amended, Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (the “EU Prospectus Regulation”) or any legislation, regulations or rules of the European Union, Ireland or any other member state of the European Economic Area implementing the EU Prospectus Regulation. In the United Kingdom, this document is not intended to be and is not a prospectus for the purposes of Regulation (EU) 2017/1129 as it forms part of assimilated law by virtue of the European Union (Withdrawal) Act 2018 (as amended, the “EUWA”) including any statutory instruments made pursuant to the EUWA (the “UK Prospectus Regulation”). This document has not been reviewed or approved by the Central Bank of Ireland nor by any other competent or supervisory authority of any other member state of the European Economic Area or the United Kingdom for the purposes of the EU Prospectus Regulation or the UK Prospectus Regulation. No offer of securities to the public is being, or shall be, made in Ireland or any other member state of the European Economic Area or the United Kingdom on the basis of this document. References to any UK legislation in this paragraph include any successor legislation to that legislation.
This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in documents that are incorporated by reference in such documents. Accordingly, you should not place undue reliance on this information.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In accordance with the Exchange Act, we file reports, proxy statements and other information with the SEC. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC.
Our website address is www.accenture.com. The information on our website is not, and should not be deemed to be, a part of this prospectus.
You will find additional information about us in the registration statement of which this prospectus forms a part. This prospectus and any prospectus supplement do not contain all of the information in the registration statement. Other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference therein. Statements in this prospectus or any prospectus supplement about these documents are summaries, and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. The full registration statement may be obtained through the SEC’s website as provided above, or through us as provided under “Incorporation by Reference.”
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The SEC’s rules allow us to “incorporate by reference” information in this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference herein will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference herein modifies or replaces such statement.
This prospectus and any accompanying prospectus supplement incorporate by reference (i) the documents set forth below and (ii) any future filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of this offering, except we are not incorporating by reference any information furnished (but not filed) under Item 2.02 or Item 7.01 of any Current Report on Form 8-K and exhibits filed on such form that are related to such items, unless specifically noted below for such report or in a prospectus supplement:
| • | Annual Report on Form 10-K for the year ended August 31, 2023, filed with the SEC on October 12, 2023, as revised by our Current Report on Form 8-K filed on September 30, 2024, which revised Part I, Item 1, Part II, Item 7 and Part II, Item 8 thereof; |
| • | information specifically incorporated by reference in the Annual Report on Form 10-K for the year ended August 31, 2023 from the Definitive Proxy Statement on Schedule 14A, filed with the SEC on December 13, 2023; |
| • | Quarterly Reports on Form 10-Q for the quarter ended November 30, 2023, filed with the SEC on December 19, 2023, the quarter ended February 29, 2024, filed with the SEC on March 21, 2024 and the quarter ended May 31, 2024, filed with the SEC on June 20, 2024; |
| • | Current Reports on Form 8-K, filed with the SEC on December 6, 2023, January 31, 2024, May 17, 2024, June 11, 2024 (as amended on July 19, 2024), and September 30, 2024 (including Accenture plc’s recast financial statements and related disclosures, as of August 31, 2023, along with the audit report of our independent registered public accounting firm); and |
| • | the description of the Class A ordinary shares of Accenture plc contained in our Current Report on Form 8-K12B filed with the SEC on September 1, 2009, as updated by the Current Reports of the Company on Form 8-K (under Items 5.03 and 9.01), filed on February 9, 2012, February 3, 2016 and February 7, 2018 and in Exhibit 4.1 to the Company’s Annual Report on Form 10-K filed on October 12, 2023, and as subsequently amended or updated. |
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or calling us at the following address or telephone number:
Accenture plc
Investor Relations
395 Ninth Avenue
60th Floor
New York, New York 10001
United States of America
Telephone: +1 (703) 948-5150
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
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INFORMATION CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated or deemed to be incorporated by reference herein or therein may contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act relating to our operations, results of operations and other matters that are based on our current expectations, estimates, assumptions and projections. Words such as “may,” “will,” “should,” “likely,” “anticipates,” “aspires,” “expects,” “intends,” “plans,” “projects,” “believes,” “estimates,” “positioned,” “outlook,” “goal,” “target” and similar expressions are used to identify these forward-looking statements. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions that are difficult to predict. Forward-looking statements are based upon assumptions as to future events that may not prove to be accurate. Actual outcomes and results may differ materially from what is expressed or forecast in these forward-looking statements. Risks, uncertainties and other factors that might cause such differences, some of which could be material, include but are not limited to those identified below.
| • | Our results of operations have been, and may in the future be, adversely affected by volatile, negative or uncertain economic and geopolitical conditions and the effects of these conditions on our clients’ businesses and levels of business activity. |
| • | Our business depends on generating and maintaining client demand for our services and solutions, including through the adaptation and expansion of our services and solutions in response to ongoing changes in technology and offerings, and a significant reduction in such demand or an inability to respond to the evolving technological environment could materially affect our results of operations. |
| • | Risks and uncertainties related to the development and use of AI could harm our business, damage our reputation or give rise to legal or regulatory action. |
| • | If we are unable to match people and their skills with client demand around the world and attract and retain professionals with strong leadership skills, our business, the utilization rate of our professionals and our results of operations may be materially adversely affected. |
| • | We face legal, reputational and financial risks from any failure to protect client and/or Accenture data from security incidents or cyberattacks. |
| • | The markets in which we operate are highly competitive, and we might not be able to compete effectively. |
| • | Our ability to attract and retain business and employees may depend on our reputation in the marketplace. |
| • | If we do not successfully manage and develop our relationships with key ecosystem partners or if we fail to anticipate and establish new alliances in new technologies, our results of operations could be adversely affected. |
| • | Our profitability could materially suffer due to pricing pressure, if we are unable to remain competitive, if our cost-management strategies are unsuccessful or if we experience delivery inefficiencies or fail to satisfy certain agreed-upon targets or specific service levels. |
| • | Changes in our level of taxes, as well as audits, investigations and tax proceedings, or changes in tax laws or in their interpretation or enforcement, could have a material adverse effect on our effective tax rate, results of operations, cash flows and financial condition. |
| • | Our results of operations could be materially adversely affected by fluctuations in foreign currency exchange rates. |
| • | Our debt obligations could adversely affect our business and financial condition. |
| • | Changes to accounting standards or in the estimates and assumptions we make in connection with the preparation of our consolidated financial statements could adversely affect our financial results. |
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| • | As a result of our geographically diverse operations and our strategy to continue to grow in our key markets around the world, we are more susceptible to certain risks. |
| • | If we are unable to manage the organizational challenges associated with our size, we might be unable to achieve our business objectives. |
| • | We might not be successful at acquiring, investing in or integrating businesses, entering into joint ventures or divesting businesses. |
| • | Our business could be materially adversely affected if we incur legal liability. |
| • | Our global operations expose us to numerous and sometimes conflicting legal and regulatory requirements, and violation of these regulations could harm our business. |
| • | Our work with government clients exposes us to additional risks inherent in the government contracting environment. |
| • | If we are unable to protect or enforce our intellectual property rights, or if our services or solutions infringe upon the intellectual property rights of others or we lose our ability to utilize the intellectual property of others, our business could be adversely affected. |
| • | We are incorporated in Ireland and Irish law differs from the laws in effect in the United States and might afford less protection to our shareholders. We may also be subject to criticism and negative publicity related to our incorporation in Ireland. |
For a more detailed discussion of these factors, see the information under the heading “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K, Part II, Item 1A of any subsequent Quarterly Reports on Form 10-Q and/or any Current Reports on Form 8-K filed after the date of this prospectus. Our forward-looking statements speak only as of the date of this prospectus or as of the date they are made, and we undertake no obligation to update any forward-looking statements. See “Risk Factors.”
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Investment in any securities offered pursuant to this prospectus and any applicable prospectus supplement involves risks. You should carefully consider the risk factors contained under “Risk Factors” in Part I, Item 1A of our most recent Annual Report on Form 10-K, Part II, Item 1A of any subsequent Quarterly Reports on Form 10-Q and/or any Current Reports on Form 8-K filed after the date of this prospectus, and all other information contained in or incorporated by reference in this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in any applicable prospectus supplement and any applicable free writing prospectus, before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
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Accenture is a leading global professional services company that helps the world’s leading organizations build their digital core, optimize their operations, accelerate revenue growth and enhance services—creating tangible value at speed and scale. We are a talent- and innovation-led company with 774,000 people serving clients in more than 120 countries. Technology is at the core of change today, and we are one of the world’s leaders in helping drive that change, with strong ecosystem relationships. We combine our strength in technology and leadership in cloud, data and AI with unmatched industry experience, functional expertise and global delivery capability. Our broad range of services, solutions and assets across Strategy & Consulting, Technology, Operations, Industry X and Song, together with our culture of shared success and commitment to creating 360° value, enable us to help our clients reinvent and build trusted, lasting relationships. We measure our success by the 360° value we create for our clients, each other, our shareholders, partners and communities.
Our principal executive offices are located at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2, Ireland, our telephone number is +(353) (1) 646-2000 and our website is www.accenture.com. The information on, or accessible through, our website is not, and should not be deemed to be, a part of this prospectus or any other filing we make with the SEC.
Accenture plc is an Irish public limited company, and its Class A ordinary shares are currently traded on the NYSE under the symbol “ACN.” Accenture Capital Inc. (“Accenture Capital”) is a Delaware corporation and a wholly owned subsidiary of Accenture plc. Accenture Global Capital DAC is an Irish designated activity company and a wholly owned subsidiary of Accenture plc. See “About this Prospectus,” “Where You Can Find More Information” and “Incorporation by Reference.”
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Unless we state otherwise in an applicable prospectus supplement, we expect to use the net proceeds from the sale of the securities described in this prospectus and any applicable prospectus supplement for general corporate purposes, including securities repurchase programs, capital expenditures, working capital, repayment or reduction of long-term and short-term debt and the financing of acquisitions. We may invest funds that we do not immediately require in short term marketable securities.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
In this description, references to “holders” mean those who own debt securities and the related guarantees registered in their own names, on the books that the registrar maintains for this purpose, and not those who own beneficial interests in debt securities and the related guarantees registered in “street name” or issued in book-entry form and held through one or more depositaries.
The following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of any senior debt securities that Accenture Capital may offer (the “Accenture Capital debt securities”), any senior debt securities that Accenture DAC may offer (the “Accenture DAC debt securities”) or that Accenture Capital and Accenture DAC may offer as co-issuers (the “co-issued debt securities”) pursuant to this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the applicable prospectus supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of debt securities.
Accenture Capital Debt Securities
Accenture Capital may issue Accenture Capital debt securities under an indenture to be entered into later (the “Accenture Capital indenture”), among Accenture Capital, as issuer, and Accenture plc, as guarantor (the “guarantor”), and The Bank of New York Mellon Trust Company, N.A. or another trustee, as trustee, in respect of certain series of Accenture Capital debt securities.
Any Accenture Capital debt securities that Accenture Capital issues under the Accenture Capital indenture will constitute unsubordinated debt of Accenture Capital. Any guarantee that Accenture plc, as the guarantor, issues under the Accenture Capital indenture will constitute an unsubordinated obligation of Accenture plc.
Accenture DAC Debt Securities
Accenture DAC may issue Accenture DAC debt securities under an indenture to be entered into later (the “Accenture DAC indenture”), among Accenture DAC, as issuer, and Accenture plc, as guarantor, and The Bank of New York Mellon Trust Company, N.A. or another trustee, as trustee, in respect of certain series of Accenture DAC debt securities.
Any Accenture DAC debt securities that Accenture DAC issues under the Accenture DAC indenture will constitute unsubordinated debt of Accenture DAC. Any guarantee that Accenture plc, as the guarantor, issues under the Accenture DAC indenture will constitute an unsubordinated obligation of Accenture plc.
Co-Issued Debt Securities
Accenture Capital and Accenture DAC may jointly issue co-issued debt securities under an indenture to be entered into later (the “joint indenture”), among Accenture Capital, as co-issuer, Accenture DAC, as co-issuer, Accenture plc, as guarantor, and The Bank of New York Mellon Trust Company, N.A. or another trustee, as trustee, in respect of certain series of co-issued debt securities.
Any co-issued debt securities that Accenture Capital and Accenture DAC jointly issue under the joint indenture will constitute unsubordinated debt of Accenture Capital and Accenture DAC. Any guarantee that Accenture plc, as the guarantor, issues under the joint indenture will constitute an unsubordinated obligation of Accenture plc.
In this description:
| • | the Accenture Capital debt securities, the Accenture DAC debt securities and the co-issued debt securities are sometimes referred to collectively as the “debt securities”; |
| • | the Accenture Capital indenture, the Accenture DAC indenture and the joint indenture are sometimes referred to collectively as the “indentures”; |
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| • | the guarantees that Accenture plc issues under the indentures are sometimes referred to collectively as the “guarantees”; and |
| • | each of Accenture Capital and Accenture DAC, in each case in its capacity as issuer or co-issuer of debt securities, is sometimes referred to as an “issuer” (which term sometimes refers to the co-issuers collectively). |
The terms of each series of debt securities and guarantees, if applicable, will be established by or pursuant to a resolution of the issuer’s board of directors and set forth or determined in the manner provided in a resolution of the issuer’s board of directors, in an officer’s certificate or by a supplemental indenture. The terms of any debt securities and, if applicable, the guarantees will include those stated in the applicable indenture and those made part of that indenture by reference to the Trust Indenture Act of 1939 (the “Trust Indenture Act”). The debt securities will be subject to all those terms, and we refer prospective purchasers and holders of debt securities and guarantees to the applicable indenture and the Trust Indenture Act for a statement of those terms. The debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
The following summaries of various provisions of the debt securities, the indentures and the guarantees are not complete. They do not describe certain exceptions and qualifications contained in the debt securities, the indentures and the guarantees, and are qualified in their entirety by reference to the provisions of the debt securities, the indentures and the guarantees. Unless we otherwise indicate, capitalized terms have the meanings assigned to them in the applicable indenture.
An applicable prospectus supplement will specify the issuer or co-issuers, the guarantor, if any, and whether the debt securities are to be guaranteed. The debt securities may be issued as part of units consisting of debt securities and other securities that may be offered under this prospectus. If debt securities are issued as part of units of debt securities and other securities that may be issued under this prospectus, an applicable prospectus supplement will describe certain applicable U.S. federal income tax considerations to holders.
General
The debt securities will be unsecured obligations of the applicable issuer. None of the indentures limit the amount of debt securities that the issuer may issue. Each indenture provides that the issuer may issue debt securities from time to time in one or more series.
The debt securities and any debt guarantees will be unsecured and unsubordinated obligations of the applicable issuer and will rank equally in right of payment with such issuer’s other unsecured and unsubordinated obligations. Because Accenture plc is a holding company and Accenture Capital and Accenture DAC do not hold any assets, the holders of debt securities and debt guarantees may not receive assets of the applicable issuer’s subsidiaries in a liquidation or recapitalization until the claims of such subsidiaries’ creditors are paid, except to the extent that the applicable issuer may have recognized claims against such subsidiaries. In addition, certain regulatory laws limit some of such subsidiaries from making payments to the applicable issuer of dividends and on loans and other transfers of funds.
An applicable prospectus supplement will describe the specific terms relating to the series of debt securities being offered. These terms will include some or all of the following:
| • | the name of the issuer, or the names of the co-issuers, of those debt securities and, if applicable, the name of the guarantor; |
| • | the title of the debt securities; |
| • | the total principal amount of the debt securities; |
| • | whether the issuer will issue the debt securities in global form; |
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| • | the maturity date or dates of the debt securities; |
| • | the interest rate or rates, if any (which may be fixed or variable), and, if applicable, the method used to calculate the interest rate; |
| • | the date or dates from which interest will accrue and on which interest will be payable and the date or dates used to determine the persons to whom interest will be paid; |
| • | any trustees, authenticating agents or paying agents with respect to such series, if different from those set forth in the applicable indenture; |
| • | whether the debt securities will be guaranteed; |
| • | whether the debt securities will be secured; |
| • | the place or places where principal of, and any premium or interest on, the debt securities will be paid; |
| • | whether (and if so, when and under what terms and conditions) the debt securities may be redeemed by the issuer and/or any co-issuer, if applicable, at its option or at the option of the holders; |
| • | whether there will be a sinking fund; |
| • | if other than U.S. dollars and denominations of $2,000 or any multiple of $1,000, the currency or currencies or currency unit or currency units or composite currency and denomination in which the debt securities will be issued and in which payments will be made; |
| • | if other than the principal amount, the portion of the principal amount of the debt securities that the issuer will pay upon acceleration of the maturity date; |
| • | if the debt securities are not subject to defeasance by the issuer; |
| • | any deletions from, modifications of or additions to the events of default applicable to such debt securities; |
| • | whether the debt securities will be exchangeable for or convertible into Class A ordinary shares of Accenture plc or any other securities or property and the terms and conditions governing such exchange or conversion; and |
| • | any other terms of the debt securities. |
If an issuer denominates the purchase price of a series of debt securities in a non-U.S. dollar currency or currencies or a non-U.S. dollar currency unit or units, or if the principal of, any premium and interest on any series of debt securities is payable in a non-U.S. dollar currency or currencies or a non-U.S. dollar currency unit or units, an applicable prospectus supplement will generally describe certain U.S. federal income tax considerations applicable to such debt securities.
The issuer will pay principal and any interest, premium and additional amounts in the manner, at the places and subject to the restrictions set forth in the applicable debt securities, the applicable indenture and any applicable prospectus supplement. The issuer will not impose a service charge for any transfer or exchange of debt securities, but it may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed (or proof of payment thereof). (Section 2.05 of the indentures).
Unless otherwise indicated in an applicable prospectus supplement, each issuer will issue debt securities in fully registered form, without coupons, in denominations of $2,000 or integral multiples of $1,000 in excess thereof. (Sections 2.01 and 2.04 of the indentures).
The issuer may offer to sell at a substantial discount below their stated principal amount, debt securities bearing no interest or interest at a rate that, at the time of issuance, is below the prevailing market rate. An applicable prospectus supplement will generally describe certain U.S. federal income tax considerations applicable to any of those discounted debt securities.
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The issuer may offer to sell debt securities in which the principal or interest will be determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. The principal amount or payment of interest applicable to those debt securities may be greater than or less than the amount of principal or interest otherwise payable, depending upon the value of the applicable currency, commodity, equity index or other factor on the date on which that principal or interest is due. An applicable prospectus supplement will describe the methods used to determine the amount of principal or interest payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on that date is linked and certain additional tax considerations applicable to those debt securities.
The indentures do not restrict the issuer’s ability to incur unsecured indebtedness or, unless specified otherwise in the applicable prospectus supplement, secured indebtedness, subject in all cases to the restrictions described in “ —Consolidation and Merger,” to engage in reorganizations, restructurings, mergers, consolidations or similar transactions that have the effect of increasing the issuer’s indebtedness. Accordingly, unless an applicable prospectus supplement states otherwise, neither the debt securities nor any guarantees will contain any provisions that afford holders protection against the issuer or, if applicable, the guarantor incurring unsecured indebtedness or engaging in certain reorganizations or transactions. As a result, an issuer could become highly leveraged.
Events of Default
With respect to any series of debt securities, “event of default” means any of the following:
| • | failure to pay the principal of, or any premium on, any debt security of that series when due; |
| • | failure to pay the interest or any additional amount on any debt security of that series when due and the continuation of that failure for 30 days; |
| • | if that series of debt securities is guaranteed, the cessation of any guarantee of any debt security of that series to be in full force and effect, the declaration that any guarantee of such debt securities is null and void and unenforceable, the finding that any guarantee of such debt securities is invalid or the denial by the guarantor of its liability under its guarantee of such debt securities (other than by reason of the release of the guarantor in accordance with the terms of the applicable indenture); |
| • | failure by the issuer or, if applicable, the guarantor to comply with any of its other covenants or agreements contained in the applicable indenture and the continuation of that failure for 90 days after written notice of that failure is given to such issuer or, if applicable, guarantor from the applicable trustee (or to such issuer and, if applicable, guarantor and that trustee from the holders of at least 25% in principal amount of the outstanding debt securities of that series); |
| • | certain events of bankruptcy, insolvency or reorganization relating to the issuer or, if applicable, guarantor; |
| • | if that series of debt securities is convertible or exchangeable into Class A ordinary shares of Accenture plc or any other securities or property, default in the delivery of any such Class A ordinary shares, together with cash in lieu of fractional shares, or other securities or property, as applicable, when required to be delivered upon conversion or exchange of any debt security of that series, and the continuation of such default for 10 business days; and |
| • | any other event of default provided with respect to debt securities of that series that is described in an applicable prospectus supplement (Section 6.01 of the indentures). |
If there is a continuing event of default with respect to any outstanding series of debt securities, the applicable trustee or the holders of at least 25% of the outstanding principal amount of the debt securities of that series may require the issuer or, if applicable, the guarantor to pay immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and accrued and unpaid interest, if any, on all debt securities of that series. However, at any time after that
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trustee or the holders, as the case may be, declare an acceleration with respect to debt securities of any series, but before the applicable person has obtained a judgment or decree for payment of the money, the holders of a majority in principal amount of the outstanding debt securities of that series may, under certain conditions, cancel such acceleration if (i) all events of default (other than the non-payment of accelerated principal) with respect to such debt securities have been cured or (ii) all such events of default have been waived, each as provided in the applicable indenture. (Section 6.01 of the indentures). For information as to waiver of defaults, see “ —Modification and Waiver.” The particular provisions relating to acceleration of the maturity of a portion of the principal amount of such debt securities that are discount securities triggered by an event of default shall be described in an applicable prospectus supplement. In the event of bankruptcy, insolvency, liquidation or a similar event, the debt securities will become due and payable immediately and without any declaration or other act on the part of any holder.
Each indenture provides that, subject to the duties of the applicable trustee to act with the required standard of care, if there is a continuing event of default, the applicable trustee need not exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities, unless those holders have offered to the applicable trustee security or indemnity reasonably satisfactory to it. (Section 7.02 of the indentures). Subject to those provisions for security or indemnification of the applicable trustee and certain other conditions, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee or exercising any trust or power that trustee holds, in each case, with respect to the debt securities of that series. (Section 6.06 of the indentures).
No holder of any debt security of any series will have any right to institute any proceeding with respect to any indenture or for any remedy thereunder unless:
| • | the applicable trustee has failed to institute the proceeding for 60 days after the holder has previously given such trustee written notice of a continuing event of default with respect to debt securities of that series; |
| • | the holders of at least 25% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable security or indemnity, to the applicable trustee to institute the proceeding as trustee; and |
| • | the applicable trustee has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request. (Section 6.04 of the indentures). |
However, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and any premium or interest on, that debt security on or after the date or dates they are to be paid as expressed in or pursuant to that debt security and to institute suit for the enforcement of any such payment. (Section 6.04 of the indentures).
Each indenture provides that the applicable trustee shall provide notice to the holders of debt securities of any series within 90 days of the occurrence of any default with respect to such debt securities known to such trustee, except that the trustee need not provide holders of such debt securities notice of any default (other than the non-payment of principal or any premium, interest or additional amounts) if such default has been cured and such trustee considers it in the interest of the holders of such debt securities not to provide that notice. (Section 6.07 of the indentures).
Consolidation and Merger
Each indenture provides that each of the issuer and the guarantor may consolidate with or merge or convert into, or convey, transfer or lease its or their properties or assets substantially as an entirety to, another person without the consent of any debt security holders if, along with certain other conditions set forth in the indentures:
| • | the issuer or guarantor, as the case may be, is the successor person; or |
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| • | the successor person (if other than the issuer or guarantor, as the case may be) formed by such consolidation or conversion or into which the issuer or guarantor, as the case may be, merges or converts or which acquires or leases the assets of the issuer or guarantor, as the case may be, substantially as an entirety: |
| a. | (i) is a corporation or other entity organized and existing under the laws of United States, any state thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the debt securities of the applicable series are first issued or Switzerland; and (ii) expressly assumes by supplemental indenture the obligations of the issuer or guarantor, as the case may be, in relation to the debt securities or such guarantee, as the case may be, and under the applicable indenture; |
| b. | immediately after giving effect to such transaction, there is no event of default and no event which, after notice or passage of time or both, would become an event of default; and |
| c. | the issuer or guarantor, as the case may be, has delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that the transaction complies with the conditions set forth in the applicable indenture. |
Notwithstanding the foregoing, (A) any conveyance, transfer or lease of assets between or among the guarantor or the issuer and its subsidiaries will not be prohibited under each indenture, and (B) each of the guarantor and the issuer may, directly or indirectly, consolidate with or merge with or into an affiliate incorporated solely for the purpose of reincorporating the guarantor or the issuer, as applicable, in another jurisdiction within the United States, any state thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the debt securities of the applicable series are first issued or Switzerland to realize tax or other benefits. (Section 11.01 of the indentures).
Depending on the facts, it is possible that a merger, transfer, lease or other transaction could be treated for U.S. federal income tax purposes as a taxable exchange by the beneficial owner of debt securities or guarantees for new securities, which could result in U.S. beneficial owners of debt securities or guarantees recognizing taxable gain or loss for U.S. federal income tax purposes and possibly holding new notes with original issue discount solely for U.S. federal income tax purposes. A merger, transfer, lease or other transaction could also have adverse tax consequences to beneficial owners of debt securities or guarantees under other tax laws to which the beneficial owners are subject.
Payment of Additional Amounts
Payments made by Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, on the debt securities or in respect of the guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of a similar nature (“Taxes”) unless Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, is required to withhold or deduct Taxes by law or the official interpretation or administration thereof.
If Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made with respect to the debt securities or the guarantees levied by or on behalf of (i) the government of Ireland or by any authority or agency therein or thereof having the power to tax, (ii) any other jurisdiction in which Accenture plc, Accenture Capital or Accenture DAC is organized or is otherwise resident for tax purposes or any political subdivision or any authority or agency therein or thereof having the power to tax, or (iii) any jurisdiction from or through which payment under or with respect to Accenture plc, Accenture Capital or Accenture DAC is made or any political subdivision or any authority or agency therein or thereof having the power to tax, in each of clauses (ii) and (iii) other than the United States in the case of U.S. dollar-denominated debt securities issued by Accenture Capital (each of clauses (i), (ii), and (iii), a “Relevant Taxing Jurisdiction”), Accenture plc, Accenture Capital or Accenture DAC, as
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applicable, will pay such additional amounts as may be necessary so that the net amount received by each holder (including additional amounts) after such withholding or deduction will not be less than the amount the holder would have received if the Taxes had not been withheld or deducted; provided that no additional amounts will be payable with respect to Taxes:
| • | that would not have been imposed but for the existence of any present or former connection between such holder or beneficial owner of the debt securities or guarantees, as applicable (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such holder or beneficial owner, if such holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein; |
| • | that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges; |
| • | payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the debt securities or the guarantees, as applicable; |
| • | that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable debt security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent: |
| a. | such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and |
| b. | at least 30 days before the first payment date with respect to which such additional amounts or Taxes shall be payable, Accenture plc, Accenture Capital or Accenture DAC, as the case may be, has notified such recipient in writing that such recipient is required to comply with such requirement; |
| • | that would not have been imposed but for the presentation of the relevant debt security or guarantee (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later; |
| • | that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the debt securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on debt securities by or on behalf of the issuer will be paid net of any FATCA Taxes imposed or required pursuant thereto; |
| • | that would not have been imposed if presentation for payment of the relevant debt security or guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made; |
| • | in the case of U.S. dollar-denominated debt securities issued by Accenture Capital, any taxes imposed by the United States or any political subdivision thereof or tax authority therein, including any U.S. withholding and backup withholding taxes; or |
| • | any combination of the foregoing items; |
nor shall additional amounts be paid with respect to any payment of the principal of or premium, if any, or interest, if any, on any debt security or any payment in respect of any guarantee to any such holder or beneficial
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owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such additional amounts had it been the holder of the debt security. For the avoidance of doubt, no additional amounts shall be payable in respect of any Taxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
If Accenture plc, Accenture Capital, Accenture DAC or a paying agent becomes aware that it will be obligated to pay additional amounts pursuant to this covenant with respect to any payment with respect to a debt security or guarantee of the debt security, Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, will deliver to the trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay such additional amounts arises after the 30th day prior to that payment date, in which case Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, shall notify the trustee promptly thereafter) an officer’s certificate of Accenture plc, Accenture Capital, or Accenture DAC stating the fact that such additional amounts will be payable pursuant to this covenant and the amount estimated to be so payable. Such officer’s certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such additional amounts to holders of the debt securities on the relevant payment date. The trustee shall be entitled to rely solely on such officer’s certificate as conclusive proof that such payments are necessary. Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, will provide the trustee with documentation reasonably satisfactory to the trustee evidencing the payment of additional amounts.
Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the debt securities or guarantees. Upon request, Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, will provide to the trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the trustee to the holders of the debt securities.
The obligations in this covenant will survive any termination or discharge of the indenture and any transfer by a holder or beneficial owner of its debt securities and will apply mutatis mutandis to any jurisdiction in which any successor person to Accenture plc, Accenture Capital, Accenture DAC or a paying agent, as applicable, is incorporated or resident for tax purposes or any jurisdiction from or through which such person makes any payment in respect of the guarantees of such debt securities and any department or political subdivision thereof or therein.
All references in this prospectus, other than under “ —Defeasance,” to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any debt securities or any payment in respect of any guarantee shall be deemed to include additional amounts to the extent that, in that context, additional amounts are, were or would be payable. (Section 4.05 of the indentures).
Optional Tax Redemption
The issuer may redeem any series of debt securities in whole, but not in part, at its option at any time prior to maturity, upon the giving of not less than 10 nor more than 60 days’ notice of tax redemption to the holders, at a redemption price equal to the principal amount plus accrued and unpaid interest, if any, to the redemption date (except in the case of discounted debt securities, which may be redeemed at the redemption price specified by the terms of each series of such debt securities), if:
| • | the issuer determines that, as a result of any change in, or amendment to the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction, or any change in the official application, administration, or written interpretation of such laws, regulations or rulings, which change |
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| or amendment becomes effective or, in the case of an interpretation, is announced, on or after the issue date of the applicable debt securities or guarantee, the issuer, the guarantor or any successor to the issuer or guarantor, as applicable, would be required to pay additional amounts (as described under “ —Payment of Additional Amounts”) with respect to that series of such debt securities or under the guarantee, as the case may be, on the next succeeding interest payment date for such debt securities and the payment of such additional amounts cannot be avoided by the use of reasonable measures available to the issuer, the guarantor or any successor to the issuer or guarantor, as applicable; or |
| • | the issuer determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Relevant Taxing Jurisdiction, which action is taken or brought on or after the issue date of the applicable debt securities or guarantee, under the laws of a jurisdiction other than a Relevant Taxing Jurisdiction, with respect to taxes imposed by such other jurisdiction, there is a substantial probability that the circumstances described above would exist. |
No notice of any such redemption may be given earlier than 90 days prior to the earliest date on which Accenture plc, Accenture Capital or Accenture DAC, as applicable, would be obligated to pay any additional amounts.
Accenture plc, Accenture Capital or Accenture DAC will also pay to each holder, or make available for payment to each such holder, on the redemption date, any additional amounts (as described under “ —Payment of Additional Amounts”) resulting from the payment of such redemption price by it. Prior to the delivery of any notice of redemption, Accenture plc, Accenture Capital or Accenture DAC will deliver to the trustee (i) an officer’s certificate stating that it is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred, and (ii) an opinion of independent counsel to the effect that there has been such change or amendment that would entitle the issuer to redeem the debt securities under the indenture. The trustee will accept such officer’s certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the holders of the securities being redeemed. The foregoing will apply, mutatis mutandis, to any jurisdiction in which any successor to Accenture plc, Accenture Capital or Accenture DAC is incorporated or organized or tax resident or any political subdivision or taxing authority or agency thereof or therein, provided that if on the date of the succession the taxing jurisdiction is not already a Relevant Taxing Jurisdiction, the change or amendment of law becomes effective (or the announcement of the official interpretation is announced) after that date. (Section 3.02 of the indentures).
Defeasance
Defeasance and Discharge. Unless the debt securities of any series provide otherwise, the issuer and, if applicable, the guarantor may be discharged from any and all obligations in respect of the debt securities of that series and any related guarantee, as applicable (except for certain obligations to register the transfer or exchange of debt securities of that series, to replace stolen, destroyed, lost or mutilated debt securities of that series, to maintain paying agencies, to execute and furnish definitive securities evidenced by temporary securities, to return moneys deposited with or paid to the trustee or any paying agent remaining unclaimed for three years, to compensate and indemnify the applicable trustee or to furnish such trustee (if that trustee is not the registrar) with the names and addresses of holders of debt securities of that series). This discharge, referred to as defeasance, will occur only if, among other things:
| • | the issuer or, if applicable, the guarantor or the issuer together with the guarantor irrevocably deposits or deposit with the applicable trustee, in trust, money and/or securities of the United States or the other government which issues the currency in which the debt securities of that series are payable or securities of agencies backed by the full faith and credit of the United States or such other government, which, through the payment of interest and principal in accordance with their terms, will provide, in the opinion of a nationally recognized public accounting firm, enough money to pay each installment of principal of, and any premium and interest on, and any additional amounts known to be payable at the |
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| time of such defeasance and discharge and any mandatory sinking fund payments in respect of, the debt securities of that series on the applicable due dates for those payments in accordance with the terms of those debt securities; and |
| • | the issuer or, if applicable, the guarantor delivers or deliver to the applicable trustee an opinion of counsel confirming that the beneficial owners of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the discharge had not occurred. |
That opinion must state that the issuer or, if applicable, the guarantor has or have received from the U.S. Internal Revenue Service a ruling or, since the date of execution of the applicable indenture, there has been a change in the applicable U.S. federal income tax law, in any case, in support of that opinion. (Sections 13.02 and 13.04 of the indentures).
In addition, the issuer or, if applicable, the guarantor or the issuer together with the guarantor may also obtain a discharge of the applicable indenture with respect to all debt securities issued under that indenture and any related guarantee, as applicable, by depositing with the applicable trustee, in trust, enough money to pay all amounts due on the debt securities on the date those payments are due or upon redemption of all of those debt securities, so long as those debt securities are by their terms to become due and payable within one year or are to be called for redemption within one year. (Section 12.01 of the indentures).
Defeasance of Certain Covenants and Certain Events of Default. Unless the debt securities of any series provide otherwise, upon compliance with certain conditions:
| • | the issuer and, if applicable, the guarantor may omit to comply with any provision of the applicable indenture (except for certain obligations to register the transfer or exchange of debt securities of that series, to replace stolen, destroyed, lost or mutilated debt securities of that series, to maintain paying agencies, to execute and furnish definitive securities evidenced by temporary securities, to return moneys deposited with or paid to the trustee or any paying agent on any debt security and not applied to payments on the debt securities but remaining unclaimed for three years, to punctually pay the principal of and premium or interest, if any, on the debt securities, to deliver to the trustee an annual statement as to default, to adhere to the covenants with respect to payment on the debt securities on default, to adhere to the resignation or removal procedures regarding the trustee, to compensate and indemnify the applicable trustee or to furnish that trustee (if that trustee is not the registrar) with the names and addresses of holders of debt securities of that series), including the covenant described under “ — Consolidation and Merger”; and |
| • | any omission to comply with those covenants will not constitute an event of default with respect to the debt securities of that series (“covenant defeasance”). (Sections 13.03 and 13.04 of the indentures). |
The conditions include, among other things:
| • | irrevocably depositing with the applicable trustee, in trust, money and/or securities of the government which issues the currency in which the debt securities of that series are payable or securities of agencies backed by the full faith and credit of that government, which, through the payment of interest and principal in accordance with their terms, will provide, in the opinion of a nationally recognized public accounting firm, enough money to pay each installment of principal of, any premium and interest on, and any additional amounts known to be payable at the time of such covenant defeasance and any mandatory sinking fund payments in respect of, the debt securities of that series on the applicable due dates for those payments in accordance with the terms of those debt securities; and |
| • | delivering to the applicable trustee an opinion of counsel to the effect that the beneficial owners of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax |
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| purposes as a result of the covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the covenant defeasance had not occurred. (Section 13.04 of the indentures). |
Covenant Defeasance and Certain Other Events of Default. If the issuer or, if applicable, the guarantor or the issuer together with the guarantor exercises or exercise the option to effect a covenant defeasance with respect to the debt securities of any series as described above and the debt securities of that series are thereafter declared due and payable because of an event of default (other than an event of default caused by failing to comply with the covenants that are defeased), the amount of money and securities it has or they have deposited with the applicable trustee would be sufficient to pay amounts due on the debt securities of that series on their respective due dates but may not be sufficient to pay amounts due on the debt securities of that series at the time of acceleration resulting from that event of default. However, the issuer and, if applicable, the guarantor would remain liable for any shortfall.
Modification and Waiver
Each indenture provides that the issuer and, if applicable, the guarantor may enter into supplemental indentures with the applicable trustee without the consent of the holders of debt securities to:
| • | document the fact that a successor entity has assumed the issuer’s or, if applicable, the guarantor’s obligations; |
| • | add covenants or events of default or to surrender any right or power conferred upon the issuer or, if applicable, the guarantor for the benefit of the holders of debt securities; |
| • | add or change such provisions as are necessary to permit the issuance of global debt securities; |
| • | cure any ambiguity or correct any inconsistency in the indenture or in the terms of the debt securities as shall not adversely affect the interests of the holders of debt securities in any material respect; |
| • | conform the applicable indenture or the terms of the debt securities or guarantees to any terms set forth in this prospectus or an applicable prospectus supplement; |
| • | document the fact that a successor trustee has been appointed; or |
| • | establish the forms and terms of debt securities of any series. (Section 10.01 of the indentures). |
The issuer and, if applicable, the guarantor may enter into a supplemental indenture to modify an indenture with the consent of the applicable trustee and the holders of at least a majority in principal amount of outstanding debt securities of each series affected by such supplemental indenture. However, the issuer and, if applicable, the guarantor may not modify an indenture without the consent of the holders of all then-outstanding debt securities of the affected series issued under that indenture to:
| • | extend the maturity date of, or change the due date of any installment of principal of or interest on, or payment of additional amounts with respect to, the debt securities of that series; |
| • | reduce the principal amount of, or any premium payable or interest rate on, the debt securities of that series; |
| • | reduce the amount due and payable upon acceleration or make payments thereon payable in any currency other than that provided in that debt security; |
| • | make any change that adversely affects the right, if any, to convert or exchange any debt security for shares or other securities or property in accordance with its terms; |
| • | impair the right to institute suit for the enforcement of any such payment on or after its due date; or |
| • | reduce the percentage in principal amount of outstanding debt securities of any series, the consent of whose holders is necessary to effect any such modification or amendment of the indenture, for waiver of compliance with certain covenants and provisions in the indenture or for waiver of certain defaults. (Section 10.02 of the indentures). |
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The holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive any past default under the applicable indenture with respect to that series, except a default in the payment of the principal of or any premium or any interest on, any debt security of that series or in respect of a provision which under the applicable indenture cannot be modified or amended without the consent of the holder of each outstanding debt security of that affected series. (Section 6.09 of the indentures).
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global certificates that the issuer will deposit with a depositary identified in an applicable prospectus supplement. Unless and until it is exchanged in whole or in part for the individual debt securities that it represents, a global security may not be transferred except as a whole:
| • | by the applicable depositary to a nominee of the depositary; |
| • | by any nominee to the depositary itself or another nominee; or |
| • | by the depositary or any nominee to a successor depositary or any nominee of the successor. |
An applicable prospectus supplement will describe the specific terms of the depositary arrangement with respect to a series of debt securities. We anticipate that the following provisions will generally apply to depositary arrangements.
When a global security is issued, the depositary for the global security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual debt securities represented by that global security to the accounts of persons that have accounts with the depositary (“participants”). Those accounts will be designated by the dealers, underwriters or agents with respect to the underlying debt securities or by the issuer if those debt securities are offered and sold directly by the issuer. Ownership of beneficial interests in a global security will be limited to participants or persons that may hold interests through participants. For interests of participants, ownership of beneficial interests in the global security will be shown on records maintained by the applicable depositary or its nominee. For interests of persons other than participants, that ownership information will be shown on the records of participants. Transfer of that ownership will be effected only through those records. The laws of some states require that certain purchasers of securities take physical delivery of securities in definitive form. These limits and laws may impair our ability to transfer beneficial interests in a global security.
As long as the depositary for a global security, or its nominee, is the registered owner of that global security, the depositary or nominee will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture. Except as provided below, owners of beneficial interests in a global security:
| • | will not be entitled to have any of the underlying debt securities registered in their names; |
| • | will not receive or be entitled to receive physical delivery of any of the underlying debt securities in definitive form; and |
| • | will not be considered the owners or holders under the indenture relating to those debt securities. |
Payments of the principal of, any premium on and any interest on individual debt securities represented by a global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee as the registered owner of the global security representing such debt securities. No issuer, guarantor, trustee, paying agent or registrar for the debt securities will be responsible for any aspect of the records relating to or payments made by the depositary or any participants on account of beneficial interests in the global security.
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It is expected that the depositary or its nominee, upon receipt of any payment of principal, any premium or interest relating to a global security representing any series of debt securities, immediately will credit participants’ accounts with the payments. Those payments will be credited in amounts proportional to the respective beneficial interests of the participants in the principal amount of the global security as shown on the records of the depositary or its nominee. It is also expected that payments by participants to owners of beneficial interests in the global security held through those participants will be governed by standing instructions and customary practices. This is now the case with securities held for the accounts of customers registered in “street name.” Those payments will be the sole responsibility of those participants.
If the depositary for a series of debt securities is at any time unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed within 90 days, the issuer will issue individual debt securities of that series in exchange for the global security or securities representing that series. In addition, the issuer may at any time in its sole discretion determine not to have any debt securities of a series represented by one or more global securities. In that event, the issuer will issue individual debt securities of that series in exchange for the global security or securities. Furthermore, if specified in an applicable prospectus supplement, an owner of a beneficial interest in a global security may, on terms acceptable to the issuer, the trustee and the applicable depositary, receive individual debt securities of that series in exchange for those beneficial interests. The foregoing is subject to any limitations described in an applicable prospectus supplement. In any such instance, the owner of the beneficial interest will be entitled to physical delivery of individual debt securities equal in principal amount to the beneficial interest and to have the debt securities registered in its name. Those individual debt securities will be issued in any authorized denominations.
Guarantees
Under the guarantee, the applicable guarantor will fully and unconditionally guarantee the due and punctual payment of the principal, interest (if any), premium (if any) and all other amounts due on the applicable debt securities and under the indenture when the same shall become due and payable, whether at maturity, pursuant to mandatory or optional redemption or repayments, by acceleration or otherwise, in each case after any applicable grace periods or notice requirements, according to the terms of the applicable debt securities.
The obligations of the guarantor under the guarantee will be full and unconditional, joint and several, regardless of the enforceability of the applicable debt securities, and will not be discharged until all obligations under those debt securities and the applicable indenture are satisfied. Holders of the applicable debt securities may proceed directly against the guarantor under the applicable guarantee if an event of default affecting those debt securities occurs without first proceeding against the issuer.
Conversion Rights
An applicable prospectus supplement will describe the terms and conditions, if any, on which debt securities being offered are convertible into Class A ordinary shares of Accenture plc or other securities. Such terms will include the conversion price, the conversion period, provisions as to whether conversion will be at the option of the issuer or the holder, the events requiring an adjustment of the conversion price and provisions affecting conversion in the event of the redemption of such debt securities.
Regarding the Trustee
The issuers have commercial deposits and custodial arrangements with The Bank of New York Mellon Trust Company, N.A. (“BNY”) and may have borrowed money from BNY in the normal course of business. The issuers may enter into similar or other banking relationships with BNY in the future in the normal course of business. BNY may also act as trustee with respect to other debt securities issued by the issuers.
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BNY will be serving as the trustee under the indentures. Consequently, if an actual or potential event of default occurs with respect to the debt securities, BNY may be considered to have a conflicting interest for purposes of the Trust Indenture Act. In that case, BNY may be required to resign under one or more indentures, and the applicable issuer and, if applicable, the applicable guarantor would be required to appoint a successor trustee. For this purpose, a “potential” event of default means an event that would be an event of default if the requirements for giving us default notice or for the default having to exist for a specific period of time were disregarded.
Governing Law
The debt securities, the guarantees and the indentures will be governed by and construed in accordance with the laws of the State of New York.
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DESCRIPTION OF PREFERENCE SHARES OF ACCENTURE PLC
In this description, references to “holders” mean those who own preference shares of Accenture plc registered in their own names, on the books that the registrar maintains for this purpose, and not those who own beneficial interests in preference shares of Accenture plc registered in “street name” or issued in book-entry form and held through one or more depositaries.
The description set forth below is only a summary and is not complete. For more information regarding the preference shares of Accenture plc which may be offered by this prospectus, see the documents incorporated by reference in this prospectus, the applicable prospectus supplement, Accenture plc’s Amended and Restated Memorandum and Articles of Association (the “Accenture plc Constitution”), which is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part, and any certificate of designations or other instrument establishing a series of preference shares, which will be filed with the SEC as an exhibit to or incorporated by reference in such registration statement at or prior to the time of the issuance of that series of preference shares.
The Accenture plc Constitution authorizes Accenture plc to designate and issue undesignated shares as preference shares, in one or more classes or series, with or without voting rights attached to them, with the number of shares of each class or series and the powers, preferences, rights and limitations thereof (which may include preferences regarding dividends and liquidation rights over the Class A ordinary shares of Accenture plc) to be determined by Accenture plc’s board of directors at the time of issuance of the relevant preference shares. Accenture plc is authorized to issue up to 2,000,000,000 undesignated shares with a nominal value of $0.0000225 per share, all of which may be designated as preference shares. The Accenture plc board of directors is currently authorized to issue up to 20% of Accenture plc’s issued share capital as of December 4, 2023 and Accenture plc expects to propose the renewal of this authorization on a regular basis at its annual general meetings in subsequent years, which is currently the customary practice in Ireland. This current authority will expire 18 months from January 31, 2024.
Irish law does not recognize fractional shares held of record; accordingly, Accenture plc’s articles of association do not provide for the issuance of fractional Accenture plc shares, and the official Irish register of Accenture plc will not reflect any fractional shares.
We will include the specific terms of each series of the preference shares of Accenture plc being offered in an applicable prospectus supplement.
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DESCRIPTION OF CLASS A ORDINARY SHARES OF ACCENTURE PLC
In this description, references to “holders” mean those who own Class A ordinary shares of Accenture plc registered in their own names, on the books that the registrar maintains for this purpose, and not those who own beneficial interests in Class A ordinary shares of Accenture plc registered in street name or issued in book-entry form and held through one or more depositaries.
The description of the Class A ordinary shares of Accenture plc is incorporated in this prospectus by reference to Exhibit 4.1 to the Annual Report on Form 10-K for the year ended August 31, 2023, filed with the SEC on October 12, 2023, including any amendment or report filed for the purposes of updating such description. The Class A ordinary shares of Accenture plc are listed on the New York Stock Exchange under the symbol “ACN.”
For more information regarding the rights attached to the Class A ordinary shares of Accenture plc which may be offered by this prospectus, see the applicable prospectus supplement, the Accenture plc Constitution, which is incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part, and any other instrument relating to the Class A ordinary shares of Accenture plc filed with the SEC as an exhibit to or incorporated by reference in such registration statement at or prior to the time of the issuance of the Class A ordinary shares of Accenture plc.
The Accenture plc Constitution authorizes Accenture plc to allot and issue up to 20,000,000,000 Class A ordinary shares, with a nominal value of $0.0000225 per share, and the board of directors is authorized to grant rights to subscribe for or grant rights to convert or exchange any security into or for, its Class A ordinary shares, which shall have the same rights, preferences and limitations as its existing Class A ordinary shares. The Accenture plc board of directors is currently authorized to issue up to 20% of Accenture plc’s issued share capital as of December 4, 2023 and Accenture plc expects to propose the renewal of this authorization on a regular basis at its annual general meetings in subsequent years, which is currently the customary practice in Ireland. This current authority will expire 18 months from January 31, 2024.
Irish law does not recognize fractional shares held of record; accordingly, Accenture plc’s articles of association do not provide for the issuance of fractional Accenture plc shares, and the official Irish register of Accenture plc will not reflect any fractional shares.
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DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS OF ACCENTURE PLC
Accenture plc may issue share purchase contracts, representing contracts obligating holders to purchase from Accenture plc, and obligating Accenture plc to sell to the holders, a specified number of its Class A ordinary shares at a future date or dates. The price per share and the number of Class A Ordinary Shares of Accenture plc may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific formula set forth in the share purchase contracts. The share purchase contracts may be issued separately or as a part of share purchase units consisting of a share purchase contract and, as security for the holder’s obligations to purchase the Class A Ordinary Shares of Accenture plc:
| • | preference shares of Accenture plc; or |
| • | debt obligations of third parties, including Accenture Capital debt securities, Accenture DAC debt securities and U.S. Treasury securities. |
Subject to applicable law, the share purchase contracts may require Accenture plc to make periodic payments to the holders of the share purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The share purchase contracts may require holders to secure their obligations in a specified manner and, in certain circumstances, Accenture plc may deliver newly issued prepaid share purchase contracts upon release to a holder of any collateral securing such holder’s obligations under the original share purchase contract.
An applicable prospectus supplement will describe the terms of any share purchase contracts or share purchase units and, if applicable, prepaid share purchase contracts.
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DESCRIPTION OF WARRANTS OF ACCENTURE PLC
Accenture plc may from time to time issue warrants, in one or more series, to purchase Accenture Capital debt securities, Accenture DAC debt securities, co-issued debt securities or our equity securities. Accenture plc may offer warrants separately or together with one or more additional warrants, debt securities, preference shares or ordinary shares, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. If Accenture plc issues warrants as part of a unit, the accompanying supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants’ expiration date.
Below is a description of certain general terms and provisions of the warrants that Accenture plc may offer. Further terms of the warrants will be described in the applicable prospectus supplement. You should read the particular terms of any warrants Accenture plc offers described in the related prospectus supplement, together with any warrant agreement relating to the particular warrant, for provisions that may be important to you.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
| • | the specific designation and aggregate number of, and the price at which Accenture plc will issue, the warrants; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| • | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
| • | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit; |
| • | certain applicable U.S. federal income tax considerations; |
| • | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
| • | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
| • | the designation, aggregate principal amount, currency and terms of the debt securities purchasable upon exercise of the warrants, and the price at which such principal amount may be purchased; |
| • | the number of preference shares, the number of depositary shares or the number of ordinary shares purchasable upon exercise of a warrant and the price at which those shares may be purchased; |
| • | the designation and terms of the preference shares or ordinary shares; |
| • | if applicable, the designation and terms of the debt securities, preference shares or ordinary shares with which the warrants are issued and the number of warrants issued with each security; |
| • | if applicable, the date from and after which the warrants and the related debt securities, preference shares or ordinary shares will be separately transferable; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | information with respect to book-entry procedures, if any; |
| • | the antidilution or other adjustment provisions of the warrants, if any; |
| • | any redemption or call provisions; |
| • | whether the warrants are to be sold separately or with other securities as parts of units; and |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
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DESCRIPTION OF DEPOSITARY SHARES OF ACCENTURE PLC
Accenture plc may issue shares of preference shares either separately or represented by depositary shares. Accenture plc may also, at its option, elect to offer fractional interests in preference shares instead of a full preference share. If exercising this option, depositary receipts will be issued for depositary shares, each of which will represent a fraction of a share of a particular class or series of preference shares, as described in the applicable prospectus supplement and/or other offering material.
Any class or series of preference shares represented by depositary shares will be deposited under a deposit agreement between Accenture plc and the depositary. The prospectus supplement and/or other offering material relating to a series of depositary shares will set forth the name and address of the depositary for the depositary shares and summarize the material provisions of the deposit agreement. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable fraction of a preference share represented by such depositary share, to all the rights and preferences of the preference shares represented by such depositary share, including dividend and liquidation rights and any right to convert or exchange the preference shares into other securities.
The applicable prospectus supplement will describe the particular terms of any depositary shares Accenture plc offers. You should review the documents pursuant to which the depositary shares will be issued, which will be described in more detail in the applicable prospectus supplement.
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DESCRIPTION OF UNITS OF ACCENTURE PLC
Accenture plc may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit may also include debt obligations or other securities of third parties not affiliated with us, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The applicable unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or any time before a specified date.
The applicable prospectus supplement will describe the terms of the units offered pursuant to it, including one or more of the following:
| • | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
| • | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
| • | the terms of any agreements governing the units; |
| • | certain U.S. federal income tax considerations relevant to the units; and |
| • | whether the units will be issued in fully registered or global form. |
The preceding description and any description of units in the applicable prospectus supplement does not propose to be complete and is subject to and is qualified in its entirety by reference to each unit agreement and, if applicable, collateral arrangements relating to such units.
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Accenture plc, Accenture Capital or Accenture DAC may sell the securities covered by this prospectus in any of the following ways (or in any combination):
| • | through underwriters, dealers or remarketing firms; |
| • | directly to one or more purchasers, including to a limited number of institutional purchasers; |
| • | through agents; |
| • | any combination of the distribution methods above; or |
| • | any other methods of distribution described in an applicable prospectus supplement. |
Any such dealer or agent, in addition to any underwriter, may be deemed to be an underwriter within the meaning of the Securities Act. Any discounts or commissions received by an underwriter, dealer, remarketing firm or agent on the sale or resale of securities may be considered by the SEC to be underwriting discounts and commissions under the Securities Act.
In addition, Accenture plc, Accenture Capital or Accenture DAC may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If an applicable prospectus supplement so indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and such applicable prospectus supplement, sell securities covered by this prospectus and such applicable prospectus supplement. If so, the third party may use securities borrowed from Accenture plc, Accenture Capital, Accenture DAC or others to settle such sales and may such securities to close any related short positions. Accenture plc, Accenture Capital or Accenture DAC may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities covered by this prospectus and such applicable prospectus supplement.
The terms of the offering of the securities with respect to which this prospectus is being delivered will be set forth in the applicable prospectus supplement or supplements and will include, among other things:
| • | the type of and terms of the securities; |
| • | the price of the securities; |
| • | the proceeds to us from the sale of the securities; |
| • | the names of the securities exchanges, if any, on which the securities are listed; |
| • | the names of any underwriters, dealers, remarketing firms or agents and the amount of securities underwritten or purchased by each of them; |
| • | any over-allotment options under which underwriters may purchase additional securities; |
| • | any underwriting discounts, agency fees or other compensation to underwriters or agents; and |
| • | any discounts or concessions which may be allowed or reallowed or paid to dealers. |
If underwriters are used in the sale of securities, those securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters acting alone. Unless otherwise set forth in an applicable prospectus supplement, the obligations of the underwriters to purchase the securities described in an applicable prospectus supplement will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of those securities if any are purchased by them. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
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If the dealers acting as principals are used in the sale of any securities, those securities will be acquired by the dealers, as principals, and may be resold from time to time in one or more transactions at varying prices to be determined by the dealer at the time of resale. The name of any dealer and the terms of the transactions will be set forth in an applicable prospectus supplement with respect to the securities being offered.
Securities may also be offered and sold, if so indicated in an applicable prospectus supplement in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms, which we refer to as the “remarketing firms,” acting as principals for their own accounts or as our agents, as applicable. Any remarketing firm will be identified and the terms of its agreement, if any, with Accenture plc, Accenture Capital or Accenture DAC and its compensation will be described in an applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term is defined in the Securities Act in connection with the securities remarketed thereby.
The securities may be sold directly by Accenture plc, Accenture Capital or Accenture DAC, or through agents designated by one of them from time to time. In the case of securities sold directly by Accenture plc, Accenture Capital or Accenture DAC, no underwriters or agents would be involved. Any agents involved in the offer or sale of the securities in respect of which this prospectus is being delivered, and any commissions payable by Accenture plc, Accenture Capital or Accenture DAC to such agents, will be set forth in an applicable prospectus supplement. Unless otherwise indicated in an applicable prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
Accenture plc, Accenture Capital or Accenture DAC may authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase the securities to which this prospectus and the applicable prospectus supplement relate from us at the public offering price set forth in an applicable prospectus supplement plus, if applicable, accrued interest, pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Those contracts will be subject only to those conditions set forth in an applicable prospectus supplement, and an applicable prospectus supplement will set forth the commission payable for solicitation of those contracts.
Agents, dealers, underwriters and remarketing firms may be entitled, under agreements entered into with one or more of Accenture plc, Accenture Capital or Accenture DAC, to indemnification by one or more of Accenture plc, Accenture Capital or Accenture DAC against certain civil liabilities, including liabilities under the Securities Act, or to contribution to payments they may be required to make in respect thereof. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary course of business.
Unless otherwise indicated in an applicable prospectus supplement, all securities offered by this prospectus, other than the Class A ordinary shares of Accenture plc, which are listed on the New York Stock Exchange, will be new issues with no established trading market. Accenture plc, Accenture Capital or Accenture DAC, as applicable, may elect to list any of the securities on one or more exchanges, but unless otherwise specified in an applicable prospectus supplement, shall not be obligated to do so. In addition, underwriters will not be obligated to make a market in any securities. No assurance can be given regarding the activity of trading in, or liquidity of, any securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying securities so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
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Unless otherwise indicated in an applicable prospectus supplement, the validity of the securities under Irish law will be passed upon for us by Arthur Cox LLP and certain matters with respect to New York law will be passed upon for us by Gibson, Dunn & Crutcher LLP. Any underwriters, dealers or agents may be advised about other issues relating to any offering by their own legal counsel.
The consolidated financial statements of Accenture plc as of August 31, 2023 and 2022, and for each of the years in the three-year period ended August 31, 2023, and management’s assessment of the effectiveness of internal control over financial reporting as of August 31, 2023 have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
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Accenture plc
Guarantees
Class A Ordinary Shares
Preference Shares
Share Purchase Contracts
Share Purchase Units
Warrants
Depositary Shares
Units
Accenture Capital
Debt Securities
Accenture DAC
Debt Securities
September 30, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of the estimated expenses to be incurred in connection with the issuance and distribution of the securities being registered, other than underwriting discounts, commissions and transfer taxes, to be paid by the Registrant. The following statement of estimated expenses has been used to demonstrate the expense of an offering and does not represent an estimate of the aggregate amount of securities that may be registered or distributed pursuant to this registration statement because such amount is unknown at this time. Information regarding estimated expenses of issuance and distribution of each identified class of securities being registered will be provided at the time of issuance thereof.
| Securities and Exchange Commission Registration Fee |
$ | * | ||
| Listing Fees |
$ | (1 | ) | |
| FINRA Filing Fees |
$ | * | ||
| Printing Expenses |
$ | (1 | ) | |
| Legal Fees and Expenses |
$ | (1 | ) | |
| Accounting Fees and Expenses |
$ | (1 | ) | |
| Transfer Agent Fees and Expenses |
$ | (1 | ) | |
| Rating Agency Fees |
$ | (1 | ) | |
| Trustee’s and Depositary’s Fees and Expenses |
$ | (1 | ) | |
| Miscellaneous |
$ | (1 | ) | |
| Total |
$ | (1 | ) |
| * | Omitted because the SEC registration fee is being deferred pursuant to Rule 456(b) and calculated in connection with the offering of securities under this registration statement pursuant to Rule 457(r). |
| (1) | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Accenture plc
If an officer (within the meaning of Irish law, which includes the directors. the secretary and assistant secretaries) of an Irish company is found to have breached his or her fiduciary duties to that company, he or she may be held personally liable to the company in respect of that breach of duty. Accenture plc’s articles of association contain indemnification and expense advancement provisions for persons who are not officers (within the meaning of Irish law) of Accenture plc. Accenture plc’s articles of association also confer a more limited indemnity on its officers (within the meaning of Irish law) for certain costs and discharge the liability of such officers where judgment is given in favor of any such officer in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because any such officer acted honestly and reasonably and ought fairly to be excused. This restriction does not apply to executives or officers who are not officers (within the meaning of Irish law) of Accenture plc. Any provision which seeks to indemnify an officer (within the meaning of Irish law) of an Irish company over and above this shall be void under Irish law, whether contained in its articles of association or any contract between such officer and the company.
Under Irish law, Accenture plc may not exempt its officers (within the meaning of Irish law) from liability for negligence or a breach of duty. However, where a breach of duty has been established, such officers may be statutorily exempted by an Irish court from personal liability for negligence or breach of duty if, among other things, the court determines that they have acted honestly and reasonably, and that they may fairly be excused as a result.
II-1
In accordance with Irish law, Accenture plc has taken out directors and officers liability insurance, as well as other types of insurance, for our directors and officers.
In addition, Accenture Inc., a Delaware corporation and a direct, controlled subsidiary of Accenture plc, has entered into indemnification agreements with each of the Accenture plc’s directors providing for the indemnification of, and advancement of expenses to, these persons.
Accenture Capital
Accenture Capital was organized under and is subject to the Delaware General Corporation Law. Delaware law provides that officers and directors may receive indemnification from their corporations for certain actual or threatened lawsuits. Delaware law sets out the standard of conduct which the officers and directors must meet in order to be indemnified, the parties who are to determine whether the standard has been met, and the types of expenditures which will be indemnified. Delaware law further provides that a corporation may purchase indemnification insurance, such insurance providing indemnification for the officers and directors whether or not the corporation would have the power to indemnify them against such liability under the provisions of Delaware law.
Article IV of Accenture Capital’s Bylaws (the “Accenture Capital Bylaws”) provides that, the extent permitted by the Delaware General Corporation Law, Accenture Capital will indemnify its current or former directors or officers and may, at the discretion of its board of directors, indemnify any of its current or former employees or agents against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred him or her in connection with any threatened, pending or completed action, suit or proceeding brought by the right of Accenture Capital or otherwise, to which he or she was or is a party by reason of his or her current or former position with Accenture Capital or by reason of the fact that he or she is or was serving, at the request of Accenture Capital, as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Furthermore, Accenture Capital is covered by insurance which will reimburse it within the policy limits for amounts it is obligated to pay in lawsuits involving officers and directors serving in such capacities in which the damages, judgments, settlements, costs, charges or expenses incurred in connection with the defense of the action, suit or proceeding are reimbursable pursuant to law and the Accenture Capital Bylaws.
Accenture Capital expects that any underwriting agreement or distribution agreement relating to the securities will provide for indemnification of directors and officers of Accenture Capital by the underwriters or agents, as the case may be, against certain liabilities.
Accenture Capital has also entered into separate indemnification agreements with certain of its officers, which agreements provide specific contractual assurance with respect to the existing indemnification and expense advancement rights extended to such officers and directors under Article IV of the Accenture Capital Bylaws. Specifically, the indemnification agreements provide assurance that no future amendment to or revocation of the Accenture Capital Bylaws will adversely affect any existing right of an officer or director with respect to any event that occurred prior to such amendment or revocation (regardless of when any proceeding related to such event is first threatened, commenced or completed).
The directors of Accenture Capital will also be entitled to cover pursuant to the Accenture group’s directors’ and officers’ liability insurance.
Accenture DAC
If an officer (within the meaning of Irish law, which includes the directors. the secretary and assistant secretaries) of an Irish company is found to have breached his or her fiduciary duties to that company, he or she may be held personally liable to the company in respect of that breach of duty. Accenture DAC’s articles of association
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contain indemnification and expense advancement provisions for persons who are not officers (within the meaning of Irish law) of Accenture DAC. Accenture DAC’s articles of association also confer a more limited indemnity on its officers (within the meaning of Irish law) for certain costs and discharge the liability of such officers where judgment is given in favor of any such officer in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because any such officer acted honestly and reasonably and ought fairly to be excused. This restriction does not apply to executives or officers who are not officers (within the meaning of Irish law) of Accenture DAC. Any provision which seeks to indemnify an officer (within the meaning of Irish law) of an Irish company over and above this shall be void under Irish law, whether contained in its articles of association or any contract between such officer and the company.
Under Irish law, Accenture DAC may not exempt its officers (within the meaning of Irish law) from liability for negligence or a breach of duty. However, where a breach of duty has been established, such officers may be statutorily exempted by an Irish court from personal liability for negligence or breach of duty if, among other things, the court determines that they have acted honestly and reasonably, and that they may fairly be excused as a result.
The directors of Accenture DAC will also be entitled to cover pursuant to the Accenture group’s directors’ and officers’ liability insurance.
Item 16. Exhibits.
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| * | To be filed as an exhibit to a Current Report on Form 8-K and incorporated by reference or by post-effective amendment. |
Item 17. Undertakings.
Each undersigned registrant hereby 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, as amended (the “Securities Act”); |
| (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 the 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 reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table in the effective registration statement; and |
| (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 the registration statement; |
provided, however, that the undertakings set forth in paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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. |
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| (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 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 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 in 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 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (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. |
| (6) | That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement 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. |
| (7) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses |
II-5
| 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 and will be governed by the final adjudication of such issue. |
| (8) | 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 of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act of 1939. |
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Pursuant to the requirements of the Securities Act, Accenture plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, Illinois, on September 30, 2024.
| ACCENTURE PLC | ||
| By: | /s/ Joel Unruch | |
| Name: Joel Unruch | ||
| Title: General Counsel & Corporate Secretary | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Julie Sweet, KC McClure, Joel Unruch and Angie Park and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capacities, in connection with the Registration Statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the Registrant (1) any and all amendments or supplements (including any and all stickers and post-effective amendments) to the Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (2) any and all additional registration statements, and any and all amendments thereto, relating to the same offering of securities as those that are covered by the Registration Statement that are filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on September 30, 2024.
| Signature |
Title | |||
| /s/ Julie Sweet JULIE SWEET |
Chief Executive Officer, Chair of the Board and Director (principal executive officer) | |||
| /s/ KC McClure KC MCCLURE |
Chief Financial Officer (principal financial officer) | |||
| /s/ Melissa A. Burgum MELISSA A. BURGUM |
Chief Accounting Officer (principal accounting officer) | |||
| /s/ Gilles C. Pélisson GILLES C. PÉLISSON |
Lead Director | |||
| /s/ Jamie Ardila JAIME ARDILA |
Director | |||
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| Signature |
Title | |||
| /s/ Martin Brudermüller MARTIN BRUDERMÜLLER |
Director | |||
| /s/ Alan Jope ALAN JOPE |
Director | |||
| /s/ Nancy McKinstry NANCY MCKINSTRY |
Director | |||
| /s/ Beth E. Mooney BETH E. MOONEY |
Director | |||
| /s/ Paula A. Price PAULA A. PRICE |
Director | |||
| /s/ Venkata S.M. Renduchintala VENKATA S.M. RENDUCHINTALA |
Director | |||
| /s/ Arun Sarin ARUN SARIN |
Director | |||
| /s/ Tracey T. Travis TRACEY T. TRAVIS |
Director | |||
| /S/ Joel Unruch JOEL UNRUCH |
Authorized Representative in the United States | |||
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, Accenture Capital Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, Illinois, on September 30, 2024.
| ACCENTURE CAPITAL INC. | ||
| By: | /s/ Brian J. Kowles | |
| Name: Brian J. Kowles | ||
| Title: Treasurer and Director | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Julie Sweet, KC McClure, Joel Unruch and Angie Park and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capacities, in connection with the Registration Statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the Registrant (1) any and all amendments or supplements (including any and all stickers and post-effective amendments) to the Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (2) any and all additional registration statements, and any and all amendments thereto, relating to the same offering of securities as those that are covered by the Registration Statement that are filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on September 30, 2024.
| Signature |
Title | |||
| /s/ Aaron Bradford Holmes AARON BRADFORD HOLMES |
President and Director (principal executive officer) | |||
| /s/ Brian J. Kowles BRIAN J. KOWLES |
Treasurer and Director (principal financial officer and principal accounting officer) | |||
| /S/ Sammy Awad SAMMY AWAD |
Vice President and Director | |||
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act, Accenture Global Capital DAC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, Illinois, on September 30, 2024.
| ACCENTURE GLOBAL CAPITAL DAC | ||
| By: | /s/ Brian J. Kowles | |
| Name: Brian J. Kowles | ||
| Title: Director | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Julie Sweet, KC McClure, Joel Unruch and Angie Park and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capacities, in connection with the Registration Statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the Registrant (1) any and all amendments or supplements (including any and all stickers and post-effective amendments) to the Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (2) any and all additional registration statements, and any and all amendments thereto, relating to the same offering of securities as those that are covered by the Registration Statement that are filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on September 30, 2024.
| Signature |
Title | |||
| /s/ Brian J. Kowles BRIAN J. KOWLES |
Director (principal executive officer, principal financial officer and principal accounting officer) | |||
| /s/ David Robertson DAVID ROBERTSON |
Director | |||
| /S/ Julie Spillane JULIE SPILLANE |
Director | |||
| /S/ Aidan Cowhig AIDAN COWHIG |
Director | |||
| /S/ Joel Unruch JOEL UNRUCH |
Authorized Representative in the United States | |||
II-10
Exhibit 4.3
ACCENTURE CAPITAL INC.
Company
ACCENTURE PLC
Guarantor
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
Trustee
INDENTURE
Dated as of
Debt Securities
CROSS-REFERENCE SHEET*
BETWEEN
Provisions of Sections 310 through 318(a) of the Trust Indenture Act and the within Indenture among Accenture Capital Inc., Accenture plc and The Bank of New York Mellon Trust Company, N.A., Trustee:
| 310 | (a) (1) and (2) | 7.09 | ||
| 310 | (a) (3) and (4) | Not applicable | ||
| 310 | (b) | 7.08 and 7.10 (b) | ||
| 310 | (c) | Not applicable | ||
| 311 | (a) and (b) | 7.13 | ||
| 311 | (c) | Not applicable | ||
| 312 | (a) | 5.01 and 5.02 (a) | ||
| 312 | (b) and (c) | 5.02 (b) and (c) | ||
| 313 | (a), (b)(2) and (c) | 5.04 (a) | ||
| 313 | (b) (1) | Not applicable | ||
| 313 | (d) | 5.04 (b) | ||
| 314 | (a) | 5.03 | ||
| 314 | (b) | Not applicable | ||
| 314 | (c) (1) and (2) | 16.04 | ||
| 314 | (c) (3) | Not applicable | ||
| 314 | (d) | Not applicable | ||
| 314 | (e) | 16.04 | ||
| 314 | (f) | Not applicable | ||
| 315 | (a), (c) and (d) | 7.01 | ||
| 315 | (b) | 6.07 | ||
| 315 | (e) | 6.08 | ||
| 316 | (a) (1) | 6.01 and 6.06 | ||
| 316 | (a) (2) | Omitted | ||
| 316 | (a) last sentence | 8.04 | ||
| 316 | (b) | 6.04 | ||
| 317 | (a) | 6.02 | ||
| 317 | (b) | 4.03 (a) | ||
| 318 | (a) | 16.06 |
| * | This Cross-Reference Sheet is not part of the Indenture. |
i
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE | ||||||
| DEFINITIONS | ||||||
| Section 1.01. | Definitions | 1 | ||||
| ARTICLE TWO | ||||||
| ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES | ||||||
| Section 2.01. | Amount Unlimited; Issuable in Series | 7 | ||||
| Section 2.02. | Form of Trustee’s Certificate of Authentication | 9 | ||||
| Section 2.03. | Form, Execution, Authentication, Delivery and Dating of Securities | 9 | ||||
| Section 2.04. | Currency; Denominations; Regular Record Date | 11 | ||||
| Section 2.05. | Exchange and Registration of Transfer of Securities | 12 | ||||
| Section 2.06. | Temporary Securities | 12 | ||||
| Section 2.07. | Mutilated, Destroyed, Lost or Stolen Securities | 13 | ||||
| Section 2.08. | Securities in Global Form | 13 | ||||
| Section 2.09. | Cancellation | 13 | ||||
| Section 2.10. | Computation of Interest | 14 | ||||
| Section 2.11. | CUSIP Numbers | 14 | ||||
| ARTICLE THREE | ||||||
| REDEMPTION OF SECURITIES | ||||||
| Section 3.01. | Redemption of Securities; Applicability of Article | 14 | ||||
| Section 3.02. | Tax Redemption | 14 | ||||
| Section 3.03. | Notice of Redemption; Selection of Securities | 15 | ||||
| Section 3.04. | Payment of Securities Called for Redemption | 16 | ||||
| ARTICLE FOUR | ||||||
| PARTICULAR COVENANTS OF THE COMPANY | ||||||
| Section 4.01. | Payment of Principal, Premium and Interest | 17 | ||||
| Section 4.02. | Offices for Notices and Payments, etc. | 17 | ||||
| Section 4.03. | Provisions as to Paying Agent | 17 | ||||
| Section 4.04. | Statement by Officers as to Default | 18 | ||||
| Section 4.05. | Payment of Additional Amounts | 18 | ||||
| ARTICLE FIVE | ||||||
| SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE | ||||||
| Section 5.01. | Securityholder Lists | 21 | ||||
| Section 5.02. | Preservation and Disclosure of Lists | 21 | ||||
| Section 5.03. | Reports by the Guarantor | 21 | ||||
| Section 5.04. | Reports by the Trustee | 22 | ||||
| ARTICLE SIX | ||||||
| REMEDIES ON DEFAULT | ||||||
| Section 6.01. | Events of Default | 22 | ||||
| Section 6.02. | Payment of Securities on Default; Suit Therefor | 24 | ||||
| Section 6.03. | Application of Moneys Collected by Trustee | 25 | ||||
ii
| Section 6.04. | Proceedings by Securityholders | 26 | ||||
| Section 6.05. | Remedies Cumulative and Continuing | 26 | ||||
| Section 6.06. | Direction of Proceedings | 26 | ||||
| Section 6.07. | Notice of Defaults | 27 | ||||
| Section 6.08. | Undertaking to Pay Costs | 27 | ||||
| Section 6.09. | Waiver of Past Defaults | 27 | ||||
| ARTICLE SEVEN |
| |||||
| CONCERNING THE TRUSTEE |
| |||||
| Section 7.01. | Duties and Responsibilities of Trustee | 27 | ||||
| Section 7.02. | Reliance on Documents, Opinions, etc. | 28 | ||||
| Section 7.03. | No Responsibility for Recitals, etc. | 29 | ||||
| Section 7.04. | Ownership of Securities | 29 | ||||
| Section 7.05. | Moneys to Be Held in Trust | 29 | ||||
| Section 7.06. | Compensation, Indemnification and Expenses of Trustee | 30 | ||||
| Section 7.07. | [Reserved] | 30 | ||||
| Section 7.08. | Conflicting Interest of Trustee | 30 | ||||
| Section 7.09. | Eligibility of Trustee | 30 | ||||
| Section 7.10. | Resignation or Removal of Trustee | 30 | ||||
| Section 7.11. | Acceptance by Successor Trustee | 32 | ||||
| Section 7.12. | Successor by Merger, etc. | 32 | ||||
| Section 7.13. | Limitations on Rights of Trustee as Creditor | 32 | ||||
| ARTICLE EIGHT |
| |||||
| CONCERNING THE SECURITYHOLDERS |
| |||||
| Section 8.01. | Action by Securityholders | 33 | ||||
| Section 8.02. | Proof of Ownership | 33 | ||||
| Section 8.03. | Who Are Deemed Absolute Owners | 33 | ||||
| Section 8.04. | Company-Owned Securities Disregarded | 33 | ||||
| Section 8.05. | Revocation of Consents; Future Securityholders Bound | 33 | ||||
| ARTICLE NINE |
| |||||
| SECURITYHOLDERS’ MEETINGS |
| |||||
| Section 9.01. | Purposes of Meetings | 34 | ||||
| Section 9.02. | Call of Meetings by Trustee | 34 | ||||
| Section 9.03. | Call of Meetings by Company or Securityholders | 34 | ||||
| Section 9.04. | Qualification for Voting | 34 | ||||
| Section 9.05. | Regulations | 35 | ||||
| Section 9.06. | Voting | 35 | ||||
| ARTICLE TEN |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| Section 10.01. | Supplemental Indentures without Consent of Securityholders | 35 | ||||
| Section 10.02. | Supplemental Indentures with Consent of Securityholders | 36 | ||||
| Section 10.03. | Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 37 | ||||
| Section 10.04. | Notation on Securities | 38 | ||||
| ARTICLE ELEVEN |
| |||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| Section 11.01. | Company and Guarantor May Consolidate, etc., Only on Certain Terms | 38 | ||||
| Section 11.02. | Successor Person Substituted | 39 | ||||
iii
| ARTICLE TWELVE |
| |||||
| SATISFACTION AND DISCHARGE OF INDENTURE; | ||||||
| Section 12.01. | Discharge of Indenture | 39 | ||||
| Section 12.02. | Deposited Moneys and Government Obligations to Be Held in Trust by Trustee | 40 | ||||
| Section 12.03. | Paying Agent to Repay Moneys and Government Obligations Held | 40 | ||||
| Section 12.04. | Return of Unclaimed Moneys and Government Obligations | 41 | ||||
| ARTICLE THIRTEEN |
| |||||
| DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| Section 13.01. | Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance | 41 | ||||
| Section 13.02. | Defeasance and Discharge | 41 | ||||
| Section 13.03. | Covenant Defeasance | 41 | ||||
| Section 13.04. | Conditions to Defeasance or Covenant Defeasance | 42 | ||||
| Section 13.05. | Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 43 | ||||
| ARTICLE FOURTEEN |
| |||||
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
| |||||
| Section 14.01. | Indenture and Securities Solely Corporate Obligations | 43 | ||||
| ARTICLE FIFTEEN |
| |||||
| GUARANTEE |
| |||||
| Section 15.01. | Guarantee | 44 | ||||
| Section 15.02. | Subrogation | 45 | ||||
| Section 15.03. | Notation of Guarantee | 45 | ||||
| ARTICLE SIXTEEN |
| |||||
| MISCELLANEOUS PROVISIONS |
| |||||
| Section 16.01. | Benefits of Indenture Restricted to Parties and Securityholders | 45 | ||||
| Section 16.02. | Provisions Binding on Successors | 45 | ||||
| Section 16.03. | Addresses for Notices, etc. | 45 | ||||
| Section 16.04. | Evidence of Compliance with Conditions Precedent | 46 | ||||
| Section 16.05. | Legal Holidays | 47 | ||||
| Section 16.06. | Trust Indenture Act to Control | 47 | ||||
| Section 16.07. | Execution in Counterparts | 47 | ||||
| Section 16.08. | New York Contract | 47 | ||||
| Section 16.09. | Consent to Service | 47 | ||||
| Section 16.10. | Separability | 47 | ||||
| Section 16.11. | Assignment | 47 | ||||
| Section 16.12. | Waiver of Jury Trial; Submission to Jurisdiction | 47 | ||||
| Section 16.13. | Force Majeure | 48 | ||||
| Section 16.14. | Judgment Currency | 48 | ||||
| Section 16.15. | Tax Withholding | 48 | ||||
| Section 16.16. | Office of Foreign Assets Control Sanctions Representations | 49 | ||||
iv
THIS INDENTURE, dated as of the day of , is among Accenture Capital Inc., a corporation duly incorporated and existing under the laws of the State of Delaware (hereinafter sometimes called the “Company”), Accenture plc, a public limited company duly organized and existing under the laws of Ireland (hereinafter sometimes called the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, each of the Company and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Company and the Guarantor has in all respects been duly authorized, and each of the Company and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;
NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section. All other terms used in this Indenture which are defined in the Trust Indenture Act and the Securities Act shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act and in the Securities Act in each case, as in force at the date of this Indenture as originally executed.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:
| (1) | the terms defined in this Article include the plural as well as the singular; |
| (2) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; |
| (3) | the words “herein”, “hereof”, “hereto” 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; |
| (4) | references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture; |
| (5) | the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”); |
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| (6) | provisions apply to successive events and transactions; |
| (7) | the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings; |
| (8) | the masculine gender includes the feminine and the neuter; and |
| (9) | references to agreements and other instruments include subsequent amendments and supplements thereto. |
ADDITIONAL AMOUNTS
The term “Additional Amounts” shall have the meaning specified in Section 4.05.
BOARD OF DIRECTORS
The term “Board of Directors” means the Board of Directors of the Company, the Executive Committee of the Company or any other committee duly authorized to exercise the powers and authority of the Board of Directors with respect to this Indenture or any Security.
BOARD OF DIRECTORS OF THE GUARANTOR
The term “Board of Directors of the Guarantor” means the Board of Directors of the Guarantor or any committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.
BOARD RESOLUTION
The term “Board Resolution” means a resolution certified by the Company Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
BOARD RESOLUTION OF THE GUARANTOR
The term “Board Resolution of the Guarantor” means a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY
The term “Business Day” means, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.
COMMISSION
The term “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
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COMPANY
The term “Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
COMPANY ORDER
The term “Company Order” means a written order signed in the name of the Company by the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, any assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
CORPORATE TRUST OFFICE
The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606 Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
COVENANT DEFEASANCE
The term “covenant defeasance” shall have the meaning specified in Section 13.03.
DEFEASANCE
The term “defeasance” shall have the meaning specified in Section 13.02.
DEPOSITARY
The term “Depositary” means, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.
DOLLARS
The term “dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
ELECTRONIC MEANS
The term “Electronic Means” means the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
EVENT OF DEFAULT
The term “Event of Default” means any event specified as such in or as contemplated by Section 6.01.
EXCHANGE ACT
The term “Exchange Act” means the Securities Exchange Act of 1934, as amended.
FATCA TAXES
The term “FATCA Taxes” shall have the meaning specified in Section 4.05.
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GAAP
The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.
GLOBAL SECURITY
The term “Global Security” means a Security in registered global form without interest coupons.
GOVERNMENT OBLIGATIONS
The term “Government Obligations” means securities that are (i) direct obligations of the United States or the other government which issued the currency in which the Securities of such series are denominated, in each case for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.
GUARANTEE
The term “Guarantee” shall have the meaning specified in Article Fifteen.
GUARANTOR
The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.
HOLDER
The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.
HOME COUNTRY JURISDICTION
The term “Home Country Jurisdiction” means the jurisdiction of organization of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.
INDENTURE
The term “Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01;
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provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
INTEREST
The term “Interest” means, when used with respect to non-interest bearing Securities, interest payable on or after maturity.
INTEREST PAYMENT DATE
The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.
OFFICER’S CERTIFICATE
The term “Officer’s Certificate” means a certificate signed by any one of the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or Assistant Secretary of the Company and delivered to the Trustee.
OFFICER’S CERTIFICATE OF THE GUARANTOR
The term “Officer’s Certificate of the Guarantor” means a certificate signed by any one of the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or Assistant Secretary of the Guarantor and delivered to the Trustee.
OPINION OF COUNSEL
The term “Opinion of Counsel” means an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor or who may be other counsel, and delivered to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES
The term “Original Issue Discount Securities” means a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.
OUTSTANDING
The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except
| (a) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
| (b) | Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent |
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| (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice; |
| (c) | Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Company; |
| (d) | Securities which have been defeased pursuant to Section 13.02; and |
| (e) | Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange. |
PERIODIC OFFERING
The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.
PERSON
The term “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT
The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Company in either the City of Chicago or the Borough of Manhattan, the City of New York, designated and maintained by the Company pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.
REGULAR RECORD DATE
The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.
RELEVANT TAXING JURISDICTION
The term a “Relevant Taxing Jurisdiction” means each of (i) the government of Ireland or by any authority or agency therein or thereof having the power to tax, (ii) any other jurisdiction in which the Company or the Guarantor is organized or is otherwise resident for tax purposes or any political subdivision or any authority or agency therein or thereof having the power to tax, or (iii) any jurisdiction from or through which payment under or with respect to the Company or the Guarantor is made or any political subdivision or any authority or agency therein or thereof having the power to tax, in each of clauses (ii) and (iii) other than the United States in the case of U.S. dollar-denominated Securities issued by the Company.
RESPONSIBLE OFFICER
The term “Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
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SECURITIES ACT
The term “Securities Act” means the Securities Act of 1933, as amended.
SECURITY REGISTER AND SECURITY REGISTRAR
The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.
SHARES
The term “Shares” means the Class A ordinary shares, par value $0.0000225 per share, of the Guarantor authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Guarantor which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.
TAXES
The term “Taxes” shall have the meaning specified in Section 4.05.
TRUST INDENTURE ACT
Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
UNITED STATES
The term “United States” means the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, in an Officer’s Certificate or by one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); |
| (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, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms); |
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| (3) | whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security; |
| (4) | the date or dates on which the principal of the Securities of the series is payable; |
| (5) | the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date; |
| (6) | whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture; |
| (7) | the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable; |
| (8) | 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, repurchased or repaid, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; |
| (9) | the obligation, if any, of the Company to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof 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, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Company to select the Securities to be redeemed, repurchased or repaid; |
| (10) | if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than dollars; |
| (11) | the denominations in which Securities of the series shall be issuable, if other than $2,000 or integral multiples of $1,000 in excess thereof; |
| (12) | if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02; |
| (13) | if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series); |
| (14) | any deletions from, modifications of or additions to the Events of Default or covenants of the Company and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein); |
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| (15) | whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and |
| (16) | any other terms of the Securities of the series. |
All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officer’s Certificate or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
All Securities of any one series need not be issued at the same time, and, unless otherwise so provided by the Company, a series may be reopened for issuances of additional Securities of such series.
Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officer’s Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.
Section 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:
[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||||
| Dated: | By: | |||||
| Authorized Officer | ||||||
Section 2.03. Form, Execution, Authentication, Delivery and Dating of Securities. The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officer’s Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities. Such Securities may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.
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Each Security shall be executed on behalf of the Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary. Such signatures may be the electronic or manual signatures of the present or any future such officers.
With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be electronic or manual.
Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the electronic or manual signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officer’s Certificate pursuant to Section 16.04 and an Opinion of Counsel stating:
| (a) | if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture; |
| (b) | if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and |
| (c) | that each such Security, 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 a valid and legally binding obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles. |
If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 2.01 if such Officer’s Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
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With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.
Every Security shall be dated the date of its authentication.
No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by electronic or manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.04. Currency; Denominations; Regular Record Date. Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.
The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01. In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.
The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, the City of New York are authorized by law or required by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.
The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time 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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Section 2.05. Exchange and Registration of Transfer of Securities. Securities of any series may be exchanged for a like aggregate principal amount of Securities of other authorized denominations of such series. Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, the City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.
The Company (or its designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided. The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Security Register shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Security of a particular series at such office or agency, the Company shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Company or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.
All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Company shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.
Section 2.06. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced). Temporary Securities of any series shall be issuable in any authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution. Every temporary Security shall be executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Company shall execute and shall furnish definitive Securities of such series evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, the City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations. Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
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If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution. In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08. Securities in Global Form. If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.
Section 2.09. Cancellation. All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Company or, if requested to do so by the Company, shall return such cancelled Securities to the Company.
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Section 2.10. Computation of Interest. Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.11. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers. After the issue date of any Securities, if additional Securities are issued having the same terms and conditions as the existing Securities in all respects (other than the issue date, public offering price, and to the extent applicable, first date of interest accrual and first interest payment date of such notes), but that are not fungible with the existing Securities for U.S. federal income tax purposes, such additional Securities will have a separate CUSIP number.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities; Applicability of Article. Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.
Section 3.02. Tax Redemption. The Company shall have the option to redeem the Securities of any series, in whole but not in part, at any time prior to the maturity date of the principal of the Securities of any series, upon the giving of not less than ten (10) nor more than sixty (60) days’ notice of tax redemption to Holders, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption (except Original Issue Discount Securities may be redeemed at the redemption price specified by the terms of each series of such Securities), if, with respect to such series:
| (a) | the Company determines that, as a result of: |
| (1) | any change in, or amendment to, the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction; or |
| (2) | any change in the official application, administration or written interpretation of such laws, regulations or rulings, which change or amendment becomes effective or, in the case of an interpretation, is announced on or after the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities, the Company or the Guarantor, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company or the Guarantor, as applicable; or |
| (b) | the Company determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Relevant Taxing Jurisdiction, which action is taken or brought on or after the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities under the laws of a jurisdiction other than a Relevant Taxing Jurisdiction, with respect to taxes imposed by such other jurisdiction, there is a substantial probability that the circumstances described above would exist. |
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| (c) | Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be. |
| (d) | The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price. |
| (e) | Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall deliver to the Trustee (i) an Officer’s Certificate stating that the Company or the Guarantor, as applicable, is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and (ii) an opinion of independent counsel to the effect that there has been such change or amendment that would entitle the Company to redeem the Securities under this Indenture. The Trustee shall accept such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent described in this Section 3.02, in which event it shall be conclusive and binding on the Holders of the Securities being redeemed. The foregoing provisions under this Section 3.02 shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or the Guarantor, as the case may be, is incorporated or organized or tax resident or any political subdivision or taxing authority or agency thereof or therein; provided that if on the date of the succession the taxing jurisdiction is not already a Relevant Taxing Jurisdiction, the change or amendment of law becomes effective (or the announcement of the official interpretation is announced) after that date. |
Section 3.03. Notice of Redemption; Selection of Securities. In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, it shall fix a date for redemption, it shall prepare the notice of such redemption and it shall deliver or, at the Company’s request and expense, the Trustee shall deliver such notice of redemption at least ten (10) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register. Such delivery shall be by prepaid first class mail or, in the case of global securities, delivered electronically to the Depository. Any notice which is sent in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice. In any case, failure to give notice, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
Each notice of redemption shall specify:
| (1) | the date fixed for redemption and, if such redemption is subject to the completion of any condition, a statement to such effect; |
| (2) | the redemption price at which the applicable Securities are to be redeemed or, if the redemption price cannot be determined at the time notice is given, the formula pursuant to which the redemption price is to be determined; |
| (3) | the Place of Payment; |
| (4) | that payment will be made upon presentation and surrender of such Securities; and |
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| (5) | that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue. |
In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange.
Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption. The Company will give the Trustee notice of each redemption at least fifteen (15) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Securities to be redeemed shall be selected by lot if the Securities are in definitive form and, if the Securities are in global form, then in accordance with the procedures of the Depositary; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Section 3.04. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of Payment stated in such notice at the applicable redemption price and on and after said date (unless the Company and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue. On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Company at the applicable redemption price. Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Company shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04. At the option of the Company, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.
Upon presentation of any Security redeemed in part only (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture. The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Company may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.
Section 4.02. Offices for Notices and Payments, etc. As long as any of the Securities of a series remain outstanding, the Company will designate and maintain, in the City of Chicago or the Borough of Manhattan, the City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Company in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment. The Company will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, the City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee in the City of Chicago and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby initially designates the Trustee, located at the Corporate Trust Office as a Security Registrar and as the office or agency of the Company in the City of Chicago where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities of any series or of this Indenture may be served.
Section 4.03. Provisions as to Paying Agent.
| (a) | Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section, |
| (1) | that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent, |
| (2) | that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held, |
| (3) | that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and |
| (4) | at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent. |
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| (b) | If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due. The Company will promptly notify the Trustee of any failure to take such action. |
| (c) | Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. |
| (d) | Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. |
| (e) | Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03. |
| (f) | To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis, to such Shares or other securities or property. |
Section 4.04. Statement by Officers as to Default.
| (a) | The Company will deliver to the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by it and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge. |
| (b) | The Company will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default. |
Section 4.05. Payment of Additional Amounts.
| (a) | All payments made on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of a similar nature (collectively, “Taxes”), unless the Company, the Guarantor or a paying agent, as applicable is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. |
If the Company, the Guarantor or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of a Relevant Taxing Jurisdiction, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including
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such Additional Amounts), after such withholding or deduction, shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:
| (1) | that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein; |
| (2) | that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges; |
| (3) | payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee; |
| (4) | that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent: |
| (i) | such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and |
| (ii) | at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement; |
| (5) | that would not have been imposed but for the presentation of a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later; |
| (6) | that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Company will be paid net of any FATCA Taxes imposed or required pursuant thereto; |
| (7) | that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made; |
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| (8) | in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or tax authority therein, including any U.S. withholding and backup withholding taxes; or |
| (9) | any combination of the foregoing clauses (1) through (8); |
nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts shall be payable in respect of any Taxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
| (b) | If the Company, the Guarantor, or a paying agent, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Company, the Guarantor or the applicable paying agent, shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Company or the Guarantor as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. |
| (c) | Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make all withholdings and deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the Securities or Guarantees, as the case may be. Upon request, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide to the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of such Securities. |
| (d) | All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable. |
| (e) | The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due shall survive the termination of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such series and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein. |
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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Securityholder Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:
| (a) | semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, 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 Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company; and |
| (b) | at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished; |
provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.
Section 5.02. Preservation and Disclosure of Lists.
| (a) | The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
| (b) | The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities or any Guarantee, 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, the Guarantor and the Trustee that neither the Company, the Guarantor nor the Trustee nor any agent of any 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. |
Section 5.03. Reports by the Guarantor. The Company covenants:
| (a) | to file with the Trustee within thirty (30) days after the Guarantor files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Guarantor is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; |
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| (b) | to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and |
| (c) | to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. |
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive or actual knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Company and the Guarantor shall be deemed to have complied with this Section to the extent that such information, documents and reports are filed with the Commission via EDGAR, or any successor electronic delivery procedure.
Section 5.04. Reports by the Trustee.
| (a) | The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a). |
| (b) | A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Company. The Company agrees to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange. |
ARTICLE SIX
REMEDIES ON DEFAULT
Section 6.01. Events of Default. In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:
| (a) | default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or |
| (b) | default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days; or |
| (c) | with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or |
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| (d) | failure on the part of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, the Guarantor in this Indenture applicable to Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Company or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company or if applicable, the Guarantor by the Trustee, or to the Company and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or |
| (e) | a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of the Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or |
| (f) | except for any case, proceeding, meeting, resolution or order in connection with a winding-up of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of the Company or the Guarantor, as applicable, either the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of the property of the Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors; |
| (g) | default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 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 ten (10) Business Days; or |
| (h) | any other Event of Default provided with respect to Securities of such series; |
then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.
The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that the terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and
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premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses, indemnities and liabilities incurred, and all advances made, by the Trustee, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The Company covenants that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be); and, in addition thereto, such further amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee.
In case the Company shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, the Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, the Guarantor (if applicable) or
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such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to the Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the Trustee, its agents and attorneys, all amounts due pursuant to Section 7.06 of this Indenture;
SECOND: In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
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THIRD: In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if any, and (to the extent that such interest has been collected by the Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and
FOURTH: Any remainder to the Company or as a court of competent jurisdiction may direct.
Section 6.04. Proceedings by Securityholders. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses, indemnities and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing itself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.
Section 6.05. Remedies Cumulative and Continuing. All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
Section 6.06. Direction of Proceedings. The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, however, that (subject to the provisions of Sections 7.01 and 7.02(d)) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability.
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Section 6.07. Notice of Defaults. The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by sending such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the transmission or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.
Section 6.08. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.
Section 6.09. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
| (1) | in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series; |
| (2) | in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or |
| (3) | in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee.
| (a) | Except during the continuance of an Event of Default of a particular series, |
| (1) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
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| (2) | in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). |
| (b) | In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. |
| (c) | No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
| (1) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and |
| (2) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; |
| (3) | whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section; and |
| (4) | no provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. |
Section 7.02. Reliance on Documents, Opinions, etc. Subject to the provisions of Section 7.01:
| (a) | the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; |
| (b) | any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order, any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution, and any resolution of the Board of Directors of the Guarantor may be sufficiently evidenced by a Board Resolution of the Guarantor; |
| (c) | 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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel; |
| (d) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby; |
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| (e) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or the Guarantor personally or by agent or attorney; |
| (f) | the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder 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 by it with due care hereunder; |
| (g) | the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (h) | in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
| (i) | the Trustee shall not be deemed to have knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written notice thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; |
| (j) | 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; |
| (k) | the Trustee may request that the Company or the Guarantor 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; |
| (l) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate; and |
| (m) | the Trustee shall not be responsible for making any calculations hereunder, including, without limitation, original issue discount, and in all cases, the Trustee shall be entitled to rely on calculations made by the Company. |
Section 7.03. No Responsibility for Recitals, etc. The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee or any agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company, the Guarantor or the Trustee.
Section 7.05. Moneys to Be Held in Trust. Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.
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Section 7.06. Compensation, Indemnification and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct. The Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable U.S. federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.
Section 7.07. [Reserved].
Section 7.08. Conflicting Interest of Trustee.
| (a) | If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act. |
| (b) | In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by the conflicting interest as the names and addresses of such Holders appear on the Security Register. |
Section 7.09. Eligibility of Trustee. There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by U.S. federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars. If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10. Resignation or Removal of Trustee.
| (a) | The Trustee, or any trustee or trustees hereafter appointed, may, upon thirty (30) days’ written notice to the Company, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company, and by mailing notice of such resignation to the Holders of then outstanding |
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| Securities of each series affected at their addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the transmission of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. |
| (b) | In case at any time any of the following shall occur: |
| (1) | the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or |
| (2) | the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or |
| (3) | the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, 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; |
then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
| (c) | The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may, upon thirty (30) days’ written notice to the Trustee and the Company, at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Company and appoint a successor trustee with respect to the Securities of such series with the consent of the Company. |
| (d) | Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11. |
| (e) | Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series. |
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Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act. Upon request of any such successor trustee, the Company and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.
No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by sending such notice to such Holders at their addresses as they shall appear on the Security Register. If the Company fails to send such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Company.
Section 7.12. Successor by Merger, etc. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13. Limitations on Rights of Trustee as Creditor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such specified amount have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.
Section 8.02. Proof of Ownership. Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.
If the Company or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Company or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.
Section 8.04. Company-Owned Securities Disregarded. In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Company or by any person directly or indirectly controlling or controlled by or under direct or indirect control with the Company, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the Trustee knows are so owned shall be disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Securityholders Bound. At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing
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written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.
ARTICLE NINE
SECURITYHOLDERS’ MEETINGS
Section 9.01. Purposes of Meetings. A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
| (1) | to give any notice to the Company, the Guarantor (if applicable) or the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six; |
| (2) | to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven; |
| (3) | to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or |
| (4) | to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law. |
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, to be held at such time and at such place in the Borough of Manhattan, the City of New York as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to all Holders of then Outstanding Securities of such series, by sending such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (180) days prior to the date fixed for the meeting. Failure of any Holder or Holders to receive such notice or any defect therein shall in no case affect the validity of any action taken at such meeting. Any meeting of Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series Outstanding, the Company and the Trustee are present in person or by proxy or shall have waived notice thereof before or after the meeting.
Section 9.03. Call of Meetings by Company or Securityholders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have sent or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Company or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by sending or publishing notice thereof as provided in Section 9.02.
Section 9.04. Qualification for Voting. To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder. The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
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Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting not to be Outstanding. The chairman of the meeting shall have no right to vote except as a Securityholder or proxy. Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders or proxies and on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of Securityholders. The Company, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for one or more of the following purposes:
| (a) | to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Article Eleven hereof; |
| (b) | to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Company or the Guarantor; |
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| (c) | to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series; |
| (d) | to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect; |
| (e) | to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities; |
| (f) | to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; |
| (g) | to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; |
| (h) | to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement shall materially adversely affect the interests of the Holders of any Securities then Outstanding. |
The Trustee is hereby authorized to join with the Company and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02. Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Company, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:
| (a) | extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security; |
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| (b) | impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor); |
| (c) | reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults; |
| (d) | make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or |
| (e) | modify any of the provisions of this Section or Section 6.09, 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 Outstanding Security affected thereby; provided however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e). |
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Company and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution and delivery by the Company, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register. Any failure of the Company or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officer’s Certificate, and an Officer’s Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.
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Section 10.04. Notation on Securities. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform, in the opinion of the Company and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 11.01. Company and Guarantor May Consolidate, etc., Only on Certain Terms. So long as any Securities shall be Outstanding, neither the Company nor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
| (a) | (1) The Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which the Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety: |
| (i) | expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and |
| (ii) | in the case of the Company, is a corporation or other entity organized and existing under the laws of (u) the United States of America, any State thereof or the District of Columbia, (v) Ireland, (w) England and Wales, (x) Jersey, (y) any member state of the European Union as in effect on the date the Securities of the applicable series are first issued or (z) Switzerland. |
| (b) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or the Guarantor, as applicable, as a result of such transaction as having been incurred by the Company or the Guarantor, as applicable, 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 |
| (c) | the Company has delivered to the Trustee an Officer’s Certificate or the Guarantor has delivered to the Trustee an Officer’s Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 herein provided for relating to such transaction have been complied with. |
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Notwithstanding the foregoing, (A) any conveyance, transfer or lease of assets between or among the Guarantor or the Company and its subsidiaries shall not be prohibited hereunder, and (B) each of the Guarantor and the Company may, directly or indirectly, consolidate with or merge with or into an affiliate incorporated solely for the purpose of reincorporating the Guarantor or the Company, as applicable, in another jurisdiction within the United States of America, any State thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the Securities of the applicable series are first issued or Switzerland to realize tax or other benefits.
Section 11.02. Successor Person Substituted. So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company or the Guarantor, as applicable, is merged or converted or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS AND GOVERNMENT OBLIGATIONS
Section 12.01. Discharge of Indenture. This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(a) either:
| (i) | all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or |
| (ii) | all such Securities of such series not theretofore delivered to the Trustee for cancellation: |
| (A) | have become due and payable; or |
| (B) | will become due and payable at their stated maturity within one year; or |
| (C) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; |
and the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount of money sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any) with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;
| (b) | the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and |
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| (c) | the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:
| (1) | All obligations under Section 7.06; |
| (2) | If money or Government Obligations shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or Government Obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02 and 12.04; |
| (3) | Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Company or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and |
| (4) | Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares, securities or other property. |
After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Company’s and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.
Section 12.02. Deposited Moneys and Government Obligations to Be Held in Trust by Trustee. Subject to Section 12.04, all moneys and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys or Government Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 12.02 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of the Company or the Guarantor, as the case may be, any money or Government Obligations held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations was deposited.
Section 12.03. Paying Agent to Repay Moneys and Government Obligations Held. In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys or Government Obligations then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys or Government Obligations.
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Section 12.04. Return of Unclaimed Moneys and Government Obligations. Any moneys or Government Obligations deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Company or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys or Government Obligations shall thereupon cease.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.
Section 13.02. Defeasance and Discharge. Upon the Company’s exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance”). Defeasance shall mean that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided, however, that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen. Subject to compliance with this Article Thirteen, the Company may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.
Section 13.03. Covenant Defeasance. Upon the Company’s exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance”). Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by
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reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance. The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:
| (a) | The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Government Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities. |
| (b) | 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 on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). |
| (c) | 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. |
| (d) | Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted. |
| (e) | In the case of an election with respect to Section 13.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. |
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| (f) | In the case of an election with respect to Section 13.03, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. 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. |
| (g) | 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 therewith pursuant to Section 3.01. |
| (h) | The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with. |
| (i) | If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a), Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture. |
Section 13.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations were deposited.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations. No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Company, the Guarantor or any successor Person to either of them, either directly or through the Company, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
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ARTICLE FIFTEEN
GUARANTEE
Section 15.01. Guarantee. The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof. The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture or otherwise with respect to the Securities registered in such Holder’s name, and (b) the Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture to the Trustee (each, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.
The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification or consent granted to the Company with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.
The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Company, first make demand upon or seek to enforce remedies against the Company or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.
The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.
The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Company, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.
The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.
The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of the Company or otherwise.
The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Company or by any defense which the Company may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding. No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.
44
Section 15.02. Subrogation. The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.
Section 15.03. Notation of Guarantee. To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.
The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 16.01. Benefits of Indenture Restricted to Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 16.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
Section 16.03. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee), as follows: if to the Company, Accenture Capital Inc., 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles; and if to the Guarantor, Accenture plc, c/o Accenture LLP, 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles. Any notice, direction, request or demand by the Company or the Guarantor, or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606, Email: jose.salasjr@bny.com, Phone: 312-827-8621, or at any other address previously furnished in writing to the Company by the Trustee.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer and/or the Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer and/or the Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Guarantor, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to
45
act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Guarantor understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer and the Guarantor shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer, the Guarantor and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Guarantor, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer and the Guarantor agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 16.04. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officer’s Certificate or Officer’s Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (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 such person, 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 or not, in the opinion of such person, such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
46
Section 16.05. Legal Holidays. Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.
Section 16.06. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
Section 16.07. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
Section 16.08. New York Contract. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State.
Section 16.09. Consent to Service. The Guarantor has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the Securities of any series to which the provisions of Article Fifteen shall apply brought in any federal or state court sitting in the Borough of Manhattan in the City of New York. By the execution and delivery of this Indenture, the Guarantor irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Guarantor, shall be deemed in every respect effective service of process upon the Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any Securities to which the provisions of Article Fifteen shall apply shall be Outstanding.
Section 16.10. Separability. In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 16.11. Assignment. The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations. Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties hereto.
Section 16.12. Waiver of Jury Trial; Submission to Jurisdiction. EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE NOTES) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY. THE COMPANY AND GUARANTOR HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE SOUTHERN DISTRICT IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
47
Section 16.13. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, pandemics or epidemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.
Section 16.14. Judgment Currency. The Company and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:
| (a) | if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, the City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, the City of New York, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, the City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, the City of New York preceding the day on which a final unappealable judgment is entered; and |
| (b) | their obligations under this Indenture to make payments in the Required Currency: |
| (1) | shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments; |
| (2) | shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and |
| (3) | shall not be affected by judgment being obtained for any other sum due under this Indenture. |
Section 16.15. Tax Withholding. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 16.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company agrees (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Company’s possession (or, to the extent not in the Company’s possession, can be obtained through commercially reasonable efforts of the Company) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Company, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability. The terms of this Section shall survive the termination of this Indenture.
48
Section 16.16. Office of Foreign Assets Control Sanctions Representations.
| (a) | The Company represents that neither it nor, to the Company’s knowledge, any of its affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively “Sanctions”); |
| (b) | The Company covenants that it will not, and, to the Company’s knowledge, its subsidiaries, directors or officers will not, directly or indirectly use any payments made pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person. |
49
IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.
| Accenture Capital Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Accenture plc | ||
| By: | ||
| Name: | ||
| Title: | ||
| The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
50
Annex A
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| Accenture plc | ||
| By: | ||
| Name: | ||
| Title: | ||
51
Exhibit 4.4
ACCENTURE GLOBAL CAPITAL DAC
Company
ACCENTURE PLC
Guarantor
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
Trustee
INDENTURE
Dated as of
Debt Securities
CROSS-REFERENCE SHEET*
BETWEEN
Provisions of Sections 310 through 318(a) of the Trust Indenture Act and the within Indenture among Accenture Global Capital DAC, Accenture plc and The Bank of New York Mellon Trust Company, N.A., Trustee:
| 310 |
(a) (1) and (2) | 7.09 | ||
| 310 |
(a) (3) and (4) | Not applicable | ||
| 310 |
(b) | 7.08 and 7.10 (b) | ||
| 310 |
(c) | Not applicable | ||
| 311 |
(a) and (b) | 7.13 | ||
| 311 |
(c) | Not applicable | ||
| 312 |
(a) | 5.01 and 5.02 (a) | ||
| 312 |
(b) and (c) | 5.02 (b) and (c) | ||
| 313 |
(a), (b)(2) and (c) | 5.04 (a) | ||
| 313 |
(b) (1) | Not applicable | ||
| 313 |
(d) | 5.04 (b) | ||
| 314 |
(a) | 5.03 | ||
| 314 |
(b) | Not applicable | ||
| 314 |
(c) (1) and (2) | 16.04 | ||
| 314 |
(c) (3) | Not applicable | ||
| 314 |
(d) | Not applicable | ||
| 314 |
(e) | 16.04 | ||
| 314 |
(f) | Not applicable | ||
| 315 |
(a), (c) and (d) | 7.01 | ||
| 315 |
(b) | 6.07 | ||
| 315 |
(e) | 6.08 | ||
| 316 |
(a) (1) | 6.01 and 6.06 | ||
| 316 |
(a) (2) | Omitted | ||
| 316 |
(a) last sentence | 8.04 | ||
| 316 |
(b) | 6.04 | ||
| 317 |
(a) | 6.02 | ||
| 317 |
(b) | 4.03 (a) | ||
| 318 |
(a) | 16.06 |
| * | This Cross-Reference Sheet is not part of the Indenture. |
i
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE |
| |||||
| DEFINITIONS |
| |||||
| Section 1.01. |
Definitions | 1 | ||||
| ARTICLE TWO |
| |||||
| ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
| |||||
| Section 2.01. |
Amount Unlimited; Issuable in Series | 7 | ||||
| Section 2.02. |
Form of Trustee’s Certificate of Authentication | 9 | ||||
| Section 2.03. |
Form, Execution, Authentication, Delivery and Dating of Securities | 9 | ||||
| Section 2.04. |
Currency; Denominations; Regular Record Date | 11 | ||||
| Section 2.05. |
Exchange and Registration of Transfer of Securities | 12 | ||||
| Section 2.06. |
Temporary Securities | 12 | ||||
| Section 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 13 | ||||
| Section 2.08. |
Securities in Global Form | 13 | ||||
| Section 2.09. |
Cancellation | 13 | ||||
| Section 2.10. |
Computation of Interest | 14 | ||||
| Section 2.11. |
CUSIP Numbers | 14 | ||||
| ARTICLE THREE |
| |||||
| REDEMPTION OF SECURITIES |
| |||||
| Section 3.01. |
Redemption of Securities; Applicability of Article | 14 | ||||
| Section 3.02. |
Tax Redemption | 14 | ||||
| Section 3.03. |
Notice of Redemption; Selection of Securities | 15 | ||||
| Section 3.04. |
Payment of Securities Called for Redemption | 16 | ||||
| ARTICLE FOUR |
| |||||
| PARTICULAR COVENANTS OF THE COMPANY |
| |||||
| Section 4.01. |
Payment of Principal, Premium and Interest | 17 | ||||
| Section 4.02. |
Offices for Notices and Payments, etc. | 17 | ||||
| Section 4.03. |
Provisions as to Paying Agent | 17 | ||||
| Section 4.04. |
Statement by Officers as to Default | 18 | ||||
| Section 4.05. |
Payment of Additional Amounts | 18 | ||||
| ARTICLE FIVE |
| |||||
| SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
| |||||
| Section 5.01. |
Securityholder Lists | 21 | ||||
| Section 5.02. |
Preservation and Disclosure of Lists | 21 | ||||
| Section 5.03. |
Reports by the Guarantor | 21 | ||||
| Section 5.04. |
Reports by the Trustee | 22 | ||||
| ARTICLE SIX |
| |||||
| REMEDIES ON DEFAULT |
| |||||
| Section 6.01. |
Events of Default | 22 | ||||
| Section 6.02. |
Payment of Securities on Default; Suit Therefor | 24 | ||||
| Section 6.03. |
Application of Moneys Collected by Trustee | 25 | ||||
ii
| Section 6.04. |
Proceedings by Securityholders | 26 | ||||
| Section 6.05. |
Remedies Cumulative and Continuing | 26 | ||||
| Section 6.06. |
Direction of Proceedings | 26 | ||||
| Section 6.07. |
Notice of Defaults | 27 | ||||
| Section 6.08. |
Undertaking to Pay Costs | 27 | ||||
| Section 6.09. |
Waiver of Past Defaults | 27 | ||||
| ARTICLE SEVEN |
| |||||
| CONCERNING THE TRUSTEE |
| |||||
| Section 7.01. |
Duties and Responsibilities of Trustee | 27 | ||||
| Section 7.02. |
Reliance on Documents, Opinions, etc. | 28 | ||||
| Section 7.03. |
No Responsibility for Recitals, etc. | 29 | ||||
| Section 7.04. |
Ownership of Securities | 29 | ||||
| Section 7.05. |
Moneys to Be Held in Trust | 29 | ||||
| Section 7.06. |
Compensation, Indemnification and Expenses of Trustee | 30 | ||||
| Section 7.07. |
[Reserved] | 30 | ||||
| Section 7.08. |
Conflicting Interest of Trustee | 30 | ||||
| Section 7.09. |
Eligibility of Trustee | 30 | ||||
| Section 7.10. |
Resignation or Removal of Trustee | 30 | ||||
| Section 7.11. |
Acceptance by Successor Trustee | 32 | ||||
| Section 7.12. |
Successor by Merger, etc. | 32 | ||||
| Section 7.13. |
Limitations on Rights of Trustee as Creditor | 32 | ||||
| ARTICLE EIGHT |
| |||||
| CONCERNING THE SECURITYHOLDERS |
| |||||
| Section 8.01. |
Action by Securityholders | 32 | ||||
| Section 8.02. |
Proof of Ownership | 33 | ||||
| Section 8.03. |
Who Are Deemed Absolute Owners | 33 | ||||
| Section 8.04. |
Company-Owned Securities Disregarded | 33 | ||||
| Section 8.05. |
Revocation of Consents; Future Securityholders Bound | 33 | ||||
| ARTICLE NINE |
| |||||
| SECURITYHOLDERS’ MEETINGS |
| |||||
| Section 9.01. |
Purposes of Meetings | 34 | ||||
| Section 9.02. |
Call of Meetings by Trustee | 34 | ||||
| Section 9.03. |
Call of Meetings by Company or Securityholders | 34 | ||||
| Section 9.04. |
Qualification for Voting | 34 | ||||
| Section 9.05. |
Regulations | 35 | ||||
| Section 9.06. |
Voting | 35 | ||||
| ARTICLE TEN |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| Section 10.01. |
Supplemental Indentures without Consent of Securityholders | 35 | ||||
| Section 10.02. |
Supplemental Indentures with Consent of Securityholders | 36 | ||||
| Section 10.03. |
Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 37 | ||||
| Section 10.04. |
Notation on Securities | 38 | ||||
| ARTICLE ELEVEN |
| |||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
| |||||
| Section 11.01. |
Company and Guarantor May Consolidate, etc., Only on Certain Terms | 38 | ||||
iii
| Section 11.02. |
Successor Person Substituted | 39 | ||||
| ARTICLE TWELVE |
| |||||
| SATISFACTION AND DISCHARGE OF INDENTURE; |
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| Section 12.01. |
Discharge of Indenture | 39 | ||||
| Section 12.02. |
Deposited Moneys and Government Obligations to Be Held in Trust by Trustee | 40 | ||||
| Section 12.03. |
Paying Agent to Repay Moneys and Government Obligations Held | 40 | ||||
| Section 12.04. |
Return of Unclaimed Moneys and Government Obligations | 41 | ||||
| ARTICLE THIRTEEN |
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| DEFEASANCE AND COVENANT DEFEASANCE |
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| Section 13.01. |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance | 41 | ||||
| Section 13.02. |
Defeasance and Discharge | 41 | ||||
| Section 13.03. |
Covenant Defeasance | 41 | ||||
| Section 13.04. |
Conditions to Defeasance or Covenant Defeasance | 42 | ||||
| Section 13.05. |
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 43 | ||||
| ARTICLE FOURTEEN |
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| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
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| Section 14.01. |
Indenture and Securities Solely Corporate Obligations | 43 | ||||
| ARTICLE FIFTEEN |
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| GUARANTEE |
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| Section 15.01. |
Guarantee | 44 | ||||
| Section 15.02. |
Subrogation | 45 | ||||
| Section 15.03. |
Notation of Guarantee | 45 | ||||
| ARTICLE SIXTEEN |
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| MISCELLANEOUS PROVISIONS |
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| Section 16.01. |
Benefits of Indenture Restricted to Parties and Securityholders | 45 | ||||
| Section 16.02. |
Provisions Binding on Successors | 45 | ||||
| Section 16.03. |
Addresses for Notices, etc. | 45 | ||||
| Section 16.04. |
Evidence of Compliance with Conditions Precedent | 46 | ||||
| Section 16.05. |
Legal Holidays | 47 | ||||
| Section 16.06. |
Trust Indenture Act to Control | 47 | ||||
| Section 16.07. |
Execution in Counterparts | 47 | ||||
| Section 16.08. |
New York Contract | 47 | ||||
| Section 16.09. |
Consent to Service | 47 | ||||
| Section 16.10. |
Separability | 47 | ||||
| Section 16.11. |
Assignment | 47 | ||||
| Section 16.12. |
Waiver of Jury Trial; Submission to Jurisdiction | 47 | ||||
| Section 16.13. |
Force Majeure | 48 | ||||
| Section 16.14. |
Judgment Currency | 48 | ||||
| Section 16.15. |
Tax Withholding | 48 | ||||
| Section 16.16. |
Office of Foreign Assets Control Sanctions Representations | 49 | ||||
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THIS INDENTURE, dated as of the day of , is among Accenture Global Capital DAC, a designated activity company duly organized and existing under the laws of Ireland (hereinafter sometimes called the “Company”), Accenture plc, a public limited company duly organized and existing under the laws of Ireland (hereinafter sometimes called the “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing its unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, each of the Company and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Company and the Guarantor has in all respects been duly authorized, and each of the Company and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;
NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section. All other terms used in this Indenture which are defined in the Trust Indenture Act and the Securities Act shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act and in the Securities Act in each case, as in force at the date of this Indenture as originally executed.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:
| (1) | the terms defined in this Article include the plural as well as the singular; |
| (2) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; |
| (3) | the words “herein”, “hereof”, “hereto” 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; |
| (4) | references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture; |
| (5) | the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”); |
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| (6) | provisions apply to successive events and transactions; |
| (7) | the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings; |
| (8) | the masculine gender includes the feminine and the neuter; and |
| (9) | references to agreements and other instruments include subsequent amendments and supplements thereto. |
ADDITIONAL AMOUNTS
The term “Additional Amounts” shall have the meaning specified in Section 4.05.
BOARD OF DIRECTORS
The term “Board of Directors” means the Board of Directors of the Company or any committee duly authorized to exercise the powers and authority of the Board of Directors with respect to this Indenture or any Security.
BOARD OF DIRECTORS OF THE GUARANTOR
The term “Board of Directors of the Guarantor” means the Board of Directors of the Guarantor or any committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.
BOARD RESOLUTION
The term “Board Resolution” means a resolution certified by the Company Secretary or any Assistant Secretary of the Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
BOARD RESOLUTION OF THE GUARANTOR
The term “Board Resolution of the Guarantor” means a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY
The term “Business Day” means, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.
COMMISSION
The term “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
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COMPANY
The term “Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
COMPANY ORDER
The term “Company Order” means a written order signed in the name of the Company by the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, any assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
CORPORATE TRUST OFFICE
The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606 Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
COVENANT DEFEASANCE
The term “covenant defeasance” shall have the meaning specified in Section 13.03.
DEFEASANCE
The term “defeasance” shall have the meaning specified in Section 13.02.
DEPOSITARY
The term “Depositary” means, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.
DOLLARS
The term “dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
ELECTRONIC MEANS
The term “Electronic Means” means the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
EVENT OF DEFAULT
The term “Event of Default” means any event specified as such in or as contemplated by Section 6.01.
EXCHANGE ACT
The term “Exchange Act” means the Securities Exchange Act of 1934, as amended.
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FATCA TAXES
The term “FATCA Taxes” shall have the meaning specified in Section 4.05.
GAAP
The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.
GLOBAL SECURITY
The term “Global Security” means a Security in registered global form without interest coupons.
GOVERNMENT OBLIGATIONS
The term “Government Obligations” means securities that are (i) direct obligations of the United States or the other government which issued the currency in which the Securities of such series are denominated, in each case for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.
GUARANTEE
The term “Guarantee” shall have the meaning specified in Article Fifteen.
GUARANTOR
The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.
HOLDER
The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.
HOME COUNTRY JURISDICTION
The term “Home Country Jurisdiction” means the jurisdiction of organization of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.
INDENTURE
The term “Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01;
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provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
INTEREST
The term “Interest” means, when used with respect to non-interest bearing Securities, interest payable on or after maturity.
INTEREST PAYMENT DATE
The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.
OFFICER’S CERTIFICATE
The term “Officer’s Certificate” means a certificate signed by any one of the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or Assistant Secretary of the Company and delivered to the Trustee.
OFFICER’S CERTIFICATE OF THE GUARANTOR
The term “Officer’s Certificate of the Guarantor” means a certificate signed by any one of the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or Assistant Secretary of the Guarantor and delivered to the Trustee.
OPINION OF COUNSEL
The term “Opinion of Counsel” means an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor or who may be other counsel, and delivered to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES
The term “Original Issue Discount Securities” means a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.
OUTSTANDING
The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except
| (a) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
| (b) | Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent |
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| (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice; |
| (c) | Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Company; |
| (d) | Securities which have been defeased pursuant to Section 13.02; and |
| (e) | Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange. |
PERIODIC OFFERING
The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.
PERSON
The term “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT
The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Company in either the City of Chicago or the Borough of Manhattan, the City of New York, designated and maintained by the Company pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.
REGULAR RECORD DATE
The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.
RELEVANT TAXING JURISDICTION
The term a “Relevant Taxing Jurisdiction” means each of (i) the government of Ireland or by any authority or agency therein or thereof having the power to tax, (ii) any other jurisdiction in which the Company or the Guarantor is organized or is otherwise resident for tax purposes or any political subdivision or any authority or agency therein or thereof having the power to tax, or (iii) any jurisdiction from or through which payment under or with respect to the Company or the Guarantor is made or any political subdivision or any authority or agency therein or thereof having the power to tax, in each of clauses (ii) and (iii) other than the United States in the case of U.S. dollar-denominated Securities issued by the Company.
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RESPONSIBLE OFFICER
The term “Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
SECURITIES ACT
The term “Securities Act” means the Securities Act of 1933, as amended.
SECURITY REGISTER AND SECURITY REGISTRAR
The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.
SHARES
The term “Shares” means the Class A ordinary shares, par value $0.0000225 per share, of the Guarantor authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Guarantor which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.
TAXES
The term “Taxes” shall have the meaning specified in Section 4.05.
TRUST INDENTURE ACT
Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
UNITED STATES
The term “United States” means the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, in an Officer’s Certificate or by one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); |
| (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, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms); |
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| (3) | whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security; |
| (4) | the date or dates on which the principal of the Securities of the series is payable; |
| (5) | the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date; |
| (6) | whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture; |
| (7) | the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable; |
| (8) | 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, repurchased or repaid, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; |
| (9) | the obligation, if any, of the Company to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof 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, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Company to select the Securities to be redeemed, repurchased or repaid; |
| (10) | if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a currency other than dollars; |
| (11) | the denominations in which Securities of the series shall be issuable, if other than $2,000 or integral multiples of $1,000 in excess thereof; |
| (12) | if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02; |
| (13) | if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series); |
| (14) | any deletions from, modifications of or additions to the Events of Default or covenants of the Company and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein); |
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| (15) | whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and |
| (16) | any other terms of the Securities of the series. |
All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officer’s Certificate or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the same time as or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
All Securities of any one series need not be issued at the same time, and, unless otherwise so provided by the Company, a series may be reopened for issuances of additional Securities of such series.
Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officer’s Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.
Section 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:
[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||||
| Dated: | By: |
| ||||
| Authorized Officer | ||||||
Section 2.03. Form, Execution, Authentication, Delivery and Dating of Securities. The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officer’s Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities. Such Securities may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.
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Each Security shall be executed on behalf of the Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary. Such signatures may be the electronic or manual signatures of the present or any future such officers.
With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be electronic or manual.
Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the electronic or manual signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officer’s Certificate pursuant to Section 16.04 and an Opinion of Counsel stating:
| (a) | if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture; |
| (b) | if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and |
| (c) | that each such Security, 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 a valid and legally binding obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles. |
If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 2.01 if such Officer’s Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
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With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.
Every Security shall be dated the date of its authentication.
No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by electronic or manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.04. Currency; Denominations; Regular Record Date. Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.
The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01. In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.
The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, the City of New York are authorized by law or required by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.
The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Company and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time 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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Section 2.05. Exchange and Registration of Transfer of Securities. Securities of any series may be exchanged for a like aggregate principal amount of Securities of other authorized denominations of such series. Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, the City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.
The Company (or its designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article Two provided. The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Security Register shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Security of a particular series at such office or agency, the Company shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Company or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.
All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Company and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Company shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.
Section 2.06. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced). Temporary Securities of any series shall be issuable in any authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution. Every temporary Security shall be executed by the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Company shall execute and shall furnish definitive Securities of such series evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose in the City of Chicago or the Borough of Manhattan, the City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations. Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
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Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution. In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08. Securities in Global Form. If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.
Section 2.09. Cancellation. All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Company or, if requested to do so by the Company, shall return such cancelled Securities to the Company.
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Section 2.10. Computation of Interest. Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.11. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers. After the issue date of any Securities, if additional Securities are issued having the same terms and conditions as the existing Securities in all respects (other than the issue date, public offering price, and to the extent applicable, first date of interest accrual and first interest payment date of such notes), but that are not fungible with the existing Securities for U.S. federal income tax purposes, such additional Securities will have a separate CUSIP number.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities; Applicability of Article. Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.
Section 3.02. Tax Redemption. The Company shall have the option to redeem the Securities of any series, in whole but not in part, at any time prior to the maturity date of the principal of the Securities of any series, upon the giving of not less than ten (10) nor more than sixty (60) days’ notice of tax redemption to Holders, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption (except Original Issue Discount Securities may be redeemed at the redemption price specified by the terms of each series of such Securities), if, with respect to such series:
| (a) | the Company determines that, as a result of: |
| (1) | any change in, or amendment to, the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction; or |
| (2) | any change in the official application, administration or written interpretation of such laws, regulations or rulings, which change or amendment becomes effective or, in the case of an interpretation, is announced on or after the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities, the Company or the Guarantor, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company or the Guarantor, as applicable; or |
| (b) | the Company determines, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Relevant Taxing Jurisdiction, which action is taken or brought on or after the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities under the laws of a jurisdiction other than a Relevant Taxing Jurisdiction, with respect to taxes imposed by such other jurisdiction, there is a substantial probability that the circumstances described above would exist. |
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| (c) | Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be. |
| (d) | The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price. |
| (e) | Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall deliver to the Trustee (i) an Officer’s Certificate stating that the Company or the Guarantor, as applicable, is entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and (ii) an opinion of independent counsel to the effect that there has been such change or amendment that would entitle the Company to redeem the Securities under this Indenture. The Trustee shall accept such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent described in this Section 3.02, in which event it shall be conclusive and binding on the Holders of the Securities being redeemed. The foregoing provisions under this Section 3.02 shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or the Guarantor, as the case may be, is incorporated or organized or tax resident or any political subdivision or taxing authority or agency thereof or therein; provided that if on the date of the succession the taxing jurisdiction is not already a Relevant Taxing Jurisdiction, the change or amendment of law becomes effective (or the announcement of the official interpretation is announced) after that date. |
Section 3.03. Notice of Redemption; Selection of Securities. In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, it shall fix a date for redemption, it shall prepare the notice of such redemption and it shall deliver or, at the Company’s request and expense, the Trustee shall deliver such notice of redemption at least ten (10) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register. Such delivery shall be by prepaid first class mail or, in the case of global securities, delivered electronically to the Depository. Any notice which is sent in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice. In any case, failure to give notice, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
Each notice of redemption shall specify:
| (1) | the date fixed for redemption and, if such redemption is subject to the completion of any condition, a statement to such effect; |
| (2) | the redemption price at which the applicable Securities are to be redeemed or, if the redemption price cannot be determined at the time notice is given, the formula pursuant to which the redemption price is to be determined; |
| (3) | the Place of Payment; |
| (4) | that payment will be made upon presentation and surrender of such Securities; and |
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| (5) | that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue. |
In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange.
Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption. The Company will give the Trustee notice of each redemption at least fifteen (15) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Securities to be redeemed shall be selected by lot if the Securities are in definitive form and, if the Securities are in global form, then in accordance with the procedures of the Depositary; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Section 3.04. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of Payment stated in such notice at the applicable redemption price and on and after said date (unless the Company and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue. On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Company at the applicable redemption price. Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Company shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04. At the option of the Company, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.
Upon presentation of any Security redeemed in part only (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The Company will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture. The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Company may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.
Section 4.02. Offices for Notices and Payments, etc. As long as any of the Securities of a series remain outstanding, the Company will designate and maintain, in the City of Chicago or the Borough of Manhattan, the City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Company in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment. The Company will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, the City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee in the City of Chicago and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby initially designates the Trustee, located at the Corporate Trust Office as a Security Registrar and as the office or agency of the Company in the City of Chicago where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities of any series or of this Indenture may be served.
Section 4.03. Provisions as to Paying Agent.
| (a) | Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section, |
| (1) | that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent, |
| (2) | that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held, |
| (3) | that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and |
| (4) | at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent. |
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| (b) | If the Company shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due. The Company will promptly notify the Trustee of any failure to take such action. |
| (c) | Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. |
| (d) | Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. |
| (e) | Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03. |
| (f) | To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis, to such Shares or other securities or property. |
Section 4.04. Statement by Officers as to Default.
| (a) | The Company will deliver to the Trustee, on or before a date not more than four months after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by it and, if the Company shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge. |
| (b) | The Company will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default. |
Section 4.05. Payment of Additional Amounts.
| (a) | All payments made on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of a similar nature (collectively, “Taxes”), unless the Company, the Guarantor, or a paying agent, as applicable, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. |
If the Company, the Guarantor or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of a Relevant Taxing Jurisdiction, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts), after such withholding or deduction, shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:
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| (1) | that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein; |
| (2) | that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges; |
| (3) | payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee; |
| (4) | that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent: |
| (i) | such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and |
| (ii) | at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement; |
| (5) | that would not have been imposed but for the presentation of a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later; |
| (6) | that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Company will be paid net of any FATCA Taxes imposed or required pursuant thereto; |
| (7) | that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made; |
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| (8) | in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or tax authority therein, including any U.S. withholding and backup withholding taxes; or |
| (9) | any combination of the foregoing clauses (1) through (8); |
nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts shall be payable in respect of any Taxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
| (b) | If the Company, the Guarantor, or a paying agent, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Company, the Guarantor, or the applicable paying agent shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Company or the Guarantor, as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. |
| (c) | Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make all withholdings and deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the Securities or Guarantees, as the case may be. Upon request, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide to the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of such Securities. |
| (d) | All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable. |
| (e) | The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due shall survive the termination of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such series and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein. |
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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Securityholder Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:
| (a) | semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, 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 Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company; and |
| (b) | at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished; |
provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.
Section 5.02. Preservation and Disclosure of Lists.
| (a) | The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
| (b) | The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities or any Guarantee, 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, the Guarantor and the Trustee that neither the Company, the Guarantor nor the Trustee nor any agent of any 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. |
Section 5.03. Reports by the Guarantor. The Company covenants:
| (a) | to file with the Trustee within thirty (30) days after the Guarantor files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Guarantor is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; |
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| (b) | to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and |
| (c) | to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. |
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive or actual knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Company and the Guarantor shall be deemed to have complied with this Section to the extent that such information, documents and reports are filed with the Commission via EDGAR, or any successor electronic delivery procedure.
Section 5.04. Reports by the Trustee.
| (a) | The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a). |
| (b) | A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Company. The Company agrees to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange. |
ARTICLE SIX
REMEDIES ON DEFAULT
Section 6.01. Events of Default. In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:
| (a) | default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or |
| (b) | default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days; or |
| (c) | with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or |
| (d) | failure on the part of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or, if applicable, the Guarantor in this Indenture applicable to |
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| Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Company or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company or if applicable, the Guarantor by the Trustee, or to the Company and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or |
| (e) | a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of the Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or |
| (f) | except for any case, proceeding, meeting, resolution or order in connection with a winding-up of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of the Company or the Guarantor, as applicable, either the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of the property of the Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors; |
| (g) | default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 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 ten (10) Business Days; or |
| (h) | any other Event of Default provided with respect to Securities of such series; |
then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.
The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that the terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and
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premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses, indemnities and liabilities incurred, and all advances made, by the Trustee, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The Company covenants that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be); and, in addition thereto, such further amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee.
In case the Company shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Company, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Company, the Guarantor (if applicable) or such other obligor, or to the creditors or property of the Company, the Guarantor (if applicable) or
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such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to the Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of the Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the Trustee, its agents and attorneys, all amounts due pursuant to Section 7.06 of this Indenture;
SECOND: In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if any, and (to the extent that such interest has been collected by the
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Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and
FOURTH: Any remainder to the Company or as a court of competent jurisdiction may direct.
Section 6.04. Proceedings by Securityholders. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses, indemnities and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing itself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.
Section 6.05. Remedies Cumulative and Continuing. All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
Section 6.06. Direction of Proceedings. The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, however, that (subject to the provisions of Sections 7.01 and 7.02(d)) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability.
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Section 6.07. Notice of Defaults. The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by sending such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the transmission or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.
Section 6.08. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.
Section 6.09. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
| (1) | in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series; |
| (2) | in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or |
| (3) | in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee.
| (a) | Except during the continuance of an Event of Default of a particular series, |
| (1) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
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| (2) | in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). |
| (b) | In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. |
| (c) | No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
| (1) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and |
| (2) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; |
| (3) | whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section; and |
| (4) | no provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. |
Section 7.02. Reliance on Documents, Opinions, etc. Subject to the provisions of Section 7.01:
| (a) | the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; |
| (b) | any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order, any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution, and any resolution of the Board of Directors of the Guarantor may be sufficiently evidenced by a Board Resolution of the Guarantor; |
| (c) | 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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel; |
| (d) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby; |
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| (e) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or the Guarantor personally or by agent or attorney; |
| (f) | the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder 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 by it with due care hereunder; |
| (g) | the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (h) | in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
| (i) | the Trustee shall not be deemed to have knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written notice thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; |
| (j) | 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; |
| (k) | the Trustee may request that the Company or the Guarantor 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; |
| (l) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate; and |
| (m) | the Trustee shall not be responsible for making any calculations hereunder, including, without limitation, original issue discount, and in all cases, the Trustee shall be entitled to rely on calculations made by the Company. |
Section 7.03. No Responsibility for Recitals, etc. The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee or any agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company, the Guarantor or the Trustee.
Section 7.05. Moneys to Be Held in Trust. Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.
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Section 7.06. Compensation, Indemnification and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct. The Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable U.S. federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.
Section 7.07. [Reserved].
Section 7.08. Conflicting Interest of Trustee.
| (a) | If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act. |
| (b) | In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by the conflicting interest as the names and addresses of such Holders appear on the Security Register. |
Section 7.09. Eligibility of Trustee. There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by U.S. federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars. If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10. Resignation or Removal of Trustee.
| (a) | The Trustee, or any trustee or trustees hereafter appointed, may, upon thirty (30) days’ written notice to the Company, at any time resign with respect to one or more or all series by giving written notice of resignation to the Company, and by mailing notice of such resignation to the Holders of then outstanding |
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| Securities of each series affected at their addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the transmission of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. |
| (b) | In case at any time any of the following shall occur: |
| (1) | the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or |
| (2) | the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Securityholder, or |
| (3) | the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, 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; |
then, in any such case, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
| (c) | The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may, upon thirty (30) days’ written notice to the Trustee and the Company, at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Company and appoint a successor trustee with respect to the Securities of such series with the consent of the Company. |
| (d) | Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11. |
| (e) | Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series. |
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Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act. Upon request of any such successor trustee, the Company and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.
No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by sending such notice to such Holders at their addresses as they shall appear on the Security Register. If the Company fails to send such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Company.
Section 7.12. Successor by Merger, etc. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13. Limitations on Rights of Trustee as Creditor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the
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fact that at the time of taking any such action the Holders of such specified amount have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.
Section 8.02. Proof of Ownership. Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.
If the Company or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Company or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.
Section 8.04. Company-Owned Securities Disregarded. In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Company or by any person directly or indirectly controlling or controlled by or under direct or indirect control with the Company, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the Trustee knows are so owned shall be disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Securityholders Bound. At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing
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written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.
ARTICLE NINE
SECURITYHOLDERS’ MEETINGS
Section 9.01. Purposes of Meetings. A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
| (1) | to give any notice to the Company, the Guarantor (if applicable) or the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six; |
| (2) | to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven; |
| (3) | to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or |
| (4) | to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law. |
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, to be held at such time and at such place in the Borough of Manhattan, the City of New York as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to all Holders of then Outstanding Securities of such series, by sending such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (180) days prior to the date fixed for the meeting. Failure of any Holder or Holders to receive such notice or any defect therein shall in no case affect the validity of any action taken at such meeting. Any meeting of Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series Outstanding, the Company and the Trustee are present in person or by proxy or shall have waived notice thereof before or after the meeting.
Section 9.03. Call of Meetings by Company or Securityholders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have sent or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Company or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by sending or publishing notice thereof as provided in Section 9.02.
Section 9.04. Qualification for Voting. To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder. The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
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Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting not to be Outstanding. The chairman of the meeting shall have no right to vote except as a Securityholder or proxy. Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders or proxies and on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of Securityholders. The Company, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for one or more of the following purposes:
| (a) | to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Article Eleven hereof; |
| (b) | to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Company or the Guarantor; |
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| (c) | to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series; |
| (d) | to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect; |
| (e) | to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities; |
| (f) | to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; |
| (g) | to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; |
| (h) | to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement shall materially adversely affect the interests of the Holders of any Securities then Outstanding. |
The Trustee is hereby authorized to join with the Company and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed by the Company, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02. Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Company, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:
| (a) | extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security; |
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| (b) | impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor); |
| (c) | reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults; |
| (d) | make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or |
| (e) | modify any of the provisions of this Section or Section 6.09, 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 Outstanding Security affected thereby; provided however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e). |
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Company and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution and delivery by the Company, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register. Any failure of the Company or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officer’s Certificate, and an Officer’s Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.
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Section 10.04. Notation on Securities. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform, in the opinion of the Company and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 11.01. Company and Guarantor May Consolidate, etc., Only on Certain Terms. So long as any Securities shall be Outstanding, neither the Company nor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
| (a) | (1) The Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which the Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company or the Guarantor, as the case may be, substantially as an entirety: |
| (i) | expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and |
| (ii) | in the case of the Company, is a corporation or other entity organized and existing under the laws of (u) the United States of America, any State thereof or the District of Columbia, (v) Ireland, (w) England and Wales, (x) Jersey, (y) any member state of the European Union as in effect on the date the Securities of the applicable series are first issued or (z) Switzerland. |
| (b) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or the Guarantor, as applicable, as a result of such transaction as having been incurred by the Company or the Guarantor, as applicable, 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 |
| (c) | the Company has delivered to the Trustee an Officer’s Certificate or the Guarantor has delivered to the Trustee an Officer’s Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 herein provided for relating to such transaction have been complied with. |
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Notwithstanding the foregoing, (A) any conveyance, transfer or lease of assets between or among the Guarantor or the Company and its subsidiaries shall not be prohibited hereunder, and (B) each of the Guarantor and the Company may, directly or indirectly, consolidate with or merge with or into an affiliate incorporated solely for the purpose of reincorporating the Guarantor or the Company, as applicable, in another jurisdiction within the United States of America, any State thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the Securities of the applicable series are first issued or Switzerland to realize tax or other benefits.
Section 11.02. Successor Person Substituted. So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company or the Guarantor, as applicable, is merged or converted or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS AND GOVERNMENT OBLIGATIONS
Section 12.01. Discharge of Indenture. This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
| (a) | either: |
| (i) | all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or |
| (ii) | all such Securities of such series not theretofore delivered to the Trustee for cancellation: |
| (A) | have become due and payable; or |
| (B) | will become due and payable at their stated maturity within one year; or |
| (C) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; |
and the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount of money sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any) with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;
| (b) | the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; and |
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| (c) | the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:
| (1) | All obligations under Section 7.06; |
| (2) | If money or Government Obligations shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or Government Obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02 and 12.04; |
| (3) | Any rights of Holders of the Securities of such series to require the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Company or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and |
| (4) | Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares, securities or other property. |
After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Company’s and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.
Section 12.02. Deposited Moneys and Government Obligations to Be Held in Trust by Trustee. Subject to Section 12.04, all moneys and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys or Government Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 12.02 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of the Company or the Guarantor, as the case may be, any money or Government Obligations held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations was deposited.
Section 12.03. Paying Agent to Repay Moneys and Government Obligations Held. In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys or Government Obligations then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys or Government Obligations.
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Section 12.04. Return of Unclaimed Moneys and Government Obligations. Any moneys or Government Obligations deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Company or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys or Government Obligations shall thereupon cease.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.
Section 13.02. Defeasance and Discharge. Upon the Company’s exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance”). Defeasance shall mean that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same); provided, however, that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Company’s obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen. Subject to compliance with this Article Thirteen, the Company may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.
Section 13.03. Covenant Defeasance. Upon the Company’s exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance”). Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by
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reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance. The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:
| (a) | The Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Government Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities. |
| (b) | 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 on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). |
| (c) | 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. |
| (d) | Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted. |
| (e) | In the case of an election with respect to Section 13.02, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. |
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| (f) | In the case of an election with respect to Section 13.03, the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. 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. |
| (g) | 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 therewith pursuant to Section 3.01. |
| (h) | The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with. |
| (i) | If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a), Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture. |
Section 13.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Company acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations were deposited.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations. No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Company, the Guarantor or any successor Person to either of them, either directly or through the Company, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
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ARTICLE FIFTEEN
GUARANTEE
Section 15.01. Guarantee. The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof. The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture or otherwise with respect to the Securities registered in such Holder’s name, and (b) the Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under this Indenture to the Trustee (each, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.
The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification or consent granted to the Company with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.
The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Company, first make demand upon or seek to enforce remedies against the Company or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.
The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.
The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Company, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Company under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.
The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.
The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of the Company or otherwise.
The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Company or by any defense which the Company may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding. No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.
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Section 15.02. Subrogation. The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Company in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.
Section 15.03. Notation of Guarantee. To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.
The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 16.01. Benefits of Indenture Restricted to Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 16.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
Section 16.03. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee), as follows: if to the Company, Accenture Global Capital DAC, c/o Accenture LLP, 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles; and if to the Guarantor, Accenture plc, c/o Accenture LLP, 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles. Any notice, direction, request or demand by the Company or the Guarantor, or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606, Email: jose.salasjr@bny.com, Phone: 312-827-8621, or at any other address previously furnished in writing to the Company by the Trustee.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer and/or the Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer and/or the Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Guarantor, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to
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act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Guarantor understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer and the Guarantor shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer, the Guarantor and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Guarantor, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer and the Guarantor agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 16.04. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officer’s Certificate or Officer’s Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (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 such person, 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 or not, in the opinion of such person, such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
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Section 16.05. Legal Holidays. Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.
Section 16.06. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
Section 16.07. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
Section 16.08. New York Contract. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State.
Section 16.09. Consent to Service. The Guarantor has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the Securities of any series to which the provisions of Article Fifteen shall apply brought in any federal or state court sitting in the Borough of Manhattan in the City of New York. By the execution and delivery of this Indenture, the Guarantor irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Guarantor, shall be deemed in every respect effective service of process upon the Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any Securities to which the provisions of Article Fifteen shall apply shall be Outstanding.
Section 16.10. Separability. In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 16.11. Assignment. The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in the event of any such assignment, the Company will remain liable for all such obligations. Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties hereto.
Section 16.12. Waiver of Jury Trial; Submission to Jurisdiction. EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE NOTES) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY. THE COMPANY AND GUARANTOR HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE SOUTHERN DISTRICT IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
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Section 16.13. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, pandemics or epidemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.
Section 16.14. Judgment Currency. The Company and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:
| (a) | if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, the City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, the City of New York, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, the City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, the City of New York preceding the day on which a final unappealable judgment is entered; and |
| (b) | their obligations under this Indenture to make payments in the Required Currency: |
| (1) | shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments; |
| (2) | shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and |
| (3) | shall not be affected by judgment being obtained for any other sum due under this Indenture. |
Section 16.15. Tax Withholding. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 16.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Company agrees (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Company’s possession (or, to the extent not in the Company’s possession, can be obtained through commercially reasonable efforts of the Company) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Company, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability. The terms of this Section shall survive the termination of this Indenture.
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Section 16.16. Office of Foreign Assets Control Sanctions Representations.
| (a) | The Company represents that neither it nor, to the Company’s knowledge, any of its affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively “Sanctions”); |
| (b) | The Company covenants that it will not, and, to the Company’s knowledge, its subsidiaries, directors or officers will not, directly or indirectly use any payments made pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person. |
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IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.
| Accenture Global Capital DAC | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Accenture plc | ||
| By: |
| |
| Name: | ||
| Title: | ||
| The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
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Annex A
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Company under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| Accenture plc | ||
| By: |
| |
| Name: | ||
| Title: | ||
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Exhibit 4.5
ACCENTURE CAPITAL INC.
ACCENTURE GLOBAL CAPITAL DAC
Issuers
ACCENTURE PLC
Guarantor
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
Trustee
INDENTURE
Dated as of
Debt Securities
CROSS-REFERENCE SHEET*
BETWEEN
Provisions of Sections 310 through 318(a) of the Trust Indenture Act and the within Indenture among Accenture Capital Inc., Accenture Global Capital DAC, Accenture plc and The Bank of New York Mellon Trust Company, N.A., Trustee:
| 310 | (a) (1) and (2) | 7.09 | ||
| 310 | (a) (3) and (4) | Not applicable | ||
| 310 | (b) | 7.08 and 7.10 (b) | ||
| 310 | (c) | Not applicable | ||
| 311 | (a) and (b) | 7.13 | ||
| 311 | (c) | Not applicable | ||
| 312 | (a) | 5.01 and 5.02 (a) | ||
| 312 | (b) and (c) | 5.02 (b) and (c) | ||
| 313 | (a), (b)(2) and (c) | 5.04 (a) | ||
| 313 | (b) (1) | Not applicable | ||
| 313 | (d) | 5.04 (b) | ||
| 314 | (a) | 5.03 | ||
| 314 | (b) | Not applicable | ||
| 314 | (c) (1) and (2) | 16.04 | ||
| 314 | (c) (3) | Not applicable | ||
| 314 | (d) | Not applicable | ||
| 314 | (e) | 16.04 | ||
| 314 | (f) | Not applicable | ||
| 315 | (a), (c) and (d) | 7.01 | ||
| 315 | (b) | 6.07 | ||
| 315 | (e) | 6.08 | ||
| 316 | (a) (1) | 6.01 and 6.06 | ||
| 316 | (a) (2) | Omitted | ||
| 316 | (a) last sentence | 8.04 | ||
| 316 | (b) | 6.04 | ||
| 317 | (a) | 6.02 | ||
| 317 | (b) | 4.03 (a) | ||
| 318 | (a) | 16.06 |
| * | This Cross-Reference Sheet is not part of the Indenture. |
i
TABLE OF CONTENTS
| Page | ||||
| ARTICLE ONE | ||||
| DEFINITIONS | ||||
| Section 1.01. | Definitions | 1 | ||
| ARTICLE TWO | ||||
| ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES | ||||
| Section 2.01. | Amount Unlimited; Issuable in Series | 7 | ||
| Section 2.02. | Form of Trustee’s Certificate of Authentication | 9 | ||
| Section 2.03. | Form, Execution, Authentication, Delivery and Dating of Securities | 9 | ||
| Section 2.04. | Currency; Denominations; Regular Record Date | 11 | ||
| Section 2.05. | Exchange and Registration of Transfer of Securities | 12 | ||
| Section 2.06. | Temporary Securities | 12 | ||
| Section 2.07. | Mutilated, Destroyed, Lost or Stolen Securities | 13 | ||
| Section 2.08. | Securities in Global Form | 13 | ||
| Section 2.09. | Cancellation | 14 | ||
| Section 2.10. | Computation of Interest | 14 | ||
| Section 2.11. | CUSIP Numbers | 14 | ||
| ARTICLE THREE | ||||
| REDEMPTION OF SECURITIES | ||||
| Section 3.01. | Redemption of Securities; Applicability of Article | 14 | ||
| Section 3.02. | Tax Redemption | 14 | ||
| Section 3.03. | Notice of Redemption; Selection of Securities | 15 | ||
| Section 3.04. | Payment of Securities Called for Redemption | 16 | ||
| ARTICLE FOUR | ||||
| PARTICULAR COVENANTS OF THE COMPANIES | ||||
| Section 4.01. | Payment of Principal, Premium and Interest | 17 | ||
| Section 4.02. | Offices for Notices and Payments, etc. | 17 | ||
| Section 4.03. | Provisions as to Paying Agent | 17 | ||
| Section 4.04. | Statement by Officers as to Default | 18 | ||
| Section 4.05. | Payment of Additional Amounts | 18 | ||
| ARTICLE FIVE | ||||
| SECURITYHOLDER LISTS AND REPORTS BY THE COMPANIES AND THE TRUSTEE | ||||
| Section 5.01. | Securityholder Lists | 21 | ||
| Section 5.02. | Preservation and Disclosure of Lists | 21 | ||
| Section 5.03. | Reports by the Guarantor | 21 | ||
| Section 5.04. | Reports by the Trustee | 22 | ||
| ARTICLE SIX | ||||
| REMEDIES ON DEFAULT | ||||
| Section 6.01. | Events of Default | 22 | ||
| Section 6.02. | Payment of Securities on Default; Suit Therefor | 24 | ||
| Section 6.03. | Application of Moneys Collected by Trustee | 25 | ||
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| Section 6.04. | Proceedings by Securityholders | 26 | ||
| Section 6.05. | Remedies Cumulative and Continuing | 26 | ||
| Section 6.06. | Direction of Proceedings | 26 | ||
| Section 6.07. | Notice of Defaults | 27 | ||
| Section 6.08. | Undertaking to Pay Costs | 27 | ||
| Section 6.09. | Waiver of Past Defaults | 27 | ||
| ARTICLE SEVEN | ||||
| CONCERNING THE TRUSTEE | ||||
| Section 7.01. | Duties and Responsibilities of Trustee | 28 | ||
| Section 7.02. | Reliance on Documents, Opinions, etc. | 28 | ||
| Section 7.03. | No Responsibility for Recitals, etc. | 29 | ||
| Section 7.04. | Ownership of Securities | 29 | ||
| Section 7.05. | Moneys to Be Held in Trust | 30 | ||
| Section 7.06. | Compensation, Indemnification and Expenses of Trustee | 30 | ||
| Section 7.07. | [Reserved] | 30 | ||
| Section 7.08. | Conflicting Interest of Trustee | 30 | ||
| Section 7.09. | Eligibility of Trustee | 30 | ||
| Section 7.10. | Resignation or Removal of Trustee | 31 | ||
| Section 7.11. | Acceptance by Successor Trustee | 32 | ||
| Section 7.12. | Successor by Merger, etc. | 32 | ||
| Section 7.13. | Limitations on Rights of Trustee as Creditor | 32 | ||
| ARTICLE EIGHT | ||||
| CONCERNING THE SECURITYHOLDERS | ||||
| Section 8.01. | Action by Securityholders | 33 | ||
| Section 8.02. | Proof of Ownership | 33 | ||
| Section 8.03. | Who Are Deemed Absolute Owners | 33 | ||
| Section 8.04. | Company-Owned Securities Disregarded | 33 | ||
| Section 8.05. | Revocation of Consents; Future Securityholders Bound | 34 | ||
| ARTICLE NINE | ||||
| SECURITYHOLDERS’ MEETINGS | ||||
| Section 9.01. | Purposes of Meetings | 34 | ||
| Section 9.02. | Call of Meetings by Trustee | 34 | ||
| Section 9.03. | Call of Meetings by Companies or Securityholders | 34 | ||
| Section 9.04. | Qualification for Voting | 35 | ||
| Section 9.05. | Regulations | 35 | ||
| Section 9.06. | Voting | 35 | ||
| ARTICLE TEN | ||||
| SUPPLEMENTAL INDENTURES | ||||
| Section 10.01. | Supplemental Indentures without Consent of Securityholders | 35 | ||
| Section 10.02. | Supplemental Indentures with Consent of Securityholders | 36 | ||
| Section 10.03. | Compliance with Trust Indenture Act; Effect of Supplemental Indentures | 37 | ||
| Section 10.04. | Notation on Securities | 38 | ||
| ARTICLE ELEVEN | ||||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | ||||
| Section 11.01. | Companies and Guarantor May Consolidate, etc., Only on Certain Terms | 38 | ||
| Section 11.02. | Successor Person Substituted | 39 | ||
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| ARTICLE TWELVE | ||||
| SATISFACTION AND DISCHARGE OF INDENTURE; | ||||
| Section 12.01. | Discharge of Indenture | 39 | ||
| Section 12.02. | Deposited Moneys and Government Obligations to Be Held in Trust by Trustee | 40 | ||
| Section 12.03. | Paying Agent to Repay Moneys and Government Obligations Held | 41 | ||
| Section 12.04. | Return of Unclaimed Moneys and Government Obligations | 41 | ||
| ARTICLE THIRTEEN | ||||
| DEFEASANCE AND COVENANT DEFEASANCE | ||||
| Section 13.01. | Applicability of Article; Companies’ Option to Effect Defeasance or Covenant Defeasance | 41 | ||
| Section 13.02. | Defeasance and Discharge | 41 | ||
| Section 13.03. | Covenant Defeasance | 42 | ||
| Section 13.04. | Conditions to Defeasance or Covenant Defeasance | 42 | ||
| Section 13.05. | Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions | 43 | ||
| ARTICLE FOURTEEN | ||||
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS | ||||
| Section 14.01. | Indenture and Securities Solely Corporate Obligations | 44 | ||
| ARTICLE FIFTEEN | ||||
| GUARANTEE | ||||
| Section 15.01. | Guarantee | 44 | ||
| Section 15.02. | Subrogation | 45 | ||
| Section 15.03. | Notation of Guarantee | 45 | ||
| ARTICLE SIXTEEN | ||||
| MISCELLANEOUS PROVISIONS | ||||
| Section 16.01. | Benefits of Indenture Restricted to Parties and Securityholders | 45 | ||
| Section 16.02. | Provisions Binding on Successors | 45 | ||
| Section 16.03. | Addresses for Notices, etc. | 45 | ||
| Section 16.04. | Evidence of Compliance with Conditions Precedent | 46 | ||
| Section 16.05. | Legal Holidays | 47 | ||
| Section 16.06. | Trust Indenture Act to Control | 47 | ||
| Section 16.07. | Execution in Counterparts | 47 | ||
| Section 16.08. | New York Contract | 47 | ||
| Section 16.09. | Consent to Service | 47 | ||
| Section 16.10. | Separability | 47 | ||
| Section 16.11. | Assignment | 47 | ||
| Section 16.12. | Waiver of Jury Trial; Submission to Jurisdiction | 48 | ||
| Section 16.13. | Force Majeure | 48 | ||
| Section 16.14. | Judgment Currency | 48 | ||
| Section 16.15. | Tax Withholding | 49 | ||
| Section 16.16. | Office of Foreign Assets Control Sanctions Representations | 49 | ||
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THIS INDENTURE, dated as of the day of , is among Accenture Capital Inc., a corporation duly incorporated and existing under the laws of the State of Delaware (hereinafter sometimes called “Accenture Capital”), Accenture Global Capital DAC, a designated activity company duly organized and existing under the laws of Ireland (hereinafter sometimes called “Accenture DAC” and, together with Accenture Capital, each, a “Company” and, collectively, the “Companies”), Accenture plc, a public limited company duly organized and existing under the laws of Ireland (hereinafter sometimes called the “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (hereinafter sometimes called the “Trustee”, which term shall include any successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Companies deem it necessary to issue from time to time for their lawful purposes securities (hereinafter called “Securities” or, in the singular, “Security”) evidencing their unsecured indebtedness and have duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited as to principal amount and which may be guaranteed from time to time by the Guarantor, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, each of the Companies and the Guarantor represents that all acts and things necessary to present a valid and binding indenture and agreement according to its terms have been done and performed, and the execution of this Indenture by each of the Companies and the Guarantor has in all respects been duly authorized, and each of the Companies and the Guarantor, in the exercise of legal rights and power in it vested, is executing this Indenture;
NOW, THEREFORE, in order to declare the terms and conditions upon which the Securities are authenticated, issued, and received, and in consideration of the foregoing premises and of the purchase and acceptance of the Securities by the Holders thereof, each of the Companies and the Guarantor covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto (except as otherwise provided therein) shall have the respective meanings specified in this Section. All other terms used in this Indenture which are defined in the Trust Indenture Act and the Securities Act shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act and in the Securities Act in each case, as in force at the date of this Indenture as originally executed.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture and any indenture supplemental hereto:
| (1) | the terms defined in this Article include the plural as well as the singular; |
| (2) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; |
| (3) | the words “herein”, “hereof”, “hereto” 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; |
| (4) | references herein to Articles, Sections and other subdivisions shall be to the Articles, Sections and other subdivisions of this Indenture; |
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| (5) | the word “or” is used inclusively (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”); |
| (6) | provisions apply to successive events and transactions; |
| (7) | the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings; |
| (8) | the masculine gender includes the feminine and the neuter; and |
| (9) | references to agreements and other instruments include subsequent amendments and supplements thereto. |
ADDITIONAL AMOUNTS
The term “Additional Amounts” shall have the meaning specified in Section 4.05.
BOARD OF DIRECTORS
The term “Board of Directors” means, with respect to a Company, the Board of Directors of such Company or any committee duly authorized to exercise the powers and authority of the Board of Directors of such Company with respect to this Indenture or any Security.
BOARD OF DIRECTORS OF THE GUARANTOR
The term “Board of Directors of the Guarantor” means the Board of Directors of the Guarantor or any committee duly authorized to exercise the powers and authority of the Board of Directors of the Guarantor with respect to this Indenture, including any Guarantee.
BOARD RESOLUTION
The term “Board Resolution” means a resolution certified by the Company Secretary or any Assistant Secretary of a Company to have been duly adopted by, or pursuant to the authority of, the Board of Directors of such Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
BOARD RESOLUTION OF THE GUARANTOR
The term “Board Resolution of the Guarantor” means a resolution certified by the Corporate Secretary or any Assistant Secretary of the Guarantor to have been duly adopted by, or pursuant to the authority of, the Board of Directors of the Guarantor and to be in full force and effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY
The term “Business Day” means, with respect to any Security, a day (other than a Saturday or Sunday) that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified on the face of the form of such Security, is neither a legal holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close.
COMMISSION
The term “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
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COMPANY
The term “Company” means each Person named as a “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
COMPANY ORDER
The term “Company Order” means, with respect to a Company, a written order signed in the name of such Company by the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, any assistant Treasurer, the Secretary or any Assistant Secretary of such Company.
CORPORATE TRUST OFFICE
The term “Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606 Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Companies, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Companies).
COVENANT DEFEASANCE
The term “covenant defeasance” shall have the meaning specified in Section 13.03.
DEFEASANCE
The term “defeasance” shall have the meaning specified in Section 13.02.
DEPOSITARY
The term “Depositary” means, with respect to any series of Securities, the clearing agency registered under the Exchange Act that is designated to act as Depositary for the Global Securities evidencing all or part of such Securities as contemplated by Section 2.01.
DOLLARS
The term “dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
ELECTRONIC MEANS
The term “Electronic Means” means the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
EVENT OF DEFAULT
The term “Event of Default” means any event specified as such in or as contemplated by Section 6.01.
EXCHANGE ACT
The term “Exchange Act” means the Securities Exchange Act of 1934, as amended.
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FATCA TAXES
The term “FATCA Taxes” shall have the meaning specified in Section 4.05.
GAAP
The term “GAAP” and the expression “generally accepted accounting principles” mean, unless otherwise specified with respect to any series of Securities pursuant to Section 2.01, such accounting principles as are generally accepted in the United States of America as of the date or time of any computation required hereunder.
GLOBAL SECURITY
The term “Global Security” means a Security in registered global form without interest coupons.
GOVERNMENT OBLIGATIONS
The term “Government Obligations” means securities that are (i) direct obligations of the United States or the other government which issued the currency in which the Securities of such series are denominated, in each case for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depository receipt.
GUARANTEE
The term “Guarantee” shall have the meaning specified in Article Fifteen.
GUARANTOR
The term “Guarantor” shall have the meaning specified in the first paragraph of this Indenture, unless a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter the term “Guarantor” shall mean such successor Person.
HOLDER
The terms “Holder”, “Holder of Securities” and “Securityholder”, and other similar terms, mean the person in whose name at the time a Security is registered on the registration books kept for that purpose in accordance with the terms hereof.
HOME COUNTRY JURISDICTION
The term “Home Country Jurisdiction” means the jurisdiction of organization of each Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the jurisdiction of organization of the Guarantor, as initially set forth in the Recitals hereto and from time to time thereafter as the applicable Company or Guarantor may notify the Trustee in writing upon any change in its jurisdiction of organization.
INDENTURE
The term “Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 2.01;
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provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 2.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
INTEREST
The term “Interest” means, when used with respect to non-interest bearing Securities, interest payable on or after maturity.
INTEREST PAYMENT DATE
The term “Interest Payment Date”, when used with respect to any Security, means the stated maturity of an installment of interest on such Security.
OFFICER’S CERTIFICATE
The term “Officer’s Certificate” means, with respect to a Company, a certificate signed by any one of the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or Assistant Secretary of such Company and delivered to the Trustee.
OFFICER’S CERTIFICATE OF THE GUARANTOR
The term “Officer’s Certificate of the Guarantor” means a certificate signed by any one of the Chief Executive Officer, President, any Vice President (without regard to qualifiers such as “Executive” or “Senior”), the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or Assistant Secretary of the Guarantor and delivered to the Trustee.
OPINION OF COUNSEL
The term “Opinion of Counsel” means an opinion in writing, reasonably acceptable to the Trustee, signed by legal counsel, who may be an employee of or counsel to a Company or the Guarantor or who may be other counsel, and delivered to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES
The term “Original Issue Discount Securities” means a Security issued pursuant to this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon declaration of acceleration pursuant to Section 6.01.
OUTSTANDING
The term “Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except
| (a) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
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| (b) | Securities, or portions thereof, for the payment, purchase or redemption of which moneys in the necessary amount (or, to the extent that such Security is payable in Shares or other securities or property, Shares or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional Shares or securities) shall have been deposited in trust with the Trustee or with any paying agent (other than the Companies) or shall have been set aside and segregated in trust by the Companies (if the Companies shall act as their own paying agent), provided, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provisions satisfactory to the Trustee shall have been made for giving such notice; |
| (c) | Securities in lieu of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide Holders in due course in whose hands such Securities are valid obligations of the Companies; |
| (d) | Securities which have been defeased pursuant to Section 13.02; and |
| (e) | Securities which have been converted or exchanged as contemplated by this Indenture into Shares or other securities or property, if the terms of such Security provide for such conversion or exchange. |
PERIODIC OFFERING
The term “Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including without limitation the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the stated maturity of the principal amount thereof and the redemption, repurchase or repayment provisions, if any, with respect thereto, are to be determined by the Companies upon the issuance of such Securities.
PERSON
The term “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT
The term “Place of Payment”, when used with respect to the Securities of any series, means the office or agency of the Companies in either the City of Chicago or the Borough of Manhattan, the City of New York, designated and maintained by the Companies pursuant to Section 4.02 and such other place or places where the principal of and premium, if any, and interest, if any, on the Securities of that series are payable as specified pursuant to Section 2.01.
REGULAR RECORD DATE
The term “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose pursuant to Sections 2.01 and 2.04.
RELEVANT TAXING JURISDICTION
The term a “Relevant Taxing Jurisdiction” means each of (i) the government of Ireland or by any authority or agency therein or thereof having the power to tax, (ii) any other jurisdiction in which a Company or the Guarantor is organized or is otherwise resident for tax purposes or any political subdivision or any authority or agency therein or thereof having the power to tax, or (iii) any jurisdiction from or through which payment under or with respect to a Company or the Guarantor is made or any political subdivision or any authority or agency therein or thereof having the power to tax, in each of clauses (ii) and (iii) other than the United States in the case of U.S. dollar-denominated Securities issued by the Companies.
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RESPONSIBLE OFFICER
The term “Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant treasurer, trust officer, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
SECURITIES ACT
The term “Securities Act” means the Securities Act of 1933, as amended.
SECURITY REGISTER AND SECURITY REGISTRAR
The term “Security Register” and “Security Registrar” shall have the respective meanings specified in Section 2.05.
SHARES
The term “Shares” means the Class A ordinary shares, par value $0.0000225 per share, of the Guarantor authorized at the date of this Indenture as originally signed, or any other class of stock resulting from successive changes or reclassifications of such Shares, and in any such case including any shares thereof authorized after the date of this Indenture, and any other shares of the Guarantor which do not have any priority in the payment of dividends or upon liquidation over any other class of shares.
TAXES
The term “Taxes” shall have the meaning specified in Section 4.05.
TRUST INDENTURE ACT
Except as otherwise provided in Section 10.03, the term “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture as originally executed; provided however, that in the event the Trust Indenture Act of 1939, as amended, is amended after the date of this Indenture, such term shall mean, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
UNITED STATES
The term “United States” means the United States of America, its territories, possessions and other areas subject to its jurisdiction, including the Commonwealth of Puerto Rico.
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, in an Officer’s Certificate or by one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); |
| (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, in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.03 or 10.04 or, if applicable, upon surrender in part of any Security for conversion or exchange into Shares or other securities or property pursuant to its terms); |
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| (3) | whether any Securities of the series are to be issuable in whole or in part in global form and, if so, (a) whether beneficial owners of interests in any such Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.05, and (b) the name of the Depositary with respect to any Global Security; |
| (4) | the date or dates on which the principal of the Securities of the series is payable; |
| (5) | the rate or rates, which may be fixed or variable, at which the Securities of the series shall bear interest, if any, and if the rate is variable, the manner of calculation thereof, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the determination of Holders of such Securities to whom interest is payable on any Interest Payment Date; |
| (6) | whether Securities of the series are entitled to the benefits of the Guarantee pursuant to Article Fifteen of this Indenture; |
| (7) | the place or places (in addition to such place or places specified in this Indenture) where the principal of and premium, if any, and interest, if any, on Securities of the series shall be payable; |
| (8) | 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, repurchased or repaid, in whole or in part, at the option of the Companies, pursuant to any sinking fund or otherwise; |
| (9) | the obligation, if any, of the Companies to redeem, repurchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof 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, repurchased, or repaid, in whole or in part, pursuant to such obligation, and, where applicable, the obligation of the Companies to select the Securities to be redeemed, repurchased or repaid; |
| (10) | if other than dollars, the currency or currencies, currency units or composite currency in which the Securities of the series shall be denominated and in which payments of principal of and premium, if any, and interest, if any, on and any other amounts payable with respect to such Securities shall or may be payable and, if applicable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, any such election may be made, and the time and manner of determining the exchange rate between the currency in which such Securities are stated to be payable and the currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Companies or a Holder thereof or otherwise, in a currency other than dollars; |
| (11) | the denominations in which Securities of the series shall be issuable, if other than $2,000 or integral multiples of $1,000 in excess thereof; |
| (12) | if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or which the Trustee shall be entitled to claim pursuant to Section 6.02; |
| (13) | if either or both of Section 13.02 and Section 13.03 shall be inapplicable to the Securities of the series (provided that if no such inapplicability shall be specified, then both Section 13.02 and Section 13.03 shall be applicable to the Securities of the series); |
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| (14) | any deletions from, modifications of or additions to the Events of Default or covenants of the Companies and the Guarantor with respect to any Securities of the series (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein); |
| (15) | whether the Securities of the series will be convertible into and/or exchangeable for Shares or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; and |
| (16) | any other terms of the Securities of the series. |
All Securities of any one series shall be substantially identical except (i) as to denomination and (ii) as may otherwise be provided in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officer’s Certificate or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Company Secretary or any Assistant Secretary of each Company and delivered to the Trustee at the same time as or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
All Securities of any one series need not be issued at the same time, and, unless otherwise so provided by the Companies, a series may be reopened for issuances of additional Securities of such series.
Securities of any particular series may be issued at various times, and may have different dates on which the principal or any installment of principal is payable, different rates of interest, if any, or different methods by which rates of interest may be determined, different dates on which such interest may be payable, different redemption, repurchase or repayment dates, and such other differences as are provided in or pursuant to the Board Resolution establishing the series, and any Officer’s Certificate, or any indenture supplemental hereto relating to such Securities.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution (or action taken pursuant thereto), any Officer’s Certificate or any supplemental indenture relating to such Securities may provide general terms or parameters for some or all of the Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Companies in accordance with other procedures specified in a Company Order as contemplated by the fourth paragraph of Section 2.03.
Section 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in the following form:
[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||||
| Dated: | By: |
| ||||
| Authorized Officer | ||||||
Section 2.03. Form, Execution, Authentication, Delivery and Dating of Securities. The Securities of each series shall be in substantially the forms approved from time to time by or pursuant to a Board Resolution, or established in one or more Officer’s Certificates or indentures supplemental hereto, and shall be printed, lithographed, engraved or otherwise produced in such manner as the officers executing the same may determine, as evidenced by their execution of such Securities. Such Securities may have such letters, numbers or other marks of
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identification or designation and such legends or endorsements printed, lithographed, engraved or otherwise produced thereon as the Companies may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.
Each Security shall be executed on behalf of each Company by its Chairman of the Board of Directors or its Vice Chairman of the Board of Directors or its President or any Executive Vice President or any Vice President and by its Treasurer or any Assistant Treasurer or its Secretary or any Assistant Secretary. Such signatures may be the electronic or manual signatures of the present or any future such officers.
With respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of the Guarantee endorsed on such Securities shall be executed on behalf of the Guarantor by its Chairman, its President, any of its Vice Presidents or by its Treasurer. The signature of any of these officers on the notation of Guarantee may be electronic or manual.
Each Security and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, each notation of Guarantee bearing the electronic or manual signatures of individuals who were at any time the proper officers of the Companies or the Guarantor, as the case may be, shall bind the Companies and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee. At any time and from time to time after the execution and delivery of this Indenture, the Companies may deliver Securities of any series executed by the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by this Section and Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to Section 7.01) shall be fully protected in relying upon, an Officer’s Certificate pursuant to Section 16.04 and an Opinion of Counsel stating:
| (a) | if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture; |
| (b) | if the terms of such Securities have been or, in the case of Securities offered in a Periodic Offering, will be established by or pursuant to Board Resolution as permitted by Section 2.01, that such terms have been or, in the case of Securities offered in a Periodic Offering, will be established in conformity with the provisions of this Indenture subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and |
| (c) | that each such Security, when authenticated and delivered by the Trustee and issued by the Companies in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute a valid and legally binding obligation of the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee will constitute valid and binding obligations of the Guarantor in each case, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles. |
If such form has or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and the Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of Section 2.01 and of the immediately preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 2.01 if such Officer’s Certificate addresses each such Security and are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Companies of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and this Section 2.03, as applicable, in connection with the first authentication of Securities of such series.
Every Security shall be dated the date of its authentication.
No Security or the Guarantee thereof, if applicable, shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by electronic or manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and, together with the Guarantee thereof, if applicable, is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Companies, and the Companies shall deliver such Security to the Trustee for cancellation as provided in Section 2.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.04. Currency; Denominations; Regular Record Date. Unless provided otherwise pursuant to Section 2.01 and Section 2.03, as applicable, the principal of and premium, if any, and interest, if any, on the Securities shall be payable in dollars.
The Securities shall be issuable in such denominations as may be specified as contemplated in Section 2.01. In the absence of any such specification with respect to any series, such Securities shall be issuable in the denominations contemplated by Section 2.01.
The term “Regular Record Date” as used with respect to an Interest Payment Date (except a date for payment of defaulted interest) shall mean such day or days as shall be specified in the terms of the Securities of any particular series as contemplated by Section 2.01; provided, however, that in the absence of any such provisions with respect to any series, such term shall mean (a) the last day of the calendar month next preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of a calendar month; or (b) the fifteenth day of a calendar month next preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month; provided, further, that if the day which would be the Regular Record Date as provided herein shall be a day on which banking institutions in the City of Chicago or the Borough of Manhattan, the City of New York are authorized by law or required by executive order to close, then it shall mean the next preceding day which shall not be a day on which such institutions are so authorized or required to close.
The person in whose name any Security is registered at the close of business on the Regular Record Date with respect to an Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Regular Record Date and prior to such Interest Payment Date; provided, however, that if and to the extent the Companies and, if the provisions of Article Fifteen apply to such Security, the Guarantor shall default in the payment of the interest due on such Interest Payment Date, then such defaulted interest shall cease to be payable to the Holder on such Regular Record Date and may either be paid to the persons in whose names Outstanding Securities are registered at the close of business on a subsequent record date established by notice given by mail by or on behalf of the Companies to the Holders of Securities of the series in default not less than fifteen (15) days preceding such subsequent record date, such record date to be not less than five (5) days preceding the date of payment of such defaulted interest, or be paid at any time 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 Companies 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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Section 2.05. Exchange and Registration of Transfer of Securities. Securities of any series may be exchanged for a like aggregate principal amount of Securities of other authorized denominations of such series. Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Companies for such purpose in the City of Chicago or the Borough of Manhattan, the City of New York, in accordance with the provisions of Section 4.02, and the Companies shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the exchange shall be entitled to receive.
The Companies (or their designated agent (the “Security Registrar”)) shall keep, at such office or agency, a Security Register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Companies shall register Securities and shall register the transfer of Securities as in this Article Two provided. The Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Security Register shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Security of a particular series at such office or agency, the Companies shall execute and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Companies or the Security Registrar shall register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount and stated maturity.
All Securities presented for registration of transfer or for exchange, redemption, repurchase or repayment, as the case may be, shall (if so required by the Companies or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Companies and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
All Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereof issued upon any registration of transfer or exchange of Securities shall be the valid obligation of the Companies and, with respect to any Guarantee, the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Companies may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Companies shall not be required to issue, exchange or register a transfer of (a) any Securities of any series for a period of fifteen (15) days next preceding any selection of such Securities of such series to be redeemed, repurchased or repaid, or (b) any Security of any such series selected for redemption, repayment or repurchase in whole or in part except, in the case of any such series to be redeemed, repurchased or repaid in part, the portion thereof not to be so redeemed, repurchased or repaid.
Section 2.06. Temporary Securities. Pending the preparation of definitive Securities of any series, the Companies may execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver temporary Securities of such series (printed, lithographed, typewritten or otherwise produced). Temporary Securities of any series shall be issuable in any authorized denominations, and substantially in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions, substitutions and variations as may be appropriate for temporary Securities, all as may be determined by the officers executing such temporary Securities, such determination to be evidenced by such execution. Every temporary Security shall be executed by the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the notation of Guarantee thereon shall be executed by the Guarantor, and such temporary Security shall be authenticated by the Trustee, in each case, upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Except in the case of temporary Securities in global form (which, except as otherwise provided pursuant to Section 2.01, shall be exchanged in accordance with the provisions of Section 2.05), without unnecessary delay the Companies shall execute and shall furnish definitive Securities of such series
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evidenced by the temporary Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Companies for such purpose in the City of Chicago or the Borough of Manhattan, the City of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of the same series and stated maturity of authorized denominations. Until so exchanged the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such temporary Global Security shall, unless otherwise provided therein pursuant to Section 2.01, be delivered to the office of the Depositary designated for such temporary Global Security for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may, in its discretion, execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, a new Security of the same series and stated maturities of principal and interest as the mutilated, destroyed, lost or stolen Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Companies and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Companies and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security, as the case may be, and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Companies. Upon the issuance of any substituted Security, the Companies may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith and in addition a further sum not exceeding ten dollars for each Security so issued in substitution. In case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Companies may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish the Companies and the Trustee with such security or indemnity as they may require to save each of them harmless and, in case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security, together with the notation of any Guarantee thereof, issued pursuant to the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities appertaining thereto and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08. Securities in Global Form. If Securities of a series are issuable in global form, then, notwithstanding the provisions of Section 2.01, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.03 or Section 2.06.
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Section 2.09. Cancellation. All Securities surrendered for payment, redemption, repurchase, repayment, exchange or registration of transfer or for credit against any sinking fund payment shall, if surrendered to the Companies or any agent of the Companies or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by or pursuant to any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities in its customary manner and, upon written request, deliver a certificate of such disposal to the Companies or, if requested to do so by the Companies, shall return such cancelled Securities to the Companies.
Section 2.10. Computation of Interest. Except as otherwise specified as contemplated by Section 2.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.11. CUSIP Numbers. The Companies in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption, repurchase or repayment as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption, repurchase or repayment and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption, repurchase or repayment shall not be affected by any defect in or omission of such numbers. The Companies will promptly notify the Trustee in writing of any change in the “CUSIP” numbers. After the issue date of any Securities, if additional Securities are issued having the same terms and conditions as the existing Securities in all respects (other than the issue date, public offering price, and to the extent applicable, first date of interest accrual and first interest payment date of such notes), but that are not fungible with the existing Securities for U.S. federal income tax purposes, such additional Securities will have a separate CUSIP number.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities; Applicability of Article. Redemption of Securities of any series as permitted or required by the terms thereof shall be made in accordance with such terms and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision of this Article, the provisions of such series of Securities shall govern.
Section 3.02. Tax Redemption. The Companies shall have the option to redeem the Securities of any series, in whole but not in part, at any time prior to the maturity date of the principal of the Securities of any series, upon the giving of not less than ten (10) nor more than sixty (60) days’ notice of tax redemption to Holders, at a redemption price equal to the principal amount thereof plus accrued but unpaid interest to the date of redemption (except Original Issue Discount Securities may be redeemed at the redemption price specified by the terms of each series of such Securities), if, with respect to such series:
| (a) | the Companies determine that, as a result of: |
| (1) | any change in, or amendment to, the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction; or |
| (2) | any change in the official application, administration or written interpretation of such laws, regulations or rulings, which change or amendment becomes effective or, in the case of an interpretation, is announced on or after the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities, the Companies or the Guarantor, as applicable, would be required to pay Additional Amounts with respect to such series of Securities or the Guarantee relating to such Securities on the next succeeding Interest Payment Date and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Companies or the Guarantor, as applicable; or |
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| (b) | the Companies determine, based upon an opinion of independent counsel of recognized standing that, as a result of any action taken by any legislative body of, taxing authority of, or any action brought in a court of competent jurisdiction in, a Relevant Taxing Jurisdiction, which action is taken or brought on or after the issue date of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee relating to such Securities under the laws of a jurisdiction other than a Relevant Taxing Jurisdiction, with respect to taxes imposed by such other jurisdiction, there is a substantial probability that the circumstances described above would exist. |
| (c) | Notwithstanding any other provision of this Indenture, no notice of redemption pursuant to clause (a) or (b) of this Section 3.02 may be given earlier than ninety (90) days prior to the earliest date on which the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor would be obligated to pay Additional Amounts as contemplated by clause (a) or (b), as the case may be. |
| (d) | The Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall also pay to each Holder, or make available for payment to each such Holder, on the redemption date any Additional Amounts resulting from the payment of such redemption price. |
| (e) | Prior to the delivery of any notice of redemption pursuant to this Section 3.02, the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall deliver to the Trustee (i) an Officer’s Certificate stating that the Companies or the Guarantor, as applicable, are entitled to effect or cause a redemption and setting forth a statement of facts showing that the conditions precedent of the right so to redeem or cause such redemption have occurred and (ii) an opinion of independent counsel to the effect that there has been such change or amendment that would entitle the Companies to redeem the Securities under this Indenture. The Trustee shall accept such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent described in this Section 3.02, in which event it shall be conclusive and binding on the Holders of the Securities being redeemed. The foregoing provisions under this Section 3.02 shall apply mutatis mutandis to any jurisdiction in which any successor Person to a Company or the Guarantor, as the case may be, is incorporated or organized or tax resident or any political subdivision or taxing authority or agency thereof or therein; provided that if on the date of the succession the taxing jurisdiction is not already a Relevant Taxing Jurisdiction, the change or amendment of law becomes effective (or the announcement of the official interpretation is announced) after that date. |
Section 3.03. Notice of Redemption; Selection of Securities. In case the Companies shall desire to exercise the right to redeem all or, as the case may be, any part of a series of Securities pursuant to this Article Three or the terms and provisions otherwise applicable to such series, they shall fix a date for redemption, they shall prepare the notice of such redemption and they shall deliver or, at the Companies’ request and expense, the Trustee shall deliver such notice of redemption at least ten (10) and not more than ninety (90) days prior to the date fixed for redemption to the Holders of the Securities and, in the case of Securities in global form, to the Depositary of such series which are Securities to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register. Such delivery shall be by prepaid first class mail or, in the case of global securities, delivered electronically to the Depository. Any notice which is sent in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice. In any case, failure to give notice, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
Each notice of redemption shall specify:
| (1) | the date fixed for redemption and, if such redemption is subject to the completion of any condition, a statement to such effect; |
| (2) | the redemption price at which the applicable Securities are to be redeemed or, if the redemption price cannot be determined at the time notice is given, the formula pursuant to which the redemption price is to be determined; |
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| (3) | the Place of Payment; |
| (4) | that payment will be made upon presentation and surrender of such Securities; and |
| (5) | that on and after said date interest, if any, thereon or on the portions thereof to be redeemed will cease to accrue. |
In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued of the same series. In the case of Securities of any series that are convertible or exchangeable into Shares or other securities or property, the notice of redemption shall state the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed shall commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange.
Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Companies or, if the provisions of Article Fifteen shall apply to the Securities to be redeemed, the Guarantor will deposit in trust with the Trustee or with one or more paying agents (or, if the Companies are acting as their own paying agent, segregate and hold in trust as provided in Section 4.03) an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption. The Companies will give the Trustee notice of each redemption at least fifteen (15) days prior to the date fixed for redemption (unless a shorter notice is acceptable to the Trustee) as to the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Securities to be redeemed shall be selected by lot if the Securities are in definitive form and, if the Securities are in global form, then in accordance with the procedures of the Depositary; provided however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. In the case of certificated Securities, the Trustee shall promptly notify the Companies in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Section 3.04. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the Place of Payment stated in such notice at the applicable redemption price and on and after said date (unless the Companies and, if the provisions of Article Fifteen apply to the Securities to be redeemed, the Guarantor shall default in the payment of the applicable redemption price) interest on the Securities or portions of Securities so called for redemption shall cease to accrue. On presentation and surrender of such Securities subject to redemption at said Place of Payment in said notice specified, the said Securities or the specified portions thereof called for redemption shall be paid and redeemed by the Companies at the applicable redemption price. Interest, if any, payable on an Interest Payment Date that occurs on or prior to the date fixed for redemption shall continue to be payable (but without interest thereon unless the Companies shall default in payment thereof) to the Holders thereof registered as such on the Security Register on the relevant Regular Record Date for such Interest Payment Date subject to the terms and provisions of Section 2.04. At the option of the Companies, payment may be made by check, wire transfer or other electronic means to (or to the order of) the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.
Upon presentation of any Security redeemed in part only (with, if the Companies or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Companies and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Companies, a new Security or Securities of the same series and stated maturity, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented.
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANIES
Section 4.01. Payment of Principal, Premium and Interest. The Companies will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on each of the Securities, whether payable in cash, Shares or other securities or property, at the place, at the respective times and in the manner provided in the terms of the applicable Securities and in this Indenture. The interest on Securities shall be payable only to or upon the written order of the Holders thereof and at the option of the Companies may be paid by wire transfer, other electronic means or mailing checks for such interest payable to or upon the order of such Holders at their last addresses as they appear on the Security Register for such Securities.
Section 4.02. Offices for Notices and Payments, etc. As long as any of the Securities of a series remain outstanding, the Companies will designate and maintain, in the City of Chicago or the Borough of Manhattan, the City of New York, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Companies in respect of the Securities of such series or of this Indenture may be served, and an office or agency where the Securities of such series may be presented for payment. The Companies will give to the Trustee notice of the location of each such office or agency and of any change in the location thereof. In case the Companies shall fail to maintain any such office or agency in the City of Chicago or the Borough of Manhattan, the City of New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee in the City of Chicago and the Companies hereby appoint the Trustee as their agent to receive all such presentations, notices and demands. The Companies may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Companies of their obligations to maintain an office or agency in each place of payment for Securities of any series for such purposes. The Companies will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Companies hereby initially designate the Trustee, located at the Corporate Trust Office as a Security Registrar and as the office or agency of the Companies in the City of Chicago where the Securities may be presented for payment and for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Companies in respect of the Securities of any series or of this Indenture may be served.
Section 4.03. Provisions as to Paying Agent.
| (a) | Whenever the Companies shall appoint a paying agent other than the Trustee with respect to the Securities of any series, they will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section, |
| (1) | that it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent, |
| (2) | that it will hold sums held by it as such agent for the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify the Trustee of the receipt of sums to be so held, |
| (3) | that it will give the Trustee notice of any failure by the Companies (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, and interest, if any, on the Securities of such series when the same shall be due and payable, and |
| (4) | at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent. |
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| (b) | If the Companies shall act as their own paying agent, they will, on or before each due date of the principal of and premium, if any, and interest, if any, on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal, premium, or interest so becoming due. The Companies will promptly notify the Trustee of any failure to take such action. |
| (c) | Whenever the Companies shall have one or more paying agents for any series of Securities, they will, prior to each due date of the principal of and premium, if any, and interest, if any, on any Securities of that series, deposit with a paying agent a sum sufficient to pay such principal, premium, or interest, so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities of such series entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Companies will promptly notify the Trustee of its action or failure so to act. |
| (d) | Anything in this Section to the contrary notwithstanding, the Companies may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. |
| (e) | Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 12.02 and 12.03. |
| (f) | To the extent that the terms of any Securities established pursuant to Section 2.01 provide that any principal of or premium or interest, if any, on any such Securities is or may be payable in Shares or other securities or property, then the provisions of this Section 4.03 shall apply, mutatis mutandis, to such Shares or other securities or property. |
Section 4.04. Statement by Officers as to Default.
| (a) | The Companies will deliver to the Trustee, on or before a date not more than four months after the end of each fiscal year of the Companies ending after the date hereof, an Officer’s Certificate, which shall include the statements provided for in Section 16.04 and stating whether or not to the best knowledge of the signers thereof the Companies are in default in the performance or observance of any of the terms, provisions and conditions of this Indenture to be performed or observed by them and, if the Companies shall be in default, specifying all such defaults and the nature thereof of which they may have knowledge. |
| (b) | The Companies will deliver to the Trustee, as soon as practicable upon becoming aware of any default (which word has the meaning of the word “default” as used in Section 6.07) or Event of Default with respect to a particular series of Securities that has occurred and is continuing, a written notice setting forth the details of such default or Event of Default. |
Section 4.05. Payment of Additional Amounts.
| (a) | All payments made on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of a similar nature (collectively, “Taxes”), unless the Company, the Guarantor, or a paying agent, as applicable, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. |
If the Companies, the Guarantor or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of a Relevant Taxing Jurisdiction, the Companies or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts), after such withholding or deduction, shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:
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| (1) | that would not have been imposed but for the existence of any present or former connection between such Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein; |
| (2) | that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges; |
| (3) | payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee; |
| (4) | that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent: |
| (i) | such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and |
| (ii) | at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Companies or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement; |
| (5) | that would not have been imposed but for the presentation of a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later; |
| (6) | that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Companies will be paid net of any FATCA Taxes imposed or required pursuant thereto; |
| (7) | that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made; |
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| (8) | in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or tax authority therein, including any U.S. withholding and backup withholding taxes; or |
| (9) | any combination of the foregoing clauses (1) through (8); |
nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts shall be payable in respect of any Taxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
| (b) | If a Company, the Guarantor, or a paying agent, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Companies, the Guarantor, or the applicable paying agent, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Companies, the Guarantor, or the applicable paying agent, shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Companies or the Guarantor, as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Companies, the Guarantor, or the applicable paying agent, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. |
| (c) | Each of the Companies, the Guarantor, or the applicable paying agent, as the case may be shall make all withholdings and deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the Securities or Guarantees, as the case may be. Upon request, the Companies the Guarantor, or the applicable paying agent, as the case may be, shall provide to the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of such Securities. |
| (d) | All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable. |
| (e) | The obligations of the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due shall survive the termination of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such series and shall apply mutatis mutandis to any jurisdiction in which any successor Person to a Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein. |
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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANIES AND THE TRUSTEE
Section 5.01. Securityholder Lists. The Companies covenant and agree that they will furnish or cause to be furnished to the Trustee with respect to the Securities of each series:
| (a) | semi-annually, not later than each Interest Payment Date (in the case of any series having semi-annual Interest Payment Dates) or not later than the dates determined pursuant to Section 2.01 (in the case of any series not having semi-annual Interest Payment Dates), a list, 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 Regular Record Date (or as of such other date as may be determined pursuant to Section 2.01 for such series) therefor, provided that the Companies shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Companies; and |
| (b) | at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Companies of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Securities of the particular series specified by the Trustee as of a date not more than fifteen (15) days prior to the time such information is furnished; |
provided, however, that in the case of clauses (a) and (b), if and so long as the Trustee shall be the Security Registrar, any such list shall exclude names and addresses received by the Trustee in its capacity as Security Registrar, and such list shall not be required to be furnished.
Section 5.02. Preservation and Disclosure of Lists.
| (a) | The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
| (b) | The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities or any Guarantee, 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 Companies, the Guarantor and the Trustee that neither the Companies, the Guarantor nor the Trustee nor any agent of any 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. |
Section 5.03. Reports by the Guarantor. The Companies covenant:
| (a) | to file with the Trustee within thirty (30) days after the Guarantor files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Guarantor is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; |
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| (b) | to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Companies with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and |
| (c) | to transmit by mail to all the Holders of Securities of each series, as the names and addresses of such Holders appear on the Security Register, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Companies with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. |
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive or actual knowledge or notice of any information contained therein or determinable from information contained therein, including the Companies’ compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Companies and the Guarantor shall be deemed to have complied with this Section to the extent that such information, documents and reports are filed with the Commission via EDGAR, or any successor electronic delivery procedure.
Section 5.04. Reports by the Trustee.
| (a) | The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15th following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15th, which complies with the provisions of such Section 313(a). |
| (b) | A copy of each such report shall, at the time of such transmission to Holders of Securities of a particular series, be filed by the Trustee with each stock exchange, if any, upon which the Securities of such series are listed and also with the Commission and the Companies. The Companies agree to notify the Trustee when and as the Securities of any series become listed or delisted on any stock exchange. |
ARTICLE SIX
REMEDIES ON DEFAULT
Section 6.01. Events of Default. In case one or more of the following Events of Default with respect to a particular series of Securities shall have occurred and be continuing:
| (a) | default in the payment of the principal of or premium, if any, on the Securities of such series as and when the same shall become due and payable (whether payable in cash or in Shares or other securities or property), either at maturity, upon redemption, repurchase or repayment, by declaration or otherwise; or |
| (b) | default in the payment of any installment of interest, if any, or in the payment of any Additional Amount upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days; or |
| (c) | with respect to any series of Securities to which the provisions of Article Fifteen shall apply as contemplated by Section 2.01, the Guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable with respect to the Securities of such series or the Guarantee is found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor in accordance with the terms hereof) with respect to the Securities of such series; or |
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| (d) | failure on the part of the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Companies or, if applicable, the Guarantor in this Indenture applicable to Securities of such series for a period of ninety (90) days after the date on which written notice of such failure, specifying such failure and requiring the Companies or, if applicable, the Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Companies or if applicable, the Guarantor by the Trustee, or to the Companies and if applicable, the Guarantor and the Trustee by the Holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities of such series at the time Outstanding; or |
| (e) | a court having jurisdiction in the premises shall enter a decree or order for relief in respect of a Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointment of an administrator, receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of property of such Company or, if applicable, the Guarantor or ordering the winding-up or liquidation of its affairs and such decree, order or appointment shall remain unstayed or in place and in effect for a period of ninety (90) days; or |
| (f) | except for any case, proceeding, meeting, resolution or order in connection with a winding-up of a Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for the purposes of a solvent reorganization or reconstruction of such Company or the Guarantor, as applicable, either such Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law in any jurisdiction now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case or proceeding under any such law, or shall consent to the appointment of or taking possession by an administrator, receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of such Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor or for any substantial part of the property of such Company or, if applicable, the Guarantor or shall make any general assignment for the benefit of creditors; |
| (g) | default in the delivery of any Shares, together with cash in lieu of fractional shares, or any other securities or property (including cash) when required to be delivered upon conversion of any convertible Security of such series established pursuant to Section 2.01 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 ten (10) Business Days; or |
| (h) | any other Event of Default provided with respect to Securities of such series; |
then in each and every such case, unless the principal amount of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor (and to the Trustee if given by Holders of such Securities) may declare the principal amount of and accrued and unpaid interest, if any, on all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of such series to be due and payable immediately, and upon any such declaration such principal amount (or specified amount), and accrued and unpaid interest, if any, shall become and shall be immediately due and payable.
The foregoing provisions, however, are subject to the conditions that if, at any time after the principal of and accrued and unpaid interest, if any, on the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay (or, to the extent that the
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terms of the Securities of such series established pursuant to Section 2.01 expressly provide for payment to be made in Shares or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay) all matured installments of interest, if any, due upon all the Securities of such series and the principal of and premium, if any, on all Securities of such series (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) which shall have become due otherwise than by acceleration (with interest, if any, upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series, as the case may be (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be), to the date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses, indemnities and liabilities incurred, and all advances made, by the Trustee, and any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms shall have been remedied or waived, then and in every such case the Holders of a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Companies and to the Trustee, may rescind and annul such declaration and its consequences; provided no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Companies, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Companies, the Guarantor (if applicable), the Trustee and the Holders of Securities, as the case may be, shall continue as though no such proceedings had been taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The Companies covenant that (1) in case default shall be made in the payment of any installment of interest, if any, on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (2) in case default shall be made in the payment of the principal of or premium, if any, on any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series or upon redemption, repurchase or repayment or upon declaration or otherwise, then upon demand of the Trustee, the Companies will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series, for principal, premium, if any, or interest, if any, as the case may be, with interest upon the overdue principal, premium, if any and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase, repayment or acceleration of such series, as the case may be); and, in addition thereto, such further amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee.
In case the Companies shall fail forthwith to pay such amounts upon such demand by the Trustee and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, such amounts have not been paid by the Guarantor under the Guarantee, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Companies, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon such Securities and collect in the manner provided by law out of the property of the Companies, the Guarantor (if applicable) or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.
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In case there shall be pending proceedings for the bankruptcy or for the reorganization of a Company, the Guarantor (with respect to any series of Securities to which the provisions of Article Fifteen shall apply) or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of a Company, the Guarantor (if applicable) or such other obligor, or in the case of any other judicial proceedings relative to the Companies, the Guarantor (if applicable) or such other obligor, or to the creditors or property of a Company, the Guarantor (if applicable) or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise to the extent permitted by the court, to file and prove a claim or claims for the whole amount of principal (or, with respect to Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee) and of the Holders of the Securities of such series allowed in any such judicial proceedings relative to such Company, the Guarantor (if applicable) or other obligor upon the Securities of such series, or to the creditors or property of such Company, the Guarantor (if applicable) or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders of such series and of the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of the Securities of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses, indemnities and liabilities incurred, and all advances made, by the Trustee.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the Trustee, its agents and attorneys, all amounts due pursuant to Section 7.06 of this Indenture;
SECOND: In case the principal of the Securities in respect of which moneys have been collected shall not have become due, to the payment of interest, if any, on such Securities in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest, if any, specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
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THIRD: In case the principal of the Securities in respect of which moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal, premium, if any, and interest, if any, and (to the extent that such interest has been collected by the Trustee) interest upon overdue installments of interest, if any, at the same rate as the rate of interest specified in such Securities (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption, repurchase or repayment or acceleration); and, in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, if any, or of interest, if any, over principal and premium, if any, or of any such Security over any other such Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest, if any; and
FOURTH: Any remainder to the Companies or as a court of competent jurisdiction may direct.
Section 6.04. Proceedings by Securityholders. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory as it may require against the costs, expenses, indemnities and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by availing itself of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of the principal of and premium, if any, and interest, if any, on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. With respect to Original Issue Discount Securities, principal shall mean such amount as shall be due and payable as specified in or established pursuant to the terms of such Securities.
Section 6.05. Remedies Cumulative and Continuing. All powers and remedies given by this Article Six to the Trustee or to the Holders of Securities shall, to the extent permitted by law, be deemed cumulative and not exclusive, of any thereof or of any other powers and remedies available to the Trustee or the Holders of Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default with respect to such Securities occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
Section 6.06. Direction of Proceedings. The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, however, that (subject to the provisions of Sections 7.01 and 7.02(d)) the Trustee shall have the right to decline to follow any such direction (i) that is in conflict with this Indenture or the Securities of such series, (ii) if the Trustee, being advised by counsel, determines that the action or proceedings so directed may not lawfully be taken or (iii) if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability.
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Section 6.07. Notice of Defaults. The Trustee shall, within ninety (90) days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of then Outstanding Securities of that series, by sending such notice to such Holders at their addresses as they shall appear on the Security Register, unless in each case such defaults shall have been cured before the transmission or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined to be the events specified in Sections 6.01(a), (b), (c), (d), (e), (f) and (g) and any additional events specified in the terms of any series of Securities pursuant to Section 2.01, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in Section 6.01(d) or in the terms of any Securities established pursuant to Section 2.01); and provided that, except in the case of default in the payment of the principal of and premium, if any, and interest, if any, on any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.
Section 6.08. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder of any series, or group of such Securityholders, holding in the aggregate more than ten percent (10%) in aggregate principal amount of any Securities of any series, or to any suit instituted by any Securityholders for the enforcement of the payment of the principal of and premium, if any, and interest, if any, on any Security on or after the due date expressed in such Security or for the enforcement of the right, if any, to convert or exchange any Security into Shares or other securities in accordance with its terms.
Section 6.09. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
| (1) | in the payment of the principal of and premium, if any, and interest, if any, on any Security of such series; |
| (2) | in the case of any Securities which are convertible into or exchangeable for Shares or other securities or property, a default in any such conversion or exchange; or |
| (3) | in respect of a covenant or provision hereof which under Article Ten cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture and the Securities of such series; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee.
| (a) | Except during the continuance of an Event of Default of a particular series, |
| (1) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
| (2) | in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). |
| (b) | In case an Event of Default with respect to a particular series has occurred (which has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. |
| (c) | No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
| (1) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and |
| (2) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of Securities pursuant to Section 6.06 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; |
| (3) | whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section; and |
| (4) | no provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. |
Section 7.02. Reliance on Documents, Opinions, etc. Subject to the provisions of Section 7.01:
| (a) | the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon 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 Companies mentioned herein shall be sufficiently evidenced by a Company Order, any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution, and any resolution of the Board of Directors of the Guarantor may be sufficiently evidenced by a Board Resolution of the Guarantor; |
| (c) | 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 or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel; |
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| (d) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses, and liabilities which might be incurred therein or thereby; |
| (e) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Companies or the Guarantor personally or by agent or attorney; |
| (f) | the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder 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 by it with due care hereunder; |
| (g) | the Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (h) | in no event shall the Trustee be responsible or liable for any special, punitive, indirect or consequential (including but not limited to loss of profit) loss or damage, irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
| (i) | the Trustee shall not be deemed to have knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has received actual written notice thereof at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; |
| (j) | 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; |
| (k) | the Trustee may request that the Companies or the Guarantor 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; |
| (l) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate; and |
| (m) | the Trustee shall not be responsible for making any calculations hereunder, including, without limitation, original issue discount, and in all cases, the Trustee shall be entitled to rely on calculations made by the Companies. |
Section 7.03. No Responsibility for Recitals, etc. The recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Companies and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Companies of Securities or the proceeds thereof.
Section 7.04. Ownership of Securities. The Trustee or any agent of the Companies, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Companies, the Guarantor or the Trustee.
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Section 7.05. Moneys to Be Held in Trust. Subject to the provisions of Section 12.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Companies to pay thereon.
Section 7.06. Compensation, Indemnification and Expenses of Trustee. The Companies covenant and agree to pay to the Trustee from time to time such compensation as the Companies and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and, except as otherwise expressly provided, the Companies will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation, expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its own negligence or willful misconduct. The Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, jointly and severally also covenant to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Companies under this Section to compensate the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable U.S. federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture, the resignation or removal of the Trustee and the payment of the Securities.
Section 7.07. [Reserved].
Section 7.08. Conflicting Interest of Trustee.
| (a) | If the Trustee has or shall acquire any conflicting interest, as defined in the Trust Indenture Act, it shall, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in the Trust Indenture Act. |
| (b) | In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section, the Trustee shall, within ten (10) days after the expiration of such ninety-day period, transmit notice of such failure to all Securityholders of the series affected by the conflicting interest as the names and addresses of such Holders appear on the Security Register. |
Section 7.09. Eligibility of Trustee. There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to supervision or examination by U.S. federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars. If such corporation publishes reports of condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
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Section 7.10. Resignation or Removal of Trustee.
| (a) | The Trustee, or any trustee or trustees hereafter appointed, may, upon thirty (30) days’ written notice to the Companies, at any time resign with respect to one or more or all series by giving written notice of resignation to the Companies, and by mailing notice of such resignation to the Holders of then outstanding Securities of each series affected at their addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Companies shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within thirty (30) days after the transmission of such notice of resignation to the Securityholders, the resigning Trustee may petition at the expense of the Companies any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. |
| (b) | In case at any time any of the following shall occur: |
| (1) | the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of Securities after written request therefor by the Companies or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or |
| (2) | the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall fail to resign after written request therefor by the Companies or by any such Securityholder, or |
| (3) | the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, 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; |
then, in any such case, the Companies may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Boards of Directors of the Companies, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.08, any Securityholder of such series who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
| (c) | The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may, upon thirty (30) days’ written notice to the Trustee and the Companies, at any time remove the Trustee with respect to Securities of such series by so notifying the Trustee and the Companies and appoint a successor trustee with respect to the Securities of such series with the consent of the Companies. |
| (d) | Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11. |
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| (e) | Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series. |
Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Companies, the Guarantor and its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Companies, the Guarantor or the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall assign, transfer and deliver to such successor or trustee all property and money held by such trustee so ceasing to act. Upon request of any such successor trustee, the Companies and the Guarantor shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Companies, the Guarantor (if any of such series of Securities are entitled to the benefits of Article Fifteen) and the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee.
No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this Section, the Companies shall give notice of the succession of such trustee hereunder to the Holders of Securities of each series affected, by sending such notice to such Holders at their addresses as they shall appear on the Security Register. If the Companies fail to send such notice in the prescribed manner within ten (10) days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so given at the expense of the Companies.
Section 7.12. Successor by Merger, etc. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13. Limitations on Rights of Trustee as Creditor. If and when the Trustee shall be or become a creditor of the Companies (or any other obligor with respect to the Securities, which may include the Guarantor), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Companies (or any such other obligor).
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ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Action by Securityholders. Whenever in this Indenture it is provided that the Holders of a specified aggregate principal amount of the Outstanding Securities of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such specified amount have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Securityholders in person or by agent or proxy appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Companies, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
In determining whether the Holders of a specified aggregate principal amount of the Outstanding Securities have taken any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the principal amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.
Section 8.02. Proof of Ownership. Subject to the provisions of Sections 7.01, 7.02 and 9.05, the ownership of Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
Section 8.03. Who Are Deemed Absolute Owners. The Companies, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent and any Security Registrar may, subject to Section 2.04, treat the person in whose name a Security shall be registered upon the Security Register as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Companies, the Guarantor (if applicable), the Trustee, any paying agent, any transfer agent nor any Security Registrar shall be affected by any notice to the contrary.
If the Companies or, if applicable, the Guarantor shall solicit from the Holders of all or any series of Securities any request, demand, authorization, direction, notice, consent, waiver or other act, the Companies or, if applicable, the Guarantor may at its option (but is not obligated to), by or pursuant to a Board Resolution or Board Resolution of the Guarantor, as the case may be, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of the applicable Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the applicable Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of all or any series of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the applicable record date.
Section 8.04. Company-Owned Securities Disregarded. In determining whether the Holders of the required aggregate principal amount of all or any series of Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, Securities which are owned by the Companies or by any person directly or indirectly controlling or controlled by or under direct or indirect control with the Companies, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities which the Trustee knows are so owned shall be disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgor’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Companies. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
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Section 8.05. Revocation of Consents; Future Securityholders Bound. At any time prior to the taking of any action by the Holders of the aggregate principal amount of all or any series of the Outstanding Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the Holders of the aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Companies, the Guarantor (if applicable), the Trustee and the Holders of all the Securities of each series intended to be affected thereby.
ARTICLE NINE
SECURITYHOLDERS’ MEETINGS
Section 9.01. Purposes of Meetings. A meeting of Securityholders of any series may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
| (1) | to give any notice to the Companies, the Guarantor (if applicable) or the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Six; |
| (2) | to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article Seven; |
| (3) | to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or |
| (4) | to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of such series, as the case may be, under any other provision of this Indenture or under applicable law. |
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any series to take any action specified in Section 9.01, to be held at such time and at such place in the Borough of Manhattan, the City of New York as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to all Holders of then Outstanding Securities of such series, by sending such notice to such Holders at their addresses as they shall appear on the Security Register, not less than twenty (20) nor more than one hundred eighty (180) days prior to the date fixed for the meeting. Failure of any Holder or Holders to receive such notice or any defect therein shall in no case affect the validity of any action taken at such meeting. Any meeting of Holders of Securities of any series shall be valid without notice if the Holders of all Securities of such series Outstanding, the Companies and the Trustee are present in person or by proxy or shall have waived notice thereof before or after the meeting.
Section 9.03. Call of Meetings by Companies or Securityholders. In case at any time the Companies, pursuant to a Board Resolution, or the Holders of at least ten (10%) percent in aggregate principal amount of the Securities of any series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Securityholders of Securities of such series to take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have sent or published, as provided in Section 9.02, the notice of such meeting within thirty (30) days after receipt of such request, then the Companies or the Holders of Securities of such series in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 9.01, by sending or publishing notice thereof as provided in Section 9.02.
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Section 9.04. Qualification for Voting. To be entitled to vote at any meeting of Securityholders a person shall be a Holder of one or more Securities of the series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder. The only persons who shall be entitled to be present or to speak at any meeting of the Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Companies and their counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Companies or by Securityholders as provided in Section 9.03, in which case the Companies or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting of Securityholders of any series, each Securityholder or proxy shall be entitled to one vote for each $1,000 principal amount at maturity of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting not to be Outstanding. The chairman of the meeting shall have no right to vote except as a Securityholder or proxy. Any meeting of Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held as so adjourned without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the Securityholders or proxies and on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall be signed and verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Companies and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of Securityholders. The Companies, when authorized by a Board Resolution, the Guarantor, when authorized by a Board Resolution of the Guarantor (if applicable), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for one or more of the following purposes:
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| (a) | to evidence the succession of another Person to a Company or the Guarantor, or successive successions, and the assumption by any successor Person of the covenants, agreements and obligations of such Company or the Guarantor pursuant to Article Eleven hereof; |
| (b) | to add to the covenants of the Companies or the Guarantor for the benefit of the Holders of all or any series of Securities, to add any additional Events of Default with respect to all or any series of Securities, or to surrender any right or power conferred upon the Companies or the Guarantor; |
| (c) | to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Global Securities and to make all appropriate changes for such purpose, and to add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of uncertificated Securities of any series; |
| (d) | to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture or in the terms of any series of Securities which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or in the terms of any series of Securities; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture or in the terms of any series of Securities as shall not adversely affect the interests of the Holders of any series of Securities in any material respect; |
| (e) | to conform the terms of the Indenture or the Securities of a series or the Guarantee to the description thereof contained in any prospectus or other offering document or memorandum relating to the offer and sale of such Securities; |
| (f) | to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series, and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to Section 7.11; |
| (g) | to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; |
| (h) | to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement shall materially adversely affect the interests of the Holders of any Securities then Outstanding. |
The Trustee is hereby authorized to join with the Companies and, if applicable, the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed by the Companies, the Guarantor (if applicable) and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02. Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Companies, when authorized by a Board Resolution, the Guarantor (if applicable), when authorized by a Board Resolution of the Guarantor, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that, without the consent of the Holder of each Outstanding Security affected thereby, no such supplemental indenture shall:
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| (a) | extend the stated maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or change the due date of any installment of principal or interest on, or payments of Additional Amounts, or reduce the amount due and payable upon acceleration of the maturity thereof or the amount provable in bankruptcy, or make the principal of or interest or premium, if any, on any Security payable in any coin or currency other than that provided in such Security; |
| (b) | impair the right to institute suit for the enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor); |
| (c) | reduce the aforesaid percentage in principal amount of Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required pursuant to Section 6.01 to waive defaults; |
| (d) | make any change that adversely affects the right, if any, to convert or exchange any Security for Shares or other securities or property in accordance with its terms; or |
| (e) | modify any of the provisions of this Section or Section 6.09, 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 Outstanding Security affected thereby; provided however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 7.11 and 10.01(e). |
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Companies and the Guarantor, if applicable, accompanied by a copy of a Board Resolution and, if applicable, a Board Resolution of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Companies and, if applicable, the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution and delivery by the Companies, the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Companies shall give notice of such supplemental indenture to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security Register. Any failure of the Companies or, if applicable, the Guarantor to mail or publish such notice, or any defect therein, shall not, however in any way impair or affect the validity of any such supplemental indenture.
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Companies, the Guarantor (if applicable) and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
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The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel, an Officer’s Certificate, and an Officer’s Certificate of the Guarantor stating that the execution of such supplemental indenture is authorized or permitted by this Indenture as conclusive evidence that any such supplemental indenture complies with the provisions of this Article Ten.
Section 10.04. Notation on Securities. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provision of this Article Ten may bear a notation in form approved by the Companies as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform, in the opinion of the Companies and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Companies, authenticated by the Trustee and delivered, without charge to the Securityholders, in exchange for the Securities of such series then Outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 11.01. Companies and Guarantor May Consolidate, etc., Only on Certain Terms. So long as any Securities shall be Outstanding, none of the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall consolidate with or merge or convert into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
| (a) | (1) the applicable Company or the Guarantor, as the case may be, is the surviving entity, or (2) the Person formed by such consolidation or conversion or into which such Company or the Guarantor, as applicable, is merged or converted or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of such Company or the Guarantor, as the case may be, substantially as an entirety: |
| (i) | expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, in the case of a Company, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of such Company to be performed or observed or, in the case of the Guarantor, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the due and punctual payment of all payment obligations under the Guarantee and the performance of every other covenant of this Indenture on the part of the Guarantor to be performed or observed and which supplemental indenture shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Shares or other securities, if any such Securities are then outstanding; and |
| (ii) | in the case of a Company, is a corporation or other entity organized and existing under the laws of (u) the United States of America, any State thereof or the District of Columbia, (v) Ireland, (w) England and Wales, (x) Jersey, (y) any member state of the European Union as in effect on the date the Securities of the applicable series are first issued or (z) Switzerland. |
| (b) | immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the applicable Company or the Guarantor, as applicable, as a result of such transaction as having been incurred by such Company or the Guarantor, as applicable, 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 |
| (c) | the applicable Company has delivered to the Trustee an Officer’s Certificate or the Guarantor has delivered to the Trustee an Officer’s Certificate of the Guarantor, as the case may be, and, in either case, an Opinion of Counsel, each stating that such consolidation, merger, conversion, 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 herein provided for relating to such transaction have been complied with. |
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Notwithstanding the foregoing, (A) any conveyance, transfer or lease of assets between or among the Guarantor or the applicable Company and its subsidiaries shall not be prohibited hereunder, and (B) each of the Guarantor and such Company may, directly or indirectly, consolidate with or merge with or into an affiliate incorporated solely for the purpose of reincorporating the Guarantor or such Company, as applicable, in another jurisdiction within the United States of America, any State thereof or the District of Columbia, Ireland, England and Wales, Jersey, any member state of the European Union as in effect on the date the Securities of the applicable series are first issued or Switzerland to realize tax or other benefits.
Section 11.02. Successor Person Substituted. So long as any Securities shall be outstanding, upon any consolidation, merger or conversion, or any conveyance, transfer or lease of the properties and assets of the applicable Company or the Guarantor substantially as an entirety, in accordance with Section 11.01, the successor Person formed by such consolidation or into which such Company or the Guarantor, as applicable, is merged or converted or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, such Company or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as such Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS AND GOVERNMENT OBLIGATIONS
Section 12.01. Discharge of Indenture. This Indenture shall, upon the receipt of a Company Order by the Trustee, cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for) with respect to any series of Securities specified in such Company Order, and the Trustee, at the expense of the Companies, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
| (a) | either: |
| (i) | all Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Companies and thereafter repaid to the Companies or discharged from such trust, as provided in Section 12.04) have been delivered to the Trustee for cancellation; or |
| (ii) | all such Securities of such series not theretofore delivered to the Trustee for cancellation: |
| (A) | have become due and payable; or |
| (B) | will become due and payable at their stated maturity within one year; or |
| (C) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Companies; |
and the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount of money sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal, premium, if any, interest, if any, and Additional Amounts known, at the time of such deposit, to be payable (if any) with respect to such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the stated maturity or date of redemption, as the case may be;
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| (b) | the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Companies with respect to the Outstanding Securities of such series; and |
| (c) | the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the following rights of the Holders and obligations of the Trustee, the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall survive such satisfaction and discharge:
| (1) | All obligations under Section 7.06; |
| (2) | If money or Government Obligations shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section or if money or Government Obligations shall have been deposited with or received by the Trustee pursuant to Section 13.02, all obligations under Sections 2.05, 2.07, 4.02, 4.03, 6.03, 12.02 and 12.04; |
| (3) | Any rights of Holders of the Securities of such series to require the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor to repurchase or repay, and the obligations of the Companies or, if applicable, the Guarantor to repurchase or repay, such Securities at the option of the Holders; and |
| (4) | Any rights of Holders of the Securities of such series to convert or exchange, and the obligations of the Companies to convert or exchange, such Securities into Shares, securities or other property. |
After any such deposit, the Trustee for such series shall acknowledge in writing the discharge of the Companies’ and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor’s obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those surviving obligations specified above.
Section 12.02. Deposited Moneys and Government Obligations to Be Held in Trust by Trustee. Subject to Section 12.04, all moneys and Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to this Indenture shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Companies acting as their own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys or Government Obligations have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any.
The Companies shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 12.02 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, as the case may be, from time to time upon request of the Companies or the Guarantor, as the case may be, any money or Government Obligations held by it as provided in Section 12.01(a)(ii) which is in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations was deposited.
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Section 12.03. Paying Agent to Repay Moneys and Government Obligations Held. In connection with the satisfaction and discharge of this Indenture with respect to a series of Securities, all moneys or Government Obligations then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Companies, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys or Government Obligations.
Section 12.04. Return of Unclaimed Moneys and Government Obligations. Any moneys or Government Obligations deposited with or paid to the Trustee or any paying agent for the payment of the principal of and premium, if any, interest, if any, and, to the extent provided in Section 12.01(a)(ii), Additional Amounts, if any, on any Security and not applied but remaining unclaimed for three years after the date upon which such principal, premium, if any, interest, if any, and Additional Amounts, if any, shall have become due and payable, shall be repaid to the Companies or the Guarantor, as applicable, by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor for any payment as unsecured general creditors unless an abandoned property law designates another Person and all liability of the Trustee or any paying agent with respect to such moneys or Government Obligations shall thereupon cease.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Applicability of Article; Companies’ Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 2.01 provision is made for the inapplicability of either or both of (a) defeasance of the Securities of a series under Section 13.02 or (b) covenant defeasance of the Securities of a series under Section 13.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article Thirteen, shall be applicable to the Securities of such series, and the Companies may at their option by Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the Outstanding Securities of such series upon compliance with the applicable conditions set forth below in this Article Thirteen.
Section 13.02. Defeasance and Discharge. Upon the Companies’ exercise of the option provided in Section 13.01 to defease the Outstanding Securities of a particular series, the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be discharged from their obligations with respect to the Outstanding Securities of such series on the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “defeasance”). Defeasance shall mean that the Companies shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and, the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be deemed to have satisfied all other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Companies, shall execute proper instruments acknowledging the same); provided, however, that the following rights, obligations, powers, trusts, duties and immunities shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund provided for in Section 13.04, payments in respect of the principal of and premium, if any, interest, if any, and Additional Amounts known, at the time such defeasance is effected, to be payable, if any, on such Securities when such payments are due, (b) the Companies’ obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02, 5.01, 7.06 and 12.04, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder; (d) any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 2.01 with respect to the Securities of such series) to convert or exchange, and the obligations of the Companies to convert or exchange, such Securities into Shares or other securities or property and (e) this Article Thirteen. Subject to compliance with this Article Thirteen, the Companies may exercise its option with respect to defeasance under this Section 13.02 notwithstanding the prior exercise of its option with respect to covenant defeasance under Section 13.03 in regard to the Securities of such series.
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Section 13.03. Covenant Defeasance. Upon the Companies’ exercise of the option provided in Section 13.01 to obtain a covenant defeasance with respect to the Outstanding Securities of a particular series, the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall be released from their obligations under this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04) with respect to the Outstanding Securities of such series on and after the date the applicable conditions set forth in Section 13.04 are satisfied (hereinafter, “covenant defeasance”). Covenant defeasance shall mean that, with respect to the Outstanding Securities of such series, the Companies and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in this Indenture (except any obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 4.04, 5.01, 6.02, 7.06, 7.10 and 12.04), whether directly or indirectly by reason of any reference elsewhere herein in any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, and such omission to comply shall not constitute an Event of Default under Section 6.01(d) with respect to Outstanding Securities of such series, and the remainder of this Indenture and of the Securities of such series shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance. The following shall be conditions to defeasance under Section 13.02 and covenant defeasance under Section 13.03 with respect to the Outstanding Securities of a particular series:
| (a) | The Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (i) money in an amount, or (ii) Government Obligations which through the schedule payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (i) below, on the relevant redemption date, as the case may be, money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (A) the principal of (and premium, if any, on), each installment of principal of and premium, if any, interest, if any, and all Additional Amounts known to be payable at the time of such defeasance or covenant defeasance, as the case may be, on the Outstanding Securities of such series on the stated maturity of or earlier redemption date, as the case may be, with respect to such principal or installment of principal or interest and (B) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with terms of this Indenture and of such Securities. |
| (b) | 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 on the date of such deposit or, insofar as subsections 6.01(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). |
| (c) | 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 Companies are parties or by which they are bound. |
| (d) | Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any national securities exchange registered under the Exchange Act, as amended, to be delisted. |
| (e) | In the case of an election with respect to Section 13.02, the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor has received from, or there has been published by, the Internal Revenue Service a private letter ruling pertaining to this transaction or a |
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| comparable form of transaction, or (ii) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. |
| (f) | In the case of an election with respect to Section 13.03, the Companies or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. 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. |
| (g) | Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Companies in connection therewith pursuant to Section 3.01. |
| (h) | The Companies shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 13.02 or the covenant defeasance under Section 13.03 (as the case may be) have been complied with. |
| (i) | If the moneys or Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient to pay the principal of and premium, if any, and interest, if any, on and, to the extent provided in such clause (a), Additional Amounts with respect to, such Securities provided such Securities are redeemed on a particular redemption date, the Companies shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture. |
Section 13.05. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section 12.04, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee — collectively for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Companies acting as their own paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
The Companies shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Companies from time to time upon request of the Companies, any money or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited for the purpose for which such money or Government Obligations were deposited.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations. No recourse under or upon any obligations covenant or agreement contained in this Indenture, or in any covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future incorporator, stockholder, officer or director, as such, of the Companies, the Guarantor or any successor Person to either of them, either directly or through the Companies, the Guarantor or any successor Person, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
ARTICLE FIFTEEN
GUARANTEE
Section 15.01. Guarantee. The provisions of this Article Fifteen shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as being entitled to the benefits of the Guarantee. For purposes of this Article Fifteen, the term “Securities” means, the Securities to which the provisions of this Article Fifteen shall be applicable and the term “Holder” means the person in whose name such a Security is registered on the registration books kept for that purpose in accordance with the terms hereof. The Guarantor hereby fully, unconditionally and irrevocably guarantees to and for the benefit of (a) each Holder the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Companies under this Indenture or otherwise with respect to the Securities registered in such Holder’s name, and (b) the Trustee and its successors and assigns the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Companies under this Indenture to the Trustee (each, a “Guaranteed Obligation” and, collectively, “Guaranteed Obligations”), in the case of both clause (a) and clause (b), at their stated due dates or when otherwise due in accordance with the terms thereof. The Guarantor agrees that any interest on Guaranteed Obligations which accrues after the commencement of any such proceeding (or which would have accrued had such proceeding not been commenced) shall constitute Guaranteed Obligations.
The Guarantor hereby agrees that the guarantee set forth in this Section 15.01 (the “Guarantee”) is a guarantee of the due and punctual payment (and not merely of collection) of Guaranteed Obligations, and shall be full, absolute and unconditional, irrespective of, and shall not be affected by, any invalidity, irregularity or enforceability of this Indenture or any Security, any failure to enforce the provisions of this Indenture or any Security, any waiver, modification or consent granted to the Companies with respect thereto, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor waives, to the fullest extent permitted by law, all notices of acceptance of the Guarantee or of the creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture, and no such creation, renewal, extension, modification, acceleration, compromise or release of any Security or any obligation under this Indenture shall impair or diminish the Guarantor’s obligations under the Guarantee.
The Guarantor waives, to the fullest extent permitted by law, any requirement that a Holder or the Trustee, in the event of a default in the paying of any Guaranteed Obligation by the Companies, first make demand upon or seek to enforce remedies against the Companies or first realize upon the collateral, if any, available to such Holder or the Trustee before demanding payment under or seeking to enforce the Guarantee.
The Guarantor hereby waives, to the fullest extent permitted by law, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by applicable law to a guarantor and waives any right of set-off which the Guarantor may have against any Holder or the Trustee with respect to any Guaranteed Obligations which are or may become payable by the Guarantor to such Holder or the Trustee, as the case may be.
The Guarantor hereby waives, to the fullest extent permitted by law, diligence, notice of acceptance, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Companies, any right to require a proceeding first against the Companies or any other person, protest, notice of dishonor or non-payment to or on the Guarantor or the Companies, notice of any other default, breach or nonperformance of any agreement, covenant or obligation of the Companies under this Indenture or any Security, and all notices and demands whatsoever with respect to this Indenture, Securities or any indebtedness evidenced thereby.
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The Guarantee is a continuing guarantee and nothing save payment in full of each Guaranteed Obligation shall discharge the Guarantor of its obligations under the Guarantee in respect of such Guaranteed Obligation.
The Guarantee shall continue to be effective or to be reinstated, as the case may be, if at any time any Guaranteed Obligation, in whole or in part, is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy, liquidation or reorganization of a Company or otherwise.
The obligations of the Guarantor under the Guarantee shall not be altered, limited or affected by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Companies or by any defense which the Companies may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding. No delay or omission by any Holder or the Trustee to exercise any right under this Guarantee shall impair any such right, nor shall it be construed to be a waiver thereof.
Section 15.02. Subrogation. The Guarantor shall be subrogated to all rights of each Holder and the Trustee against the Companies in respect of any amounts paid to such Holder or the Trustee, as the case may be, by the Guarantor pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation with respect to Guaranteed Obligations relating to Securities of the same series and like tenor until all such Guaranteed Obligations that are due and payable have been paid in full.
Section 15.03. Notation of Guarantee. To further evidence the Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that a notation of such Guarantee in the form set forth in Annex A hereto shall be endorsed on each Security to which the Guarantee applies and shall be executed on behalf of the Guarantor pursuant to Section 2.03.
The Guarantor hereby agrees that its Guarantee set forth in this Article Fifteen shall remain in full force and effect notwithstanding any failure to endorse on each Security to which it applies a notation of such Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due and valid delivery of any Guarantee designated with respect to the Securities pursuant to Section 2.01 on behalf of the Guarantor.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 16.01. Benefits of Indenture Restricted to Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 16.02. Provisions Binding on Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Companies or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
Section 16.03. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Companies or the Guarantor may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another address is filed by the Companies with the Trustee), as follows: if to Accenture Capital Inc., 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles; if to Accenture Global Capital DAC, c/o Accenture LLP, 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles; and if to the Guarantor,
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Accenture plc, c/o Accenture LLP, 500 West Madison Street, Chicago, IL 60661, Attention: Brian J. Kowles. Any notice, direction, request or demand by the Companies or the Guarantor, or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at its Corporate Trust Department, 311 South Wacker Drive, Suite 6200B, Floor 62, Mailbox #44, Chicago, Illinois 60606, Email: jose.salasjr@bny.com, Phone: 312-827-8621, or at any other address previously furnished in writing to the Companies by the Trustee.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer and/or the Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer and/or the Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Guarantor, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Guarantor understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer and the Guarantor shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer, the Guarantor and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Guarantor, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer and the Guarantor agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 16.04. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Companies or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Companies or the Guarantor, as the case may be, shall furnish to the Trustee an Officer’s Certificate or Officer’s Certificate of the Guarantor, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (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 such person, 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 or not, in the opinion of such person, such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of a Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Companies or the Guarantor, as the case may be, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Companies or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
Section 16.05. Legal Holidays. Unless otherwise provided in the terms of a Security, in any case where the date of maturity of any interest, premium on or principal of the Securities or the date fixed for redemption, repurchase or repayment of any Securities shall not be a Business Day in a city where payment thereof is to be made, then payment of any interest, premium on, or principal of such Securities need not be made on such date in such city but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, repurchase or repayment, and no interest shall accrue for the period after such date.
Section 16.06. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
Section 16.07. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
Section 16.08. New York Contract. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State.
Section 16.09. Consent to Service. The Guarantor has designated and appointed Corporation Service Company, 80 State Street, Albany, New York 12207-2543, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture or the Securities of any series to which the provisions of Article Fifteen shall apply brought in any federal or state court sitting in the Borough of Manhattan in the City of New York. By the execution and delivery of this Indenture, the Guarantor irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Guarantor, shall be deemed in every respect effective service of process upon the Guarantor, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Guarantor may consent to the nonexclusive jurisdiction of its courts with respect to such Security. The Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any Securities to which the provisions of Article Fifteen shall apply shall be Outstanding.
Section 16.10. Separability. In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 16.11. Assignment. Each Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned subsidiary of such Company, provided that, in the event of any such assignment, such Company will remain liable for all such obligations. Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties hereto.
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Section 16.12. Waiver of Jury Trial; Submission to Jurisdiction. EACH OF THE COMPANIES, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE NOTES) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY. THE COMPANIES AND GUARANTOR HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE SOUTHERN DISTRICT IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
Section 16.13. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, pandemics or epidemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances.
Section 16.14. Judgment Currency. The Companies and the Guarantor severally agree, to the fullest extent that they may effectively do so under applicable law, that:
| (a) | if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of and premium, if any, and interest, if any, on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, the City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day in the Borough of Manhattan, the City of New York, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the Borough of Manhattan, the City of New York the Required Currency with the Judgment Currency on the Business Day in the Borough of Manhattan, the City of New York preceding the day on which a final unappealable judgment is entered; and |
| (b) | their obligations under this Indenture to make payments in the Required Currency: |
| (1) | shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a) above), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments; |
| (2) | shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable; and |
| (3) | shall not be affected by judgment being obtained for any other sum due under this Indenture. |
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Section 16.15. Tax Withholding. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (as used in this Section 16.15, “Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Companies agree (i) to provide to the Trustee sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested in writing and in the Companies’ possession (or, to the extent not in the Companies’ possession, can be obtained through commercially reasonable efforts of the Companies) so the Trustee can determine whether it has tax related obligations under Applicable Law, except to the extent that providing such information to the Trustee would result in a violation of any applicable law, rule or regulation (inclusive of directives, guidelines and interpretations promulgated by competent authorities) or would require the consent, authorization, approval or waiver of a Person who is not a party to this Indenture or an affiliate of a party to this Indenture and such consent, authorization, approval or waiver cannot be obtained through commercially reasonable efforts of the Companies, and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability. The terms of this Section shall survive the termination of this Indenture.
Section 16.16. Office of Foreign Assets Control Sanctions Representations.
| (a) | Each of the Companies represents that neither it nor, to such Company’s knowledge, any of its affiliates, subsidiaries, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively “Sanctions”); |
| (b) | Each of the Companies covenants that it will not, and, to such Company’s knowledge, its subsidiaries, directors or officers will not, directly or indirectly use any payments made pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person. |
49
IN WITNESS WHEREOF, each of the parties has caused this Indenture to be duly signed, all as of the day and year first above written.
| Accenture Capital Inc. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Accenture Global Capital DAC | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Accenture plc | ||
| By: |
| |
| Name: | ||
| Title: | ||
| The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
50
Annex A
NOTATION OF GUARANTEE
For value received, the undersigned Guarantor (which term includes any successor Person under the Indenture), subject to the provisions in the Indenture and the terms of the Securities of this series, has fully, unconditionally and irrevocably guaranteed to and for the benefit of each Holder and the Trustee the due and prompt payment in full of all amounts which may at any time be or become from time to time due and payable by the Companies under the Indenture or otherwise with respect to the Securities of this series registered in such Holder’s name, at their stated due dates or when otherwise due in accordance with the terms thereof. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantee under the Indenture are expressly set forth in Article Fifteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.
| Accenture plc | ||
| By: |
| |
| Name: | ||
| Title: | ||
51
Exhibit 5.1
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30 September 2024
| To: | Board of Directors |
Accenture plc
1 Grand Canal Square
Grand Canal Harbour
Dublin 2
| To: | Board of Directors |
Accenture Global Capital DAC
1 Grand Canal Square
Grand Canal Harbour
Dublin 2
| Re: | Accenture plc - Form S-3 Registration Statement dated 30 September 2024 |
Dear Sirs,
| 1. | Basis of Opinion |
| 1.1 | We are acting as Irish counsel to Accenture plc, a public company limited by shares, incorporated under the laws of Ireland (company registration number 471706) and having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2 (the “Company”), and Accenture Global Capital DAC, a designated activity company incorporated under the laws of Ireland (company registration number 669128) and having its registered office at 1 Grand Canal Square, Grand Canal Harbour, Dublin 2 (the “DAC” and together with the Company, the “Irish Entities”), in connection with the Form S-3 registration statement to be filed by the Company, the DAC and Accenture Capital Inc. (together the “Issuers”) with the United States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”) on or around 30 September 2024 (the “Registration Statement”). We refer, in particular, to: |
| (a) | the Class A ordinary shares with a nominal value of US$0.0000225 per share of the Company (the “Ordinary Shares”) and the undesignated shares with a nominal value of US$0.0000225 per share of the Company (together with the Ordinary Shares, the “Shares”); and |
| (b) | the debt securities of the Irish Entities (the “Debt Securities”) and the guarantees of Debt Securities (the “Guarantees”), that may be issued pursuant to the Registration Statement (the Shares, the Debt Securities and the Guarantees are collectively hereinafter referred to as, the “Securities”). |
| 1.2 | We understand that the Debt Securities and Guarantees may be issued under a form of indenture to be entered into between, among others, the respective Issuers on or after the date hereof (each an “Indenture” and together, the “Indentures”). |
| 1.3 | This Opinion is confined to and given in all respects on the basis of the laws of Ireland (meaning Ireland exclusive of Northern Ireland) in force as at the date of this Opinion as currently applied by the courts of Ireland. We have made no investigation of, and we express no opinion as to the laws of, any other jurisdiction or the effect thereof. |
| 1.4 | This Opinion is also strictly confined to: |
| (a) | the matters expressly stated herein at paragraph 2 below and is not to be read as extending by implication or otherwise to any other matter; |
| (b) | the documents listed in the schedule to this Opinion (the “Documents”); and |
| (c) | the searches listed at 1.6 below (the “Searches”). |
We express no opinion, and make no representation or warranty, as to any matter of fact or in respect of any documents which may exist in relation to the Securities, other than the Documents.
| 1.5 | For the purpose of giving this Opinion, we have examined and relied on copies of the Documents sent to us by e-mail in pdf or other electronic format. |
| 1.6 | For the purpose of giving this Opinion, we have caused to be made the following legal searches against each of the Irish Entities on 30 September 2024: |
| (a) | on the file of the Company maintained by the Registrar of Companies in the Irish Companies Registration Office for mortgages, debentures or similar charges or notices thereof and for the appointment of any receiver, examiner, process advisor or liquidator; |
| (b) | in the Judgments Office of the High Court for unsatisfied judgments, orders, decrees and the like for the twelve years immediately preceding the date of the search; |
| (c) | in the Central Office of the High Court for any proceedings filed in respect of each of the Irish Entities in the 12 years immediately preceding the date of the search; |
| (d) | in the Central Office of the High Court for any petitions filed in respect of each of the Irish Entities; and |
| (e) | on the register of persons disqualified or restricted from acting as directors of companies incorporated in Ireland which is maintained by the Registrar of Companies in the CRO against the names of the current directors and secretary of each of the Irish Entities as identified in the search results referred to in paragraph (a) above. |
| 1.7 | This Opinion is governed by and is to be construed in accordance with the laws of Ireland as interpreted by the courts of Ireland at the date hereof. |
| 2. | Opinion |
Subject to the assumptions and qualifications set out in this Opinion and to any matters not disclosed to us, we are of the opinion that:
| 2.1 | The Company is a public company limited by shares, is duly incorporated and validly existing under the laws of Ireland. |
| 2.2 | The DAC is a designated activity company, is duly incorporated and validly existing under the laws of Ireland. |
| 2.3 | When the Shares are issued and allotted pursuant to duly adopted resolutions of the board of directors of the Company (including resolutions duly adopted by the board approving powers of attorney appointing officers or senior executives of the Company as the lawful attorneys of the Company for the purposes of exercising the Company’s powers in respect of the issue and allotment of the Shares), the Shares shall be validly issued, fully paid up and non-assessable (which term means that no further sums are required to be paid by the holders thereof in connection with the issue of such Shares). |
| 2.4 | Each of the Irish Entities has the necessary corporate power and authority to execute, deliver and perform its obligations under the applicable Indenture in accordance with the terms thereof; |
| 2.5 | The entry into and the performance of the applicable Indenture by each of the Irish Entities will not, when entered into, contravene: |
| (a) | any law of Ireland applicable to the Company or the DAC respectively; or |
| (b) | the Memorandum and Articles of Association of the Company or the DAC respectively. |
| 2.6 | All necessary corporate action required on the part of each of the Irish Entities to authorise the execution and delivery of the applicable Indenture and the performance by each of the Irish Entities of its obligations under the applicable Indenture has been duly taken. |
| 3. | Assumptions |
For the purpose of giving this Opinion, we assume the following without any responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
Registration Statement and the Securities
| 3.1 | That, when filed with the SEC, the Registration Statement will not differ in any material respect from the final draft that we have examined and that before any Securities are offered, issued and sold, the Registration Statement and any amendments to the Registration Statement (including post-effective amendments) will have become effective under the Securities Act. |
| 3.2 | That when entered into, the Indenture will not differ in any material respect from the final draft that we have examined. |
| 3.3 | That any Shares issued under the Registration Statement will be in consideration of the receipt by the Company prior to the issuance of the Shares pursuant thereto of either cash or the release of a liability of the Company for a liquidated sum at least equal to the nominal value of such Shares and any premium required to be paid up on the Shares pursuant to their terms of issuance. |
| 3.4 | That the filing of the Registration Statement with the SEC has been authorised by all necessary actions under all applicable laws other than Irish law. |
| 3.5 | That, at the time of issue of the Shares, the authority of the Company and the directors of the Company to issue the Shares, as provided for in the articles of association of the Company (the “Articles of Association”) and the Companies Act 2014 of Ireland, as amended (the “Companies Act”), is in full force and effect. |
| 3.6 | That the Company will continue to renew its authority to allot and issue the Shares in accordance with the terms and conditions set out in the Articles of Association and the Companies Act and that, where such authority has not been renewed, the Company will not issue the Shares after such authority has expired. |
| 3.7 | That, at the time of any issuance of Shares (including where issuable upon the exercise of any Debt Securities exercisable or convertible into Shares, in whole or in part), there will be sufficient authorised but unissued share capital available for issuance by the board of directors of the Company under the Articles of Association and not otherwise reserved for issuance and that the board, or any appropriate committee appointed thereby, will have the valid authority to issue such Shares on a non-pre-emptive basis. |
| 3.8 | That the issue of the Shares upon the conversion, exchange and exercise of any securities issued under the Registration Statement will be conducted in accordance with the terms and the procedures described in the Articles of Association, the Companies Act and the terms of issue of such securities. |
| 3.9 | That any issue of Securities will be in compliance with the Companies Act, the Irish Takeover Panel Act, 1997, Takeover Rules 2022 (as amended), and all other applicable Irish company, takeover, securities, prospectus, market abuse and insider dealing laws and other rules and regulations. |
| 3.10 | That, as at the time of the issue of the Securities, such issue shall not be in contravention or breach of any agreement, undertaking, arrangement, deed or covenant affecting each of the Irish Entities or to which each of the Irish Entities is a party or otherwise bound or subject. |
| 3.11 | That any applicable Indenture will have been duly authorised, executed and delivered by the parties thereto (other than the Irish Entities), as applicable, and constitutes legally valid and binding obligations on the parties thereto (other than the Irish Entities), enforceable against each of them in accordance with its terms. |
| 3.12 | That any power of attorney granted by each of the Irish Entities in respect of the issue and allotment of the Securities shall have been duly granted, approved and executed in accordance with the Articles of Association, the Companies Act, the Powers of Attorney Act 1996 of Ireland and all other applicable laws, rules and regulations. |
| 3.13 | That the terms of the Securities will have been established so as not to, and that the execution and delivery by each of the Irish Entities of, and the performance of its obligations under, the Indenture, will not violate, conflict with or constitute a default under (a) the Articles of Association of each of the Irish Entities; (b) any agreement, instrument, undertaking, arrangement, deed or covenant affecting either of the Irish Entities or its properties or to which each of the Irish Entities is a party or otherwise bound or subject; (c) any law, rule or regulation to which each of the Irish Entities or its properties is subject; (d) any judicial or regulatory order or decree of any governmental authority; or (e) any consent, approval, license, authorisation or validation of, or filing, recording or registration with, any governmental authority. |
| 3.14 | That the board of directors of each of the Irish Entities will have taken all necessary corporate action, including the adoption of a resolution or resolutions of the board in the form and content as required by applicable law, to approve the issuance and terms of the Securities, the consideration to be received therefor, the applicable Indenture, if any, and the execution thereof, and related matters (the “Authorisation”). |
| 3.15 | To the extent that any offer of Securities is made in any member state of the European Union (“Member State”) or in the United Kingdom, such offer is addressed to fewer than 150 natural or legal persons in each Member State and the United Kingdom, other than to Qualified Investors (as defined in Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (the “Prospectus Regulation”) and, in the case of the United Kingdom, the retained EU law version of the Prospectus Regulation which applies in the United Kingdom), as amended. |
| 3.16 | That the Securities will have been duly authorised, established, certificated, executed, delivered, countersigned and registered, as applicable, in accordance with the provisions of the Articles of Association, applicable law, applicable Indenture, if any, and the Authorisation. |
Authenticity and bona fides
| 3.17 | The completeness and authenticity of all documents submitted to us as originals or copies of originals and (in the case of copies) conformity to the originals of copy documents and the genuineness of all signatories, stamps and seals thereon. |
| 3.18 | Where incomplete Documents have been submitted to us or signature pages only have been supplied to us for the purposes of issuing this Opinion, that the originals of such Documents correspond in all respects with the last draft of the complete Documents submitted to us. |
| 3.19 | That the Documents will be executed in a form and content having no material difference to the drafts provided to us, will be delivered by the parties thereto, and that the terms thereof will be observed and performed by the parties thereto. |
| 3.20 | That the copies produced to us of minutes of meetings and/or of resolutions correctly record the proceedings at such meetings and/or the subject matter which they purport to record and that any meetings referred to in such copies were duly convened, duly quorate and held, that those present at any such meetings were entitled to attend and vote at the meeting and acted bona fide throughout and that no further resolutions have been passed or other action taken which would or might alter the effectiveness thereof. |
| 3.21 | That each of the Documents is up to date and current and has not been amended, varied or terminated in any respect and no resolution contained in any of the Documents has been amended, varied, revoked or superseded in any respect. |
| 3.22 | That there is, at the relevant time of the allotment and issuance of the Securities, no matter affecting the authority of the directors to issue and allot the Securities, not disclosed by the Memorandum and Articles of Association of each of the Irish Entities or the resolutions produced to us, which would have any adverse implications in relation to the opinions expressed in this Opinion. |
| 3.23 | That the Memorandum and Articles of Association of the Company amended on 7 February 2018 are the current Memorandum and Articles of Association of the Company, and the Memorandum and Articles of Association of the DAC amended on 27 March 2020 are the current Memorandum and Articles of Association of the DAC are up to date and have not been amended or superseded and that there are no other terms governing the Shares other than those set out in the Memorandum and Articles of Association of the Company. |
Accuracy of searches and warranties
| 3.24 | The accuracy and completeness of the information disclosed in the Searches and that such information has not since the time of such search or enquiry been altered. It should be noted that; |
| (a) | the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted for; and |
| (b) | searches at the Irish Companies Registration Office, do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or a petition presented or any other action taken for the winding-up of or the appointment of a receiver or an examiner to each of the Irish Entities . |
| 3.25 | That there has been no alteration in the status or condition of each of the Irish Entities as disclosed by the Searches. |
| 3.26 | The truth, completeness and accuracy of all representations and statements as to factual matters contained in the Documents. |
Solvency and Insolvency
| 3.27 | that: |
| (a) | each of the Irish Entities will not be unable to pay its debts within the meaning of Sections 509(3) and 570 of the Companies Act or any analogous provision under any applicable laws immediately after the filing of the Registration Statement with the SEC; |
| (b) | each of the Irish Entities will not as a consequence of doing any act or thing which the Registration Statement contemplates, permits or requires any relevant party to do, be unable to pay its debts within the meaning of such Sections or any analogous provisions under any applicable laws; |
| (c) | no liquidator, receiver or examiner or other similar or analogous officer has been appointed in relation to each of the Irish Entities or any of its assets or undertaking; and |
| (d) | no petition for the making of a winding-up order or the appointment of any examiner or any similar officer or any analogous procedure has been presented in relation to each of the Irish Entities; |
| 3.28 | that no proceedings have been instituted or injunction granted against each of the Irish Entities to restrain it from issuing the Securities and the issue of any Securities would not be contrary to any state, governmental, court, state or quasi-governmental agency, licensing authority, local or municipal governmental body or regulatory authority’s order, direction, guideline, recommendation, decision, licence or requirement; and |
Commercial Benefit
| 3.29 | that the Documents have been entered into for bona fide commercial purposes, on arm’s length terms and for the benefit of each party thereto and are in those parties’ respective commercial interest and for their respective corporate benefit. |
| 4. | Disclosure |
This Opinion is addressed to you in connection with the registration of the Securities with the SEC. We hereby consent to the inclusion of this Opinion as an exhibit to the Registration Statement to be filed with the SEC and any amendments thereto. We also hereby consent to the reference to our firm under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in a category of person whose consent is required under Section 7 of the Securities Act.
| 5. | No Refresher |
This Opinion speaks only as of its date. We are not under any obligation to update this Opinion from time to time or to notify you of any change of law, fact or circumstances referred to or relied upon in the giving of this Opinion.
| Yours faithfully, |
| /s/ ARTHUR COX LLP |
| ARTHUR COX LLP |
SCHEDULE
Documents
| 1. | A copy of the form of the Registration Statement to be filed with the SEC; |
| 2. | A copy of the resolutions of the board of directors of the Company approving, inter alia, the filing of the Registration Statement dated 19 September 2024 (the “Resolutions”); |
| 3. | A copy of the Memorandum and Articles of Association of the Company as amended by special resolution of the shareholders of the Company on 7 February 2018; |
| 4. | A copy of the certificate of incorporation of the Company dated 10 June 2009; |
| 5. | A copy of the certificate of incorporation of the DAC dated 26 March 2020; |
| 6. | A copy of the certificate of incorporation on change of name of the DAC dated 17 April 2020; |
| 7. | A copy of the resolutions of the board of directors of the DAC approving, inter alia, the filing of the Registration Statement dated 19 September 2024 (the “Resolutions”); |
| 8. | A copy of the Memorandum and Articles of Association of the DAC as amended by special resolution of the shareholders of the Company on 27 March 2020; |
| 9. | A copy of the certificate from an authorised officer of the Company dated 31 January 2024 in relation to the 2023 annual general meeting and the share capital of the Company; |
| 10. | A copy of the letter of status from the Companies Registration Office dated 25 September 2024; and |
| 11. | A copy of the form of Indenture to be entered on or after the date hereof between, among others, the relevant Issuers. |
Exhibit 5.2
September 30, 2024
Accenture plc
Accenture Capital Inc.
Accenture Global DAC
c/o Accenture plc
500 W. Madison Street
Chicago, Illinois 60661
Re: Accenture plc, Accenture Capital Inc. and Accenture Global DAC Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Accenture plc, a public limited company incorporated in Ireland (the “Parent”), Accenture Capital Inc., a Delaware corporation, and Accenture Global Capital DAC, an Irish designated activity company (together with Accenture Capital, Inc., individually, a “Company” and, collectively, the “Companies”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act, together or separately and in one or more series (if applicable) of:
(i) senior unsubordinated unsecured debt securities (the “Debt Securities”), which may be issued by either Company or co-issued by both Companies;
(ii) guarantees of the Debt Securities by the Parent (the “Guarantees”);
(iii) Class A ordinary shares of the Parent, with a nominal value of $0.0000225 per share (the “Ordinary Shares”);
(iv) preference shares of the Parent (the “Preference Shares”);
(v) depositary shares of the Parent each representing a fraction of a share of a particular class or series of Preference Shares (the “Depositary Shares”);
(vi) contracts of the Parent for the purchase or sale of Ordinary Shares (the “Share Purchase Contracts”);
Gibson, Dunn & Crutcher LLP
200 Park Avenue | New York, NY 10166-0193 | T: 212.351.4000 | F: 212.351.4035 | gibsondunn.com
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| Accenture plc Accenture Capital Inc. Accenture Global DAC September 30, 2024 |
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(vii) warrants by the Parent for the purchase of Debt Securities, Ordinary Shares or Preference Shares (the “Warrants”);
(viii) share purchase units of the Parent comprised of Share Purchase Contracts and, as security for the holder’s obligations to purchase Ordinary Shares, Preference Shares or debt obligations of third parties, including the Companies and U.S. Treasury securities (the “Share Purchase Units”); and
(ix) units of the Parent comprised of any combination of Debt Securities, Guarantees, Ordinary Shares, Preference Shares, Share Purchase Contracts, Share Purchase Units, Warrants, or Depositary Shares (the “Units”).
The Debt Securities, Guarantees, Ordinary Shares, Preference Shares, Depositary Shares, Share Purchase Contracts, Warrants, Share Purchase Units, and Units are collectively referred to herein as the “Securities.” The Debt Securities are to be issued under an indenture to be entered into among the applicable Company, the Parent, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as indenture trustee (collectively, the “Base Indentures”).
In arriving at the opinions expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of forms of the Base Indentures, forms of the Debt Securities and Guarantees, specimen Ordinary Share certificates and such other documents, corporate records, certificates of officers of the Parent, the Companies and of public officials and other instruments as we have deemed necessary or advisable to enable us to render these opinions. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. As to any facts material to these opinions, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations of officers and other representatives of the Parent, the Companies and others.
We are not admitted or qualified to practice law in Ireland. Therefore, we have relied upon the opinion of Arthur Cox LLP, filed as exhibit 5.1 to the Registration Statement, with respect to matters governed by the laws of Ireland.
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We have assumed without independent investigation that:
(i) at the time any Securities are sold pursuant to the Registration Statement (the “Relevant Time”), the Registration Statement and any supplements and amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws;
(ii) at the Relevant Time, a prospectus supplement will have been prepared and filed with the Commission describing the Securities offered thereby and all related documentation and will comply with all applicable laws;
(iii) all Securities will be issued and sold in the manner stated in the Registration Statement and the applicable prospectus supplement;
(iv) at the Relevant Time, all corporate or other action required to be taken by the Parent or the applicable Company to duly authorize each proposed issuance of Securities and any related documentation (including (i) the due reservation of any Ordinary Shares or Preference Shares for issuance upon exercise, conversion or exchange of any Securities for Ordinary Shares or Preference Shares (a “Convertible Security”), and (ii) the execution (in the case of certificated Securities), delivery and performance of the Securities and any related documentation referred to in paragraphs 1 through 8 below) shall have been duly completed and shall remain in full force and effect;
(v) upon issuance of any Ordinary Shares or Preference Shares, including upon exercise, conversion or exchange of any Convertible Security, the total number of Ordinary Shares or Preference Shares issued and outstanding will not exceed the total number of Ordinary Shares or Preference Shares, as applicable, that the Parent is then authorized to issue under its Amended and Restated Memorandum and Articles of Association and other relevant documents;
(vi) in the case of Debt Securities and Guarantees, at the Relevant Time, the relevant Base Indenture shall have been duly executed and delivered by the Parent, the applicable Company and all other parties thereto and duly qualified under the TIA; and
(vii) at the Relevant Time, a definitive purchase, underwriting or similar agreement and any other necessary agreement with respect to any Securities offered or issued will have been duly authorized by all necessary corporate or other action of the Parent and/or the applicable Company and duly executed and delivered by the Parent, the applicable Company, and the other parties thereto, as applicable.
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Based on the foregoing and in reliance thereon, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:
| 1. | With respect to any Debt Securities and related Guarantees, when: |
| a. | the terms and conditions of such Debt Securities and Guarantees have been duly established by supplemental indenture or officer’s certificate in accordance with the terms and conditions of the relevant Base Indenture, |
| b. | any such supplemental indenture or officer’s certificate has been duly executed and delivered by the Parent, the applicable Company and the relevant trustee (together with the relevant Base Indenture, the “Indenture”), and |
| c. | such Debt Securities have been executed (in the case of certificated Debt Securities), delivered and authenticated in accordance with the terms of the applicable Indenture and issued and sold for the consideration set forth in the applicable definitive purchase, underwriting or similar agreement, |
such Debt Securities will be legal, valid and binding obligations of the applicable Company, enforceable against such Company in accordance with their respective terms, and the Guarantees of such Debt Securities will be legal, valid and binding obligations of the Parent, enforceable against the Parent in accordance with their respective terms.
| 2. | With respect to Depositary Shares, when: |
| a. | a deposit agreement relating to such Depositary Shares (“Deposit Agreement”) has been duly executed and delivered by the Parent and the depositary appointed by the Parent, |
| b. | the terms of the Depositary Shares have been established in accordance with the Deposit Agreement, and |
| c. | the depositary receipts representing the Depositary Shares have been duly executed and countersigned (in the case of certificated Depositary Shares), registered and delivered in accordance with the related Deposit Agreement and the applicable definitive purchase, underwriting or similar agreement for the consideration provided therein, |
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the depositary receipts evidencing the Depositary Shares will be legal, valid and binding obligations of the Parent, enforceable against the Parent in accordance with their terms.
| 3. | With respect to any Share Purchase Contracts, when: |
| a. | the related purchase contract agreement (“Purchase Contract Agreement”), if any, has been duly executed by the Parent and each other party thereto, |
| b. | the terms of the Share Purchase Contracts have been established in accordance with the Purchase Contract Agreement, if any, or the applicable definitive purchase, underwriting or similar agreement, |
| c. | the terms of any collateral or security arrangements relating to such Share Purchase Contracts have been established and the agreements thereto have been validly executed and delivered by each of the parties thereto and any collateral has been deposited with the collateral agent, if applicable, in accordance with such arrangements, and |
| d. | such Share Purchase Contracts have been executed (in the case of certificated Share Purchase Contracts) and delivered in accordance with the Purchase Contract Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, |
such Share Purchase Contracts will be legal, valid and binding obligations of the Parent, enforceable in accordance with their terms.
| 4. | With respect to any Warrants, when: |
| a. | the warrant agreement relating to such Warrants (the “Warrant Agreement”), if any, has been duly executed and delivered by the Parent and each other party thereto, |
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| b. | the terms of the Warrants have been established in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, and |
| c. | the Warrants have been duly executed (in the case of certificated Warrants) and delivered in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, |
such Warrants will be legal, valid and binding obligations of the Parent, enforceable against the Parent in accordance with their terms.
| 5. | With respect to any Share Purchase Units, when: |
| a. | the unit agreement relating to the Share Purchase Units (the “Share Purchase Unit Agreement”), if any, has been duly executed and delivered by the Parent and each other party thereto, |
| b. | the terms of the Share Purchase Units have been duly established in accordance with the Share Purchase Unit Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, and |
| c. | the Share Purchase Units have been duly executed (in the case of certificated Share Purchase Units) and delivered in accordance with the Share Purchase Unit Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, |
the Share Purchase Units will be legal, valid and binding obligations of the Parent, enforceable against the Parent in accordance with their terms.
| 6. | With respect to any Units, when: |
| a. | the unit agreement relating to the Units (the “Unit Agreement”), if any, has been duly executed and delivered by the Parent and each other party thereto, |
| b. | the terms of the Units have been duly established in accordance with the Unit Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, and |
|
|
||||
| Accenture plc Accenture Capital Inc. Accenture Global DAC September 30, 2024 |
Page 7 |
| c. | the Units have been duly executed (in the case of certificated Units) and delivered in accordance with the Unit Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration provided for therein, |
the Units will be legal, valid and binding obligations of the Parent, enforceable against the Parent in accordance with their terms.
The opinions expressed above are subject to the following exceptions, qualifications, limitations and assumptions:
A. We render no opinion herein as to matters involving the laws of any jurisdiction other than the State of New York and the United States of America and to the extent relevant for our opinions herein, the Delaware General Corporation Law. This opinion is limited to the effect of the current state of the laws of the State of New York and the United States of America and the Delaware General Corporation Law and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations thereof or such facts.
B. The opinions above with respect to the Indenture, the Debt Securities and the related Guarantees, the depositary receipts representing the Depositary Shares, the Deposit Agreement, the Share Purchase Contracts, any Purchase Contract Agreement, the Warrants, the Warrant Agreement, Share Purchase Units, the Share Purchase Unit Agreement, the Units and the Unit Agreement (collectively, the “Documents”) are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors generally, including without limitation the effect of statutory or other laws regarding fraudulent transfers or preferential transfers; (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law.
C. We express no opinion regarding the effectiveness of (i) any waiver of stay, extension or usury laws or of unknown future rights; (ii) any waiver (whether or not stated as such) under the Indenture or any other Document of, or any consent thereunder relating to, unknown future rights or the rights of any party thereto existing, or duties owing to it, as a matter of law; (iii) any waiver (whether or not stated as such) contained in the Indenture or any other Document of rights of any party, or duties owing
|
|
||||
| Accenture plc Accenture Capital Inc. Accenture Global DAC September 30, 2024 |
Page 8 |
to it, that is broadly or vaguely stated or does not describe the right or duty purportedly waived with reasonable specificity; (iv) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to public policy or federal or state securities laws or due to the negligence or willful misconduct of the indemnified party; (v) any agreement to submit to the jurisdiction of any Federal court; (vi) any waiver of the right to jury trial or (vii) any provision to the effect that every right or remedy is cumulative and may be exercised in addition to any other right or remedy or that the election of some particular remedy does not preclude recourse to one or more others.
D. To the extent relevant to our opinions in paragraphs 3, 4, 5 and 6 and not covered by our opinions in paragraph 1, we have assumed that any securities, currencies or commodities underlying, comprising or issuable upon exchange, conversion or exercise of any Depositary Shares, Share Purchase Contracts, Warrants, Share Purchase Units, or Units are validly issued, fully paid and non-assessable (in the case of an equity security) or a legal, valid and binding obligation of the issuer thereof, enforceable against such issuer in accordance with its terms.
You have informed us that you intend to issue Securities from time to time on a delayed or continuous basis, and we understand that prior to issuing any Securities pursuant to the Registration Statement (i) you will advise us in writing of the terms thereof, and (ii) you will afford us an opportunity to (x) review the operative documents pursuant to which such Securities are to be issued or sold (including the applicable offering documents), and (y) file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate.
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Validity of Securities” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, |
| /s/ Gibson, Dunn & Crutcher LLP |
Exhibit 23.1
|
||||
| KPMG LLP Aon Center Suite 5500 200 E. Randolph Street Chicago, IL 60601-6436 |
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated October 12, 2023, except for Note 16, as to which the date is September 30, 2024 with respect to the consolidated financial statements of Accenture plc, and the effectiveness of internal control over financial reporting, incorporated herein by reference, and to the reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG LLP
Chicago, Illinois
September 30, 2024
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| 95-3571558 | ||
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
Accenture Capital Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 36-4486767 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| c/o Accenture plc 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Accenture plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-0627530 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
| Federal Reserve Bank |
San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 24th day of September, 2024.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ Ann Dolezal | |||
| Name: | Ann M. Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business June 30, 2024, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
5,196 | |||
| Interest-bearing balances |
320,481 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
519 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for credit losses on loans and leases |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including right-of-use assets) |
11,540 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
103,122 | |||
|
|
|
|||
| Total assets |
$ | 1,297,171 | ||
|
|
|
|||
1
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
1,073 | |||
| Noninterest-bearing |
1,073 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
259,868 | |||
| Total liabilities |
260,941 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
106,831 | |||
| Not available |
||||
| Retained earnings |
928,399 | |||
| Accumulated other comprehensive income |
0 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,036,230 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,036,230 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,297,171 | |||
|
|
|
I, Shana Quinn, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
Shana Quinn ) CFO
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Antonio I. Portuondo, President )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Senior Director )
2
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| 95-3571558 | ||
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
Accenture Global Capital DAC
(Exact name of obligor as specified in its charter)
| Ireland | 3443253HH | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| c/o Accenture plc 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Accenture plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-0627530 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
| Federal Reserve Bank |
San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 24th day of September, 2024.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ Ann Dolezal | |||
| Name: | Ann M. Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business June 30, 2024, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
5,196 | |||
| Interest-bearing balances |
320,481 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
519 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for credit losses on loans and leases |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including right-of-use assets) |
11,540 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
103,122 | |||
|
|
|
|||
| Total assets |
$ | 1,297,171 | ||
|
|
|
|||
1
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
1,073 | |||
| Noninterest-bearing |
1,073 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
259,868 | |||
| Total liabilities |
260,941 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
106,831 | |||
| Not available |
||||
| Retained earnings |
928,399 | |||
| Accumulated other comprehensive income |
0 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,036,230 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,036,230 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,297,171 | |||
|
|
|
I, Shana Quinn, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
Shana Quinn ) CFO
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Antonio I. Portuondo, President )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Senior Director )
2
Exhibit 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| 95-3571558 | ||
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
Accenture Capital Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 36-4486767 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| c/o Accenture plc 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Accenture Global Capital DAC
(Exact name of obligor as specified in its charter)
| Ireland | 3443253HH | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| c/o Accenture plc 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Accenture plc
(Exact name of registrant as specified in its charter)
| Ireland | 98-0627530 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| 1 Grand Canal Square Grand Canal Harbour Dublin 2, Ireland |
||
| (Address of principal executive offices) | (Zip code) | |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
| Federal Reserve Bank |
San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 24th day of September, 2024.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ Ann Dolezal | |||
| Name: | Ann M. Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business June 30, 2024, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
5,196 | |||
| Interest-bearing balances |
320,481 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
519 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for credit losses on loans and leases |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including right-of-use assets) |
11,540 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
103,122 | |||
|
|
|
|||
| Total assets |
$ | 1,297,171 | ||
|
|
|
|||
1
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
1,073 | |||
| Noninterest-bearing |
1,073 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
259,868 | |||
| Total liabilities |
260,941 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
106,831 | |||
| Not available |
||||
| Retained earnings |
928,399 | |||
| Accumulated other comprehensive income |
0 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,036,230 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,036,230 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,297,171 | |||
|
|
|
I, Shana Quinn, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
Shana Quinn ) CFO
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Antonio I. Portuondo, President )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Senior Director )
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