As filed with the Securities and Exchange Commission on February 19, 2025
Registration No. 333-
Expedia Group, Inc S-3ASR, filed Feb 19, 2025
Expedia Group, Inc. (EXPE)
S-3ASR
2025-02-19
View Original
Added on
October 16, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
EXPEDIA GROUP, INC.
(Exact name of Registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) | 20-2705720 (I.R.S. Employer Identification Number) | ||
SEE “TABLE OF ADDITIONAL REGISTRANT GUARANTORS” LISTED ON FOLLOWING PAGE
1111 Expedia Group Way W.
Seattle, WA 98119
(206) 481-7200
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Robert J. Dzielak
Chief Legal Officer and Secretary
1111 Expedia Group Way W.
Seattle, WA 98119
(206) 481-7200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Andrew J. Nussbaum
Mark A. Stagliano
Kathryn Gettles-Atwa
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
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 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, or 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.
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. ☐
Exact Name of Registrant Guarantor* | State or Other Jurisdiction of Incorporation or Formation | IRS Employer Identification Number | ||||
Cruise, LLC | Washington | 47-3225083 | ||||
EAN.com, LP | Delaware | 42-1612329 | ||||
Expedia Group Commerce, Inc. | Delaware | 35-2650158 | ||||
Expedia, Inc. | Washington | 91-1996083 | ||||
Higher Power Nutrition Common Holdings, LLC | Delaware | 20-5112832 | ||||
HomeAway Software, Inc. | Delaware | 27-3481581 | ||||
HomeAway.com, Inc. | Delaware | 20-2208029 | ||||
Hotels.com GP, LLC | Texas | 75-2942059 | ||||
Hotels.com, L.P. | Texas | 75-2942061 | ||||
Hotwire, Inc. | Delaware | 74-2938016 | ||||
HRN 99 Holdings, LLC | New York | 13-4179783 | ||||
LEMS I LLC | Delaware | 84-2926169 | ||||
Liberty Protein, Inc. | Delaware | 26-1632511 | ||||
O Holdings Inc. | Delaware | 61-1463518 | ||||
Orbitz, LLC | Delaware | 36-4349713 | ||||
Orbitz Worldwide, Inc. | Delaware | 20-5337455 | ||||
Travelscape, LLC | Nevada | 88-0392667 | ||||
VRBO Holdings, Inc. | Delaware | 81-1215345 | ||||
WWTE, Inc. | Nevada | 20-3014378 | ||||
* | All registrants have the following principal executive office: |
c/o Expedia Group, Inc.
1111 Expedia Group Way W.
Seattle, WA 98119
(206) 481-7200
IR@expedia.com
PROSPECTUS
Debt Securities
And Certain Subsidiaries
Guarantees of Debt Securities
This prospectus relates to the sale of one or more series of debt securities of Expedia Group, Inc. (“Expedia Group,” “we,” “us” or the “Company”) from time to time, on terms and at prices determined at the time the debt securities are offered for sale. Certain of our subsidiaries may fully and unconditionally guarantee any debt securities that we may issue. The terms and prices will be described in more detail in one or more supplements to this prospectus. Before investing, you should carefully read this prospectus and any related prospectus supplement or free writing prospectus. Prospectus supplements or free writing prospectuses may also add, update, or change information contained in this prospectus.
We may offer and sell these securities to or through agents, underwriters, dealers, or directly to purchasers. The names of any agents, underwriters, or dealers and the terms of the arrangements with such entities will be stated in the applicable prospectus supplement.
Investing in our securities involves risks. See “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2024, in our subsequent periodic filings with the Securities and Exchange Commission incorporated by reference in this prospectus and in the applicable prospectus supplement or any related free writing prospectuses that we have authorized for use in connection with a specific offering.
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.
Prospectus dated February 19, 2025.
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Using this process, we may offer and sell debt securities in one or more offerings from time to time. Certain of our subsidiaries may fully and unconditionally guarantee any debt securities that we may issue.
We have not authorized anyone to give any information or to make any representations concerning the debt securities we may offer except those which are in this prospectus, any prospectus supplement that is delivered with this prospectus, any related free writing prospectus that we authorize, or any documents incorporated by reference into this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information or representations that others may give or make to you. This prospectus is not an offer to sell or a solicitation of an offer to buy any securities other than the debt securities that are referred to in the prospectus supplement. This prospectus is not an offer to sell or a solicitation of an offer to buy debt securities in any circumstances in which the offer or solicitation is unlawful. You should not interpret the delivery of this prospectus, or any offer or sale of debt securities, as an indication that there has been no change in our affairs since the date of this prospectus.
This prospectus provides you with a general description of the debt securities we may offer. Each time we sell debt securities, we will provide a prospectus supplement or free writing prospectus that will contain specific information about the terms of that offering and the securities being offered at that time. The prospectus supplement or free writing prospectus also may add, update or change information contained in this prospectus, and any statement in this prospectus will be modified or superseded by any inconsistent statement in a prospectus supplement or free writing prospectus. You should read both this prospectus and any prospectus supplement or free writing prospectus together with the additional information described under the headings “Where You Can Find More Information” and “Information Incorporated by Reference.”
You should not assume that the information in this prospectus or any applicable prospectus supplement or any related free writing prospectus is accurate as of any date other than the date on the cover of the applicable document. Our business, financial condition, results of operations and prospects may have changed since that date.
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This prospectus, any prospectus supplement and the documents incorporated by reference, including the sections entitled “Prospectus Summary” and “Risk Factors,” may contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties. These forward-looking statements reflect the views of our management regarding current expectations and projections about future events and are based on currently available information. Actual results could differ materially from those contained in these forward-looking statements for a variety of reasons, including, but not limited to, those discussed in our Annual Report on Form 10-K for the year ended December 31, 2024, Part I, Item 1A, “Risk Factors” and Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, as well as those discussed elsewhere in this prospectus or any prospectus supplement. Other unknown or unpredictable factors also could have a material adverse effect on our business, financial condition and results of operations. Accordingly, readers should not place undue reliance on these forward-looking statements. The use of words such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “goal,” “intends,” “likely,” “may,” “plans,” “potential,” “predicts,” “projected,” “seeks,” “should” and “will,” or the negative of these terms or other similar expressions, among others, generally identify forward-looking statements; however, these words are not the exclusive means of identifying such statements. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements. These forward-looking statements are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. We are not under any obligation to, and do not intend to, publicly update or review any of these forward-looking statements, whether as a result of new information, future events or otherwise, even if experience or future events make it clear that any expected results expressed or implied by those forward-looking statements will not be realized. Please carefully review and consider the various disclosures made in this prospectus or any prospectus supplement and in our reports filed with the SEC that attempt to advise interested parties of the risks and factors that may affect our business, prospects and results of operations.
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This summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information that you should consider before investing in our debt securities. You should read the following summary together with the more detailed information regarding our company, the securities being registered hereby and our financial statements and notes thereto incorporated by reference in this prospectus.
Expedia Group, Inc.
Overview
Expedia Group, Inc. is an online travel company, and our mission is to power global travel for everyone, everywhere. We believe travel is a force for good. Travel is an essential human experience that strengthens connections, broadens horizons and bridges divides. We leverage our supply portfolio, platform and technology capabilities across an extensive portfolio of consumer brands, and provide solutions to our business partners, to empower travelers to efficiently research, plan, book and experience travel.
At the end of 2024, we had over 3.5 million lodging properties available, including over 2.5 million online bookable alternative accommodations listings through Vrbo, over 1 million hotels and alternative accommodations through our other brands, over 500 airlines, packages, rental cars, cruises, insurance, as well as activities and experiences.
Travel suppliers distribute and market products via our apps, desktop and mobile offerings, as well as through alternative distribution channels, our business partnerships and our call centers in order to reach our extensive global audience. In addition, our advertising and media businesses help other businesses, primarily travel providers, reach a large multi-platform audience of travelers around the globe.
For information regarding the results of Expedia Group’s historical operations, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Expedia Group’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 which is incorporated by reference into this prospectus.
Expedia Group, Inc. is a Delaware corporation. The mailing address of Expedia Group’s principal executive offices is 1111 Expedia Group Way W, Seattle, WA 98119, and Expedia Group’s email address is IR@expedia.com.
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The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede information included or previously incorporated by reference in this prospectus from the date we file the document containing such information. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Except to the extent furnished and not filed with the SEC pursuant to Item 2.02 or Item 7.01 of Form 8-K or as otherwise permitted by the SEC rules, we incorporate by reference the documents listed below and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 from the date of this prospectus until the completion of the offering in the relevant prospectus supplement to which this prospectus relates or this offering is terminated.
The documents we incorporate by reference into this prospectus are:
1. | Annual Report on Form 10-K for the year ended December 31, 2024; |
2. | The information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 from our definitive proxy statement on Schedule 14A, which was filed with the SEC on April 29, 2024; and |
3. | Current Report on Form 8-K (Item 8.01 only) filed with the SEC on February 6, 2025. |
This prospectus is part of a registration statement on Form S-3 filed with the SEC under the Securities Act of 1933, as amended, or the Securities Act. This prospectus does not contain all of the information set forth in the registration statement. You should read the registration statement for further information about Expedia Group and our securities.
Documents incorporated by reference are available from us, without charge, excluding all exhibits unless specifically incorporated by reference in the documents. You may obtain documents incorporated by reference in this prospectus by writing to us at the following address or by e-mailing us at the e-mail address listed below:
Investor Relations
Expedia Group, Inc. HQ, 1111 Expedia Group Way W.
Seattle, WA 98119
IR@expedia.com
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front page of those documents.
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We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet website that contains reports, proxy and information statements and other materials that are filed through the SEC’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) System or any successor thereto. This website can currently be accessed at www.sec.gov. You can find information we have filed with the SEC by reference to file number 001-37429. Our SEC filings are also available to the public over the internet from the SEC’s website at www.sec.gov, or our website at www.expediagroup.com. The contents of our website are not incorporated by reference in or otherwise a part of this prospectus.
5
Investing in our debt securities involves risks. You should carefully consider the risks described under “Risk Factors” beginning on page 8 of our annual report on Form 10-K for the period ended December 31, 2024, which is incorporated by reference herein, as well as the other information contained or incorporated by reference in this prospectus or any prospectus supplement hereto before making a decision to invest in our debt securities.
Our business, financial condition and results of operations could be materially adversely affected by any of these risks. The market or trading price of our debt securities could decline due to any of these risks. Additional risks not presently known to us or that we currently deem immaterial also may impair our business and operations or cause the price of our debt securities to decline. To the extent a particular offering implicates additional risks, we will include a discussion of those risks in the applicable prospectus supplement.
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Certain of our subsidiaries (which we refer to as the “subsidiary guarantors” in this prospectus) may fully and unconditionally guarantee our payment obligations under the debt securities offered by this prospectus. If a series of debt securities is so guaranteed, the subsidiary guarantors will execute the applicable indenture, a supplemental indenture or a notation of guarantee as further evidence of their guarantee. The applicable prospectus supplement will describe the terms of any guarantee. The obligations of each subsidiary guarantor under its guarantee may be limited to the maximum amount that will not result in such guarantee obligations constituting a fraudulent conveyance or fraudulent transfer under federal or state law, after giving effect to all other contingent and fixed liabilities of that subsidiary guarantor and any collections from or payments made by or on behalf of any other guarantor in respect of its obligations under its guarantee.
Financial information concerning our subsidiary guarantors and any non-guarantor subsidiaries will be included in our consolidated financial statements filed as part of our periodic reports filed pursuant to the Exchange Act to the extent required by the rules and regulations of the SEC.
The subsidiary guarantors of our debt securities may include the following direct and indirect subsidiaries of Expedia Group:
• | Cruise, LLC | • | HRN 99 Holdings, LLC | ||||||
• | EAN.com, LP | • | LEMS I LLC | ||||||
• | Expedia Group Commerce, Inc. | • | Liberty Protein, Inc. | ||||||
• | Expedia, Inc. | • | O Holdings Inc. | ||||||
• | Higher Power Nutrition Common Holdings, LLC | • | Orbitz, LLC | ||||||
• | HomeAway Software, Inc. | • | Orbitz Worldwide, Inc. | ||||||
• | HomeAway.com, Inc. | • | Travelscape, LLC | ||||||
• | Hotels.com GP, LLC | • | VRBO Holdings, Inc. | ||||||
• | Hotels.com, L.P. | • | WWTE, Inc. | ||||||
• | Hotwire, Inc. | ||||||||
Additional information concerning our subsidiaries and us is included in our periodic reports and other documents incorporated by reference in this prospectus. Please read “Where You Can Find More Information.”
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Except as may be described otherwise in a prospectus supplement, we expect to use the net proceeds from the sale of the debt securities under this prospectus for general corporate purposes. These purposes may include the repayment of indebtedness, financing of future acquisitions, capital expenditures, dividends, stock repurchases, working capital, and any other corporate purpose.
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The following description, together with the additional information that may be included in any applicable prospectus supplement and in any related free writing prospectuses, summarizes the material terms and provisions of the debt securities that the Company may offer under this prospectus. While the terms summarized below will apply generally to any debt securities that the Company may offer, the particular terms of any debt securities will be described in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below.
The Company may issue debentures, notes, bonds or other evidences of indebtedness, which we refer to as debt securities, from time to time in one or more distinct series. The debt securities may be senior debt securities or subordinated debt securities. If the Company issues debt securities pursuant to an indenture, the trustee under such indenture will be specified in the applicable prospectus supplement. The specific terms of debt securities being offered will be described in the applicable prospectus supplement. The statements and descriptions in this prospectus or in any prospectus supplement or any document incorporated by reference in this prospectus or applicable prospectus supplement regarding provisions of debt securities and any indentures are summaries of those provisions, do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the debt securities and the indentures (including any amendments or supplements the Company may enter into from time to time which are permitted under the debt securities or any indenture) to be entered into between the Company and the trustee named in the applicable prospectus supplement, which will be filed by amendment as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to a periodic report filed under the Exchange Act, including the definitions of specified terms used in the indenture, and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). You should read the summary below, the applicable prospectus supplement and the indenture and any related documents before making your investment decision.
The applicable prospectus supplement will set forth the terms of the debt securities or any series thereof, including, if applicable:
• | the title of the debt securities and whether the debt securities will be senior debt securities or subordinated debt securities; |
• | any limit upon the aggregate principal amount of the debt securities; |
• | the date or dates on which the principal amount of the debt securities will mature; |
• | if the debt securities bear interest, the rate or rates at which the debt securities bear interest, or the method for determining the interest rate, and the date or dates from which interest will accrue; |
• | if the debt securities bear interest, the dates on which interest will be payable, or the method for determining such dates, and the regular record dates for interest payments; |
• | the place or places where the payment of principal, any premium and interest will be made, where the debt securities may be surrendered for transfer or exchange and where notices or demands to or upon the Company may be served; |
• | any optional redemption provisions, which would allow the Company to redeem the debt securities in whole or in part; |
• | any sinking fund or other provisions that would obligate the Company to redeem, repay or purchase the debt securities; |
• | if the currency in which the debt securities will be issuable is United States dollars, the denominations in which any registered securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof; |
• | if other than the entire principal amount, the portion of the principal amount of debt securities which will be payable upon a declaration of acceleration of the maturity of the debt securities; |
• | the events of default and covenants relevant to the debt securities, including the inapplicability of any event of default or covenant set forth in the indenture relating to the debt securities, or the applicability of any other events of defaults or covenants in addition to the events of default or covenants set forth in the indenture relating to the debt securities; |
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• | the name and location of the corporate trust office of the applicable trustee under the indenture for such debt securities; |
• | if other than United States dollars, the currency in which the debt securities will be paid or denominated; |
• | if the debt securities are to be payable, at the election of the Company or the election of a holder of the debt securities, in a currency other than that in which the debt securities are denominated or stated to be payable, the terms and conditions upon which that election may be made, and the time and manner of determining the exchange rate between the currency in which the debt securities are denominated or stated to be payable and the currency in which the debt securities are to be so payable; |
• | the designation of the original currency determination agent, if any; |
• | if the debt securities are issuable as indexed securities, the manner in which the amount of payments of principal, any premium and interest will be determined; |
• | if the debt securities do not bear interest, the dates on which we will furnish to the applicable trustee the names and addresses of the holders of the debt securities; |
• | any provisions for the satisfaction and discharge or defeasance or covenant defeasance of the indenture under which the debt securities are issued; |
• | the date as of which any global security will be dated if other than the date of original issuance of the first debt security of a particular series to be issued; |
• | whether and under what circumstances the Company will pay additional amounts to non-United States holders in respect of any tax assessment or government charge; |
• | whether the debt securities will be issued in whole or in part in the form of a global security or securities and, in that case, any depositary and global exchange agent for the global security or securities, whether the global form shall be permanent or temporary; |
• | if debt securities are to be issuable initially in the form of a temporary global security, the circumstances under which the temporary global security can be exchanged for definitive debt securities and whether the definitive debt securities will be registered securities and provisions relating to the payment of interest in respect of any portion of a global security payable in respect of an interest payment date prior to the exchange date; |
• | the extent and manner to which payment on or in respect of debt securities will be subordinated to the prior payment of our other liabilities and obligations; |
• | whether payment of any amount due under the debt securities will be guaranteed by one or more guarantors, including one or more of our subsidiaries; |
• | whether the debt securities will be secured or unsecured; |
• | the forms of the debt securities; |
• | a discussion of any material United States federal income tax consequences of owning and disposing of the debt securities; and |
• | any other terms of the debt securities, which terms shall not be inconsistent with the requirements of the Trust Indenture Act. |
This prospectus is part of a registration statement that provides that the Company may issue debt securities from time to time in one or more series under one or more indentures, in each case with the same or various maturities, at par or at a discount. Unless otherwise indicated in the applicable prospectus supplement, the aggregate principal amount of debt securities that may be issued under the applicable indenture is unlimited. Unless otherwise indicated in the applicable prospectus supplement, the Company may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of the issuance.
We intend to disclose any restrictive covenants for any issuance or series of debt securities in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange.
10
We may sell debt securities to or through underwriters and also directly to other purchasers or through agents.
The distribution of the debt securities offered under this prospectus may occur from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices.
In connection with the sale of debt securities, underwriters may receive compensation from us or from purchasers of debt securities for whom they may act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell debt securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions, or commissions from the underwriters, and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers, and agents that participate in the distribution of debt securities offered under this prospectus may be “underwriters” as defined in the Securities Act. Any underwriters or agents will be identified and their compensation (including underwriting discount) will be described in the applicable prospectus supplement. The prospectus supplement will also describe the other terms of the offering, including any discounts or concessions allowed or re-allowed or paid to dealers and any securities exchanges on which the offered securities may be listed.
We may have agreements with the underwriters, dealers, and agents to indemnify them against certain liabilities, including certain liabilities under the Securities Act, or to contribute with respect to payments which the underwriters, dealers, or agents may be required to make as a result of those liabilities.
If the applicable prospectus supplement indicates, we may authorize dealers or agents to solicit offers by certain institutions to purchase debt securities from us pursuant to contracts that provide for payment and delivery on a future date. We must approve all institutions, but they may include, among others:
• | commercial and savings banks; |
• | insurance companies; |
• | pension funds; |
• | investment companies; and |
• | educational and charitable institutions. |
An institutional purchaser’s obligation under the contract will be subject to the condition that the purchase of the offered debt securities at the time of delivery is allowed by the laws that govern such purchaser. The dealers and the agents will not be responsible for the validity or performance of the contracts.
In general, the debt securities will be a new issue of securities and will have no established trading market. Any underwriters to whom debt securities are sold for public offering and sale may make a market in the debt securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The debt securities may or may not be listed on a national securities exchange.
In connection with any offering of the debt securities offered under this prospectus, underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the debt securities or any other securities the prices of which may be used to determine payments on the debt securities. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by underwriters of a greater number of debt securities than the underwriters are required to purchase in the offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the debt securities while the offering is in progress.
Underwriters may also impose a penalty bid in any offering of debt securities offered under this prospectus and any prospectus supplement through a syndicate of underwriters. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the other underwriters have repurchased debt securities sold by or for the account of such underwriter in stabilizing or short covering transactions.
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These activities by underwriters may stabilize, maintain or otherwise affect the market price of the debt securities offered under this prospectus and any prospectus supplement. As a result, the price of such debt securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by underwriters at any time. These transactions may be effected in the over-the-counter market or otherwise.
12
Unless otherwise indicated in the applicable prospectus supplement, legal matters in connection with the debt securities offered under this prospectus will be passed upon for us by Wachtell, Lipton, Rosen & Katz, New York, NY, and for any underwriters or agents by counsel named in the applicable prospectus supplement.
13
The consolidated financial statements of Expedia Group, Inc. included in Expedia Group, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2024, and the effectiveness of Expedia Group, Inc.’s internal control over financial reporting as of December 31, 2024, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The following table is a statement of estimated expenses to be incurred by the registrant in connection with the issuance and distribution of the debt securities being registered under this registration statement.
Amount to be paid | |||
SEC registration fee | $ * | ||
Rating agency fees | ** | ||
Legal fees and expenses | ** | ||
Accounting fees and expenses | ** | ||
Printing and engraving fees | ** | ||
Trustee’s Fees | ** | ||
Miscellaneous | ** | ||
** | |||
Total | ** | ||
* | Pursuant to Rule 456(b) and Rule 457(r), the Registrant is deferring payment of all of the SEC registration fee. |
** | Because an indeterminate amount of debt securities are covered by this registration statement, the expenses in connection with the issuance and distribution of debt securities are not currently determinable. A prospectus supplement will set forth the estimated expenses payable in connection with a particular offering of debt securities. |
Item 15. | Indemnification of Directors and Officers. |
Expedia Group, Inc.
Expedia Group’s amended and restated certificate of incorporation limits, to the maximum extent permitted by Delaware law, as it may hereafter be amended, the personal liability of directors for monetary damages for breach of their fiduciary duties as a director. Expedia Group’s amended and restated bylaws provide mandatory indemnification to the fullest extent authorized by the Delaware General Corporation Law, as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits Expedia Group to provide broader indemnification rights than said law permitted Expedia Group to provide prior to such amendment), with respect to actions, suits, or proceedings that a person is party to, or threatened to be made a party to or otherwise involved in, by reason of the fact that he/she or a person of whom he/she is the legal representative is or was a director or officer of Expedia Group, or by reason of the fact that he/she is or was a director or officer of Expedia Group and serving in certain other capacities at Expedia Group’s request; provided that any such person has met the applicable standard of conduct set forth in the Delaware General Corporation Law described below and that, with certain exceptions relating to suits to enforce rights to indemnification, such persons will be indemnified with respect to actions or suits initiated by such persons only if such action was first approved by the board of directors. Expedia Group’s amended and restated bylaws include within this right to indemnification the right to be paid by Expedia Group the expenses incurred in defending such a proceeding in advance of its final disposition; provided that, in certain circumstances, the person provides an undertaking to Expedia Group to repay such expenses, if it is ultimately determined that such party was not entitled to indemnity by Expedia Group. From time to time, Expedia Group’s officers and directors may be provided with indemnification agreements that are consistent with or greater than the foregoing provisions. Expedia Group has policies of directors’ and officers’ liability insurance which insure directors and officers against the costs of defense, settlement and/or payment of judgment under certain circumstances. Expedia Group believes that these agreements and arrangements are necessary to attract and retain qualified persons as directors and officers.
Expedia Group is incorporated in the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of certain other entities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
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reasonably incurred by him in connection with such action if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful; provided that with respect to proceedings by or in the right of a corporation to procure a judgment in its favor, (a) a corporation may only indemnify such a person against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action and (b) no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery, or such other court, shall deem proper. To the extent that a present or former director or “officer” (as defined in accordance with Section 141 (c)(1) of the Delaware General Corporation Law) of Expedia Group has been successful on the merits or otherwise in defense of any threatened, pending, or completed proceeding referred to in Section 145(a) or (b) of the Delaware General Corporation Law, or in defense of any claim, issue, or matter therein, he/she shall be indemnified against expenses (including attorneys’ fees) reasonably incurred by him or her in connection therewith.
Subsidiary Guarantor Registrants
Delaware Corporation Guarantors – Expedia Group Commerce, Inc.; HomeAway Software, Inc.; HomeAway.com, Inc.; Hotwire, Inc.; Liberty Protein, Inc.; O Holdings Inc.; Orbitz Worldwide, Inc.; VRBO Holdings, Inc. (collectively, the “Delaware Corporation Guarantors”)
For a description of Delaware law see above under the heading “Expedia Group, Inc.” The Delaware Corporation Guarantors’ respective charters provide generally for indemnification to the fullest extent not prohibited by Delaware law for directors of the corporation. The Delaware Corporation Guarantors’ bylaws provide generally for indemnification to the fullest extent not prohibited by Delaware law for directors and executive officers of the corporation; provided, that the corporation is not required to indemnify any director or executive officer in connection with any proceeding initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding is authorized by the corporation’s board of directors, (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under Delaware law or any other applicable law or (iv) such indemnification is required to be made under individual contracts with the corporation’s directors and executive officers.
Delaware Limited Liability Company Guarantors – Higher Power Nutrition Common Holdings, LLC; LEMS I LLC; Orbitz, LLC (collectively, the “Delaware LLC Guarantors”)
Section 18-108 of the Delaware Limited Liability Company Act permits a limited liability company, subject to such standards and restrictions, if any, as are set forth in such limited liability company’s limited liability company agreement, to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
Higher Power Nutrition Common Holdings, LLC’s limited liability company agreement generally requires indemnification of the member of Higher Power Nutrition Common Holdings, LLC to the full extent permitted by law.
LEMS I LLC’s limited liability company agreement generally requires indemnification of any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he, or a person for whom he is the legal representative, is or was a member or a manager, director or officer of LEMS I LLC or serving as at the request of LEMS I LLC as a manager, director, officer, member, employee or agent of another entity. The limited liability company agreement of LEMS I LLC further provides that LEMS I LLC shall only be required to indemnify or make advances to a person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the manager of LEMS I LLC.
The Orbitz, LLC limited liability company agreement generally requires indemnification of the member (and officers, directors and employees of such member), officers and other employees, agents and authorized representatives of Orbitz, LLC for any losses, claims, damages, liabilities or expenses asserted against or incurred by such person arising out of or in connection with the management or conduct of the business and affairs of
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Orbitz, LLC, any activities of such person involving the offering and selling of securities of Orbitz, LLC, the management or conduct of the business and affairs of such person insofar as it relates to Orbitz, LLC, or any other acts reasonably believed by such person to be within the scope of authority conferred on such person by the limited liability company agreement of Orbitz, LLC, the managing member of Orbitz, LLC or the officers of Orbitz, LLC; provided that such person shall not be entitled to indemnification if the losses, claims, damages, labilities or expense resulted from a judgment or other final adjudication adverse to such person that establishes that such acts were in bad faith or involved intentional misconduct or a knowing violation of law, or with respect to a person who was an officer or employee of Orbitz, LLC or an employee of its managing member seconded to, employed by or an officer of Orbitz, LLC or an officer or director of its managing member, were not reasonably believed by such person to be in or not opposed to the best interests of Orbitz, LLC.
The Delaware LLC Guarantors’ respective limited liability company agreement contains no other standards or restrictions or other provisions addressing indemnification.
Delaware Limited Partnership Guarantor – EAN.com, LP
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act permits a limited partnership, subject to such standards and restrictions, if any, as are set forth in such limited partnership’s limited partnership agreement, to indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever. EAN.com, LP’s agreement of limited partnership generally requires indemnification of partners, officers, employees and other representatives of EAN.com, LP and any manager, member of any executive committee of any partner, officer, director, employee, administrator, trustee, general or limited partner of any partner, shareholder, member, beneficiary or other holder of an equity interest of any partner or officer, director, employee or other authorized representative of any of the foregoing or any of their affiliates to the full extent permitted by Delaware law. This indemnification specifically includes losses, claims, damages and liabilities arising from any act or failure to act by such indemnitee which is attributable, in whole or in part, to the negligence of such indemnitee of any of its affiliates.
Texas Limited Partnership Guarantor – Hotels.com, L.P.
Hotels.com, L.P.’s agreement of limited partnership, as amended, requires it to indemnify, to the fullest extent permitted by law, each general partner, its affiliates and their respective officers, directors, partners, employees and agents against all losses, costs, liabilities, damages and expenses (including fees and disbursements of counsel) that any of them may incur as a general partner or in performing the obligations of the general partner, but excluding any such items incurred as a result of something for which the general partner is liable as a result of the failure to satisfy its standards of performance under the agreement of limited partnership, which generally require the general partner to perform its duties in good faith and in the best interests of the partnership and to devote such time and effort as is reasonably necessary to manage the limited partnership prudently. Hotels.com, L.P.’s agreement of limited partnership, as amended, further requires it to advance to each such person expenses associated with the defense of any related action.
Chapter 8, Section 8.051 of the Texas Business Organizations Code (the “TBOC”) requires a limited partnership to indemnify a general partner, former general partner or delegate against reasonable expenses actually incurred by such person in connection with a proceeding in which such person is a respondent because such person is or was a general partner or delegate if such person is wholly successful, on the merits or otherwise, in the defense of the proceeding. For purposes of Chapter 8 of the TBOC, a “delegate” of a limited partnership is a person who, while serving as general partner of the limited partnership, is or was serving at the request of the limited partnership as a representative of another organization.
Chapter 8, Section 8.101 of the TBOC provides that a limited partnership may indemnify a general partner, former general partner or delegate that was, is or is threatened to be made a respondent in a proceeding against judgments and expenses that are reasonable and actually incurred by such person in connection with such proceeding if it is determined that: (1) such person (a) acted in good faith, (b) reasonably believed, in the case of conduct in such person’s official capacity, that such person’s conduct was in the limited partnership’s best interest and, in any other case, that such person’s conduct was not opposed to the limited partnership’s best interests, and (c) in the case of a criminal proceeding, did not have a reasonable cause to believe such person’s conduct was unlawful and (2) with respect to expenses, the amount of such expenses is reasonable.
Under Chapter 8, Section 8.102 of the TBOC, indemnification of a person that is found liable to the limited partnership or found liable because such person improperly received a personal benefit (1) is limited to
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reasonable expenses actually incurred by such person in the proceeding, (2) does not include a judgment, a penalty, a fine or an excise or similar tax and (3) may not be made in relation to a proceeding in which such person has been found liable for (a) willful or intentional misconduct in the performance of such person’s duty to the limited partnership, (b) breach of such person’s duty of loyalty owed to the limited partnership, or (c) an act or omission not committed in good faith that constitutes a breach of any duty owed by such person to the limited partnership.
Chapter 8, Section 8.104 of the TBOC permits a limited partnership to pay or reimburse reasonable expenses incurred by a present general partner or delegate who was, is or is threatened to be made a respondent in a proceeding in advance of the final disposition of the proceeding without making the required determinations after the limited partnership receives (1) a written affirmation by the general partner of such person’s good faith belief that the person has met the standard of conduct necessary for indemnification and (2) a written undertaking by or on behalf of such person to repay the amount paid or reimbursed if the final determination is that the person has not met that standard or that indemnification is prohibited by Chapter 8 of the TBOC.
Chapter 8, Section 8.105 of the TBOC permits a limited partnership to indemnify and advance expenses to persons other than a general partner, including officers, employees or agents, as provided by the limited partnership’s agreement of limited partnership, action of the general partner or contract, among other means.
Chapter 8, Section 8.003 of the TBOC provides that a written partnership agreement of a limited partnership may restrict the circumstances under which the limited partnership must or may indemnify or may advance expenses to a person under such Chapter 8 of the TBOC.
Chapter 8, Section 8.151 of the TBOC permits a limited partnership to purchase or procure or establish and maintain insurance or other arrangements to indemnify and hold harmless its general partners, former general partners, delegates, officers, employees and agents against any liability (1) asserted against and incurred by such person in that capacity or (2) arising out of the person’s status in that capacity, without regard to whether the limited partnership otherwise would have the power to indemnify such person against that liability under Chapter 8 of the TBOC.
Texas Limited Liability Company Guarantor – Hotels.com GP, LLC
Hotels.com GP, LLC’s articles of organization, as amended, expressly empower the company (1) to indemnify persons to the fullest extent permitted by Section 101.402 of the TBOC and (2) to purchase insurance as the company deems necessary or appropriate. Hotels.com GP, LLC’s articles of organization further provide that such power is cumulative of powers and rights under law, contract or otherwise.
Section 101.402 of the TBOC provides that a limited liability company may (1) indemnify a person, (2) pay in advance or reimburse expenses incurred by a person, and (3) purchase or procure or establish and maintain insurance or another arrangement to indemnify or hold harmless a person. Section 101.402 of the TBOC further provides that, for such purposes, “person” includes, among others, a member, manager or officer of a limited liability company.
Hotels.com GP, LLC’s amended and restated limited liability company agreement requires it to indemnify, to the fullest extent permitted by the TBOC (as it existed upon the adoption of the amended and restated limited liability company agreement on December 11, 2018 or as thereafter amended to the extent such amendment permits the company to provide broader indemnification rights), each person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, or any appeal in such a proceeding or any inquiry or investigation that could lead to such a proceeding, by reason of the fact that such person is or was a member or manager of the company or, while a member or manager, is or was serving at the request of the company as a partner, director, officer, venturer, proprietor, trustee, employee, administrator, agent or similar functionary of another enterprise against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including attorneys’ fees) actually incurred by such person in connection with such proceeding. Hotels.com GP, LLC’s amended and restated limited liability company agreement further expressly provides that rights to indemnification under the amended and restated limited liability company agreement include the right to be paid or reimbursed by the company the reasonable expenses incurred by an indemnifiable person who was, is or is threatened to be made a named defendant or respondent in a proceeding in advance of the final disposition of the proceeding and without any determination
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as to the person’s ultimate entitlement to indemnification, but only upon delivery to the company of (1) a written affirmation by such person of such person’s good faith belief that such person has met the standard of conduct necessary for indemnification and (2) a written undertaking by or on behalf of such person to repay all amounts so advanced if it is ultimately determined that such person is not entitled to be indemnified.
Chapter 8 of the TBOC does not apply to a limited liability company unless the governing documents of the company adopt such provisions. Under Chapter 8 of the TBOC, the governing documents of a limited liability company are not required to adopt the provisions of Chapter 8 of the TBOC, however, they may contain other provisions relating to indemnification, advancement of expenses and insurance or other arrangements to indemnify or hold harmless a governing person. The indemnification, including advancement of expenses, set forth in Hotels.com GP, LLC’s amended and restated limited liability company agreement is expressly limited to indemnification permitted by the TBOC.
Hotels.com GP, LLC’s amended and restated limited liability company agreement permits the company to indemnify and advance expenses to (1) a manager, employee or agent of the company, to the same extent and subject to the same conditions under which it is obligated to indemnify and advance expenses to a member under the amended and restated limited liability company agreement, and (2) others who are or were serving at the request of the company as a partner, director, venturer, proprietor, trustee, employee, administrator, agent or similar functionary of another enterprise against liabilities asserted against such person and incurred by such person in such capacity or arising out of such person’s status as such a person, to the same extent that it may indemnify and advance expenses to a member under the Hotels.com GP, LLC’s amended and restated limited liability company agreement.
Hotels.com GP, LLC’s amended and restated limited liability company agreement permits the company to purchase and maintain insurance to protect any person who is or was serving as a member, officer, manager, employee or agent of the company or is or was serving at the request of the company as a manager, director, officer, member, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another enterprise against any expense, liability or loss, whether or not the company would have the power to indemnify such person against such expense, liability or loss under its amended and restated limited liability company agreement.
New York Limited Liability Company Guarantor – HRN 99 Holdings, LLC
Section 420 of the New York Limited Liability Company Law permits a limited liability company to indemnify and hold harmless, and advance expenses to, any member, manager, or other person, or any testator or intestate of such member, manager or other person, from and against any and all claims and demands whatsoever; provided, however, that no indemnification may be made to or on behalf of any member, manager or other person if a judgment or other final adjudication adverse to such person establishes (1) that his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated or (2) that he personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. HRN 99 Holdings, LLC’s amended and restated operating agreement requires indemnification to the full extent permitted by law for a manager or member for any loss, damage or claim incurred by such manager or member by reason of any act or omission performed or omitted to be performed by such manager or member in good faith on behalf of the company and in a manner reasonably believed to be within the scope of the authority conferred on such manager or member by the company’s amended and restated operating agreement, except that no manager or member will be indemnified in respect of any loss, damage or claim incurred by such manager or member by reason of willful misconduct with respect to such act or omission.
Nevada Corporation Guarantor – WWTE, Inc.
Section 78.7502(1) of the Nevada Revised Statutes (“NRS”) permits indemnification of any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a manager of a limited liability company, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person (a) is not liable pursuant to NRS 78.138, or (b) acted in good faith and in a manner which he or she reasonably believed
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to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. NRS 78.7502(2) permits indemnification of any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a manager of a limited liability company, against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person (a) is not liable pursuant to NRS 78.138, or (b) acted in good faith and in a manner in which he or she reasonably believed to be in or not opposed to the best interests of the corporation. NRS 78.7502(2) provides further that indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of any appeals taken therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all of the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. NRS 78.751(2) provides that unless otherwise restricted by the articles of incorporation, the bylaws, or an agreement made by the corporation, the corporation may pay the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation. The articles of incorporation, the bylaws or an agreement made by the corporation may require the corporation to pay such expenses upon receipt of such an undertaking. Indemnification pursuant to NRS 78.7502 and advancement of expenses authorized in or ordered by a court pursuant to NRS 78.751, does not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles of incorporation or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in the person’s official capacity or an action in another capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the advancement of expenses made pursuant to NRS 78.751(2), may not be made to or on behalf of any director or officer finally adjudged by a court of competent jurisdiction, after exhaustion of any appeals taken therefrom, to be liable for intentional misconduct, fraud or a knowing violation of law, and such misconduct, fraud or violation was material to the cause of action. Such indemnification and advancement of expenses also continues for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such a person. NRS 78.752 allows a corporation to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee and agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for any liability asserted against the person and liability and expenses incurred by the person in such capacity as a director, officer, employee or agent, or arising out of his or her status as such, whether or not the corporation has the authority to indemnify such person against such liability and expenses. WWTE, Inc.’s bylaws provide for indemnification by the corporation to the fullest extent permitted by Nevada law of any director or officer who was or is a party to, or is threatened to be made a party to, or is otherwise involved in, any threatened, pending, or completed action, suit or proceeding (including, without limitation, an action, suit or proceeding by or in the right of the corporation), whether civil, criminal, administrative, or investigative (“Proceeding”), by reason of the fact that he or she is or was a director or officer of the corporation or is or was serving in any capacity at the request of the corporation as a director, officer, employee, agent, partner, member, manager or fiduciary of, or in any other capacity for, another corporation or any partnership, joint venture, limited liability company, trust, or other enterprise. Each such indemnitee shall be indemnified and held harmless against all expense, liability and loss (including attorneys’ fees, judgments, fines, taxes, penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection with any Proceeding; provided, that such indemnitee either is not liable pursuant to NRS 78.138 or acted in good faith and in a manner such indemnitee reasonably believed to be in or not opposed to the interests of the corporation and, with respect to any Proceeding that is criminal in nature, had no reasonable cause to believe that his or her conduct was unlawful.
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WWTE, Inc.’s articles of incorporation and bylaws provide for advancement of expenses and for mandatory indemnification of officers and directors, generally subject to exceptions similar to those circumstances constituting prohibitions on permissible indemnification under NRS 78.7502 and 78.751.
WWTE, Inc.’s bylaws require the corporation to pay the expenses of indemnitees as they are incurred and in advance of the final disposition of the Proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by the corporation. To the extent that a director or officer of the corporation is successful on the merits or otherwise in defense of any Proceeding, or in defense of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense.
WWTE, Inc.’s bylaws permit the corporation to purchase and maintain insurance or make any other financial arrangements on behalf of any indemnitee for any liability asserted against him or her and liability and expenses incurred by him or her in his or capacity as a director, officer, employee, member, managing member or agent, or arising out of his or her status as such, whether or not the corporation has the authority to indemnify him or her against such liability and expenses.
Nevada Limited Liability Company Guarantor – Travelscape, LLC
NRS 86.411 permits indemnification (in a proceeding other than by the company) of any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the company, by reason of the fact that he is or was a manager, member, employee or agent of the company, or is or was serving at the request of the company as a manager, member, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorney’s fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. NRS 86.421 permits indemnification (in a proceeding by the company) of any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the company to procure a judgment in its favor by reason of the fact that the person is or was a manager, member, employee or agent of the company, or is or was serving at the request of the company as a manager, member, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person acted in good faith and in a manner in which he reasonably believed to be in or not opposed to the best interests of the company. NRS 86.421 provides further that indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the company or for amounts paid in settlement to the company, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all of the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. NRS 86.431(1) provides, to the extent that a manager, member, employee or agent of a limited liability company has been successful on the merits or otherwise in defense of any action, suit or proceeding described in NRS 86.411 and 86.421, or in defense of any claim, issue or matter therein, the company shall indemnify him or her against expenses, including attorney’s fees, actually and reasonably incurred by him or her in connection with the defense. NRS 86.441 permits the articles of organization, the operating agreement, or a separate agreement of the limited liability company to provide that the expenses of members or managers incurred in defending a civil or criminal action, suit or proceeding must be paid by the company as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the member or manager to repay the amount if it is ultimately determined by a court of competent jurisdiction that the member or manager is not entitled to be indemnified by the company. NRS 86.451 provides that indemnification or advancement of expenses authorized in or ordered by a court pursuant to NRS 86.411 to 86.441, inclusive, does not exclude any other rights to which a person seeking indemnification or advance of expenses may be entitled under the articles of organization or any operating agreement, vote of members or disinterested managers, if any, or otherwise, for an action in the person’s official
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capacity or an action in another capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS 86.421 or for advancement of expenses made pursuant to NRS 86.441, may not be made to or on behalf of any member or manager if a final adjudication establishes that the member’s or manager’s acts or omissions involved intentional misconduct, fraud or knowing violation of the law and was material to the cause of action. Such indemnification or advancement of expenses also continues for a person who has ceased to be a member, manager, employee or agent and inures to the benefit of the heirs, executors and administrators of such a person. NRS 86.461 allows a limited liability company to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a member, manager, employee or agent of the company, or is or was serving at the request of the company as a manager, member, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise for any liability asserted against the person and liability and expenses incurred by the person in his or her capacity as a manager, member, employee or agent, or arising out of his or her status as such, whether or not the company has the authority to indemnify him against such liability and expenses. Travelscape, LLC’s articles of organization and operating agreement require advancement of expenses, in a manner consistent with NRS 86.441, and indemnification to the fullest extent permitted by NRS 86 of the member and any other person designated by the member as a covered person, or any person who was, at the time of the act or omission in question, a member or a person designated by a member as a covered person, generally, to the extent the member determines that indemnification is proper in the circumstances.
Washington Corporation Guarantor – Expedia, Inc.
Washington Business Corporation Act (the “WBCA”) (see RCW 23B.08.320 and RCW 23B.08.500 through 23B.08.603) permits a corporation to indemnify an individual made a party to a proceeding because the individual is or was a director in situations where: (1) the individual acted in good faith; (2) the individual reasonably believed, in the case of conduct in the individual’s official capacity, that the conduct was in the corporation’s best interests, and in all other cases, that the individual’s conduct was at least not opposed to the corporation’s best interests; and (3) in the case of any criminal proceeding, the individual had no reasonable cause to believe his conduct was unlawful. A corporation may not indemnify a director (i) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation, or (ii) in connection with any other proceeding charging improper personal benefit to the director, whether or not involving action in the director’s official capacity, in which the director was adjudged liable for receiving improper personal benefit. Indemnification pursuant to RCW 23B.08.510 is limited to reasonable expenses incurred in connection with the proceeding. Pursuant to RCW 23B.08.520, unless limited by its articles of incorporation, a corporation must indemnify a director or officer who is wholly successful in the defense of any proceeding to which he was a party because of being a director of the corporation. However, RCW 23B.08.560 permits a corporation, if authorized by its articles of incorporation or a bylaw or resolution adopted or ratified by the shareholders, to provide indemnification without regard to the limitations described above; provided that the corporation shall not indemnify a director from or on account of (a) acts or omissions of the director finally adjudged to be intentional misconduct or a knowing violation of law, (b) conduct of the director adjudged to be in violation of the prohibition against unlawful distributions to shareholders, or (c) any transaction with respect to which it was finally adjudged that such director personally received a benefit in money, property, or services to which the director was not legally entitled.
Expedia, Inc.’s (a Washington corporation and wholly owned subsidiary of Expedia Group (“Expedia (WA)”)) restated articles of incorporation, as amended, provide that generally the corporation’s directors shall not be liable to the corporation or its shareholders for monetary damages for conduct as a director, to the full extent permitted by the WBCA.
Expedia (WA)’s bylaws generally provide that the directors and officers will be indemnified to the fullest extent authorized by the WBCA with respect to third-party actions, suits, investigations or proceedings; provided that any such person has met the applicable standard of conduct set forth in the WBCA. Expedia (WA)’s bylaws further provide that directors and officers will be indemnified with respect to actions or suits initiated by such person only if such action was first approved by the board of directors. Expedia (WA)’s bylaws allow the corporation to pay all expenses incurred by a director or officer in defending any proceeding within the scope of the indemnification provisions in advance of its final disposition, upon an undertaking by such party to repay such expenses, if it is ultimately determined that such party was not entitled to indemnity by the corporation. From time to time, Expedia (WA)’s officers and directors may be provided with indemnification agreements that
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are consistent with the foregoing provisions. Expedia (WA) has policies of directors’ and officers’ liability insurance which insure directors and officers against the costs of defense, settlement and/or payment of judgment under certain circumstances. Expedia (WA) believes that these agreements and arrangements are necessary to attract and retain qualified persons as directors and officers.
Washington Limited Liability Company Guarantor – Cruise, LLC
Section 25.15.038 of the Washington Limited Liability Company Act provides that a limited liability company agreement may contain provisions not inconsistent with law that eliminate or limit the personal liability of a member or manager to the limited liability company or its members or other persons bound by a limited liability company agreement for conduct as a member or manager; provided that such provisions do not eliminate or limit the liability of a member or manager for acts or omissions that involve intentional misconduct or a knowing violation of law by a member or manager, for unlawful distributions, or for any act or omission that constitutes a violation of the implied contractual duty of good faith and fair dealing. Section 25.15.041 of the Washington Limited Liability Company Act provides that a limited liability company may indemnify any member or manager from and against any judgments, settlements, penalties, fines, or expenses incurred in a proceeding or obligate itself to advance or reimburse expenses incurred in a proceeding to which an individual is a party because such person is, or was, a member or a manager; provided that no such indemnity shall indemnify a member or a manager from or on account of acts or omissions of the member or manager finally adjudged to be intentional misconduct or a knowing violation of law by the member or manager, or conduct of the member or manager in connection with unlawful distributions.
Cruise, LLC’s operating agreement requires the company to indemnify its sole member for all costs, losses, liabilities and damages paid or accrued by such member, and to advance expenses incurred by the member, in connection with the business of the company to the fullest extent provided or allowed by the Washington Limited Liability Company Act.
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Item 16. | Exhibits. |
The following exhibits are included herein or incorporated herein by reference:
Exhibit No. | Description | ||
Form of Underwriting Agreement for Debt Securities | |||
Form of Indenture of Expedia Group, Inc. | |||
Opinion of Wachtell, Lipton, Rosen & Katz | |||
List of Subsidiary Guarantors | |||
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |||
Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1) | |||
Power of Attorney | |||
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 | |||
Filing Fee Table | |||
* | Filed herewith. |
Item 17. | Undertakings. |
(a) | The 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; |
(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 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 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 paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and 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 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 of 1933, 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. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, 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 be the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities, (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding), is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Expedia Group, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer and Director (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance Soliday | Senior Vice President, Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance Soliday | ||||||
* | Chairman of the Board, Senior Executive and Director | February 19, 2025 | ||||
Barry Diller | ||||||
* | Director | February 19, 2025 | ||||
Beverly Anderson | ||||||
* | Director | February 19, 2025 | ||||
Moina Banerjee | ||||||
* | Director | February 19, 2025 | ||||
Chelsea Clinton | ||||||
* | Director | February 19, 2025 | ||||
Henrique Dubugras | ||||||
* | Director | February 19, 2025 | ||||
Craig Jacobson | ||||||
* | Director | February 19, 2025 | ||||
Dara Khosrowshahi | ||||||
* | Director | February 19, 2025 | ||||
Patricia Menendez Cambo | ||||||
* | Director | February 19, 2025 | ||||
Alex von Furstenberg | ||||||
* | Director | February 19, 2025 | ||||
Alexandr Wang | ||||||
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Cruise, LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
EXPEDIA, INC., its Sole Member | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President, Legal and Assistant Secretary | ||||||||
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
EAN.com, LP | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
HOTELS.COM GP, LLC, its General Partner | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President and Assistant Secretary | ||||||||
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Expedia Group Commerce, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Expedia, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Ariane Gorin | Director | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Director | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Higher Power Nutrition Common Holdings, LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
LIBERTY PROTEIN, INC., its Sole Member | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President, Legal and Assistant Secretary | ||||||||
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
HomeAway Software, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
HomeAway.com, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Hotels.com GP, LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Senior Vice President and Assistant Secretary (Principal Financial Officer) | February 19, 2025 | ||||
Michael S. Marron | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Manager | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Manager | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Hotels.com, L.P. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
HOTELS.COM GP, LLC, its General Partner | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President and Assistant Secretary | ||||||||
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Hotwire, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
HRN 99 Holdings, LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Senior Vice President, Legal and Assistant Secretary (Principal Financial Officer and Principal Accounting Officer) | February 19, 2025 | ||||
Michael S. Marron | ||||||
EXPEDIA, INC., its Sole Member | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President, Legal and Assistant Secretary | ||||||||
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
LEMS I LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
EXPEDIA GROUP, INC., its Sole Member | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President, Legal and Assistant Secretary | ||||||||
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Liberty Protein, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
O Holdings Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Robert J. Dzielak | Chief Legal Officer and Secretary (Principal Executive Officer) | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Orbitz, LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
O HOLDINGS INC., its Managing Member | |||||||||
By: | /s/ Michael S. Marron | February 19, 2025 | |||||||
Name: | Michael S. Marron | ||||||||
Title: | Senior Vice President, Legal and Assistant Secretary | ||||||||
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Orbitz Worldwide, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
Travelscape, LLC | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Manager | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Manager | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
VRBO Holdings, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 Seattle, Washington, on February 19, 2025.
WWTE, Inc. | ||||||
By: | /s/ Michael S. Marron | |||||
Michael S. Marron | ||||||
Senior Vice President, Legal and Assistant Secretary | ||||||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Ariane Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-3 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
/s/ Ariane Gorin | Chief Executive Officer (Principal Executive Officer) | February 19, 2025 | ||||
Ariane Gorin | ||||||
/s/ Scott Schenkel | Chief Financial Officer (Principal Financial Officer) | February 19, 2025 | ||||
Scott Schenkel | ||||||
/s/ Lance A. Soliday | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 19, 2025 | ||||
Lance A. Soliday | ||||||
/s/ Robert J. Dzielak | Director | February 19, 2025 | ||||
Robert J. Dzielak | ||||||
/s/ Michael S. Marron | Director | February 19, 2025 | ||||
Michael S. Marron | ||||||
II-31
Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
$[—]
Expedia Group, Inc.
[—]% [Senior][Subordinated] Notes due [—]
Underwriting Agreement
[—], 20[—]
[—]
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
[Address]
Ladies and Gentlemen:
Expedia Group, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are
acting as representatives (the “Representatives”), $[—] principal amount of its [—]% [Senior][Subordinated] Notes due [—] (the “Securities”). The Securities will be issued pursuant to an Indenture to be dated as of [—] (the “Indenture”)
among the Company, the guarantors listed on Schedule 2 hereto (the “Guarantors”), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), and will, subject to the provisions of the Indenture, be unconditionally
guaranteed on a [senior][subordinated] basis by each of the Guarantors (the “Guarantees”).
The Company and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1.
Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-[—]), including a prospectus, relating to the Securities. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term
“Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement”
with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
At or prior to [—] (New York City time) on the date hereof, the time when sales of the Securities were first made (the “Time of Sale”), the Company and the Guarantors had prepared the
following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated [—], and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto.
2.
Purchase and Sale of the Securities by the Underwriters.
(a)
The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in
Schedule 1 hereto at a price equal to [—]% of the principal amount thereof plus accrued interest, if any, from [—] to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for
all the Securities to be purchased as provided herein.
(b)
The Company and the Guarantors understand that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company and the Guarantors acknowledge and agree that the Underwriters may offer and sell Securities to
or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c)
Payment for and delivery of the Securities will be made at the offices of [Name, Address] at [—], New York City time, on [—], or at such other time or place on the same or
such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
2
(d)
Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to
the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with
the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than the business day prior to the Closing Date.
(e)
The Company and the Guarantors acknowledge and agree that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the
Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any
other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and
the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any
other Underwriter shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representatives or any Underwriter of the Company, the Guarantors, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Company or the Guarantors, as the case may be, or any other person.
3.
Representations and Warranties of the Company and the Guarantors. The Company and the Guarantors jointly and severally represent and warrant to each Underwriter that:
(a)
Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
3
(b)
Time of Sale Information. The Time of Sale Information at the Time of Sale did not, and at
the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided
that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in
writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of
Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
(c)
Issuer Free Writing Prospectus. The Company and
the Guarantors (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to
any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company and the Guarantors or their agents and
representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities
Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex B hereto, including a Pricing Term Sheet substantially in the form of Annex C hereto, which constitute part of the
Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the
Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered
prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free
Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing
Prospectus.
4
(d)
Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust
Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date
of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will comply in all material respects with the Securities Act and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to
(i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement or the Prospectus or any amendment or supplement thereto.
(e)
Incorporated Documents. The documents incorporated by reference in each of the Registration
Statement, the Prospectus and the Time of Sale Information, when they were filed with the Commission conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f)
Financial Statements. The consolidated financial statements and the related notes thereto
included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable,
and present fairly the consolidated financial position of the Company and its subsidiaries (as defined in Section 14 hereof) as of the dates indicated and the consolidated results of their operations and the changes in their consolidated cash flows
for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis in all material respects throughout the periods covered thereby (except as noted
therein), and the supporting schedules, if any, included or incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information present fairly in all material respects the information required to be
stated therein; and the other financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Company and its
subsidiaries and presents fairly in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the
Time of Sale Information fairly presents in all material respects the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
5
(g)
No Material Adverse Change. Since the date of the most recent consolidated financial statements of the Company included or incorporated by reference in
each of the Registration Statement, the Time of Sale Information and the Prospectus, (i) there has not been any material change in the capital stock (other than the issuance of shares of common stock, par value $0.0001 per share upon exercise of
stock options described as outstanding in, and the grant, vesting and forfeiture of options and awards under existing equity incentive plans described in, the Registration Statement, the Time of Sale Information and the Prospectus and other
subsequent changes to capital stock pursuant to the cancellation of treasury shares) or any material change in the long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company or any Guarantor on any class of capital stock or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position
or results of operations of the Company and its subsidiaries taken as a whole; and (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a
whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole, except in each case as otherwise disclosed in each of the Registration
Statement, the Time of Sale Information and the Prospectus.
(h)
Organization and Good Standing. The Company and each of the Guarantors have been duly
organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the
failure to be so duly organized, validly existing in good standing or qualified or to have such power or authority would not, individually or in the aggregate, have a material adverse effect or a prospective material adverse effect on the business,
properties, financial position or results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company or the Guarantors of their respective obligations under the Securities and the Guarantees (a “Material
Adverse Effect”). The direct and indirect subsidiaries of the Company listed in Schedule 3 to this Agreement are the only majority-owned subsidiaries of the Company.
6
(i)
Capitalization. The Company has the capitalization as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization” (except for any subsequent issuances of capital stock pursuant to the exercise of outstanding stock options or under existing employee benefit plans and
stock repurchases materially consistent with prior practice and other subsequent changes to capital stock pursuant to the cancellation of treasury shares) and all the outstanding shares of capital stock or other equity interests of each Guarantor
have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares and except as otherwise described in each of the Registration Statement, the Time
of Sale Information and the Prospectus) and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other similar claim of any third party.
(j)
Due Authorization. The Company and each of the Guarantors have full right, power and authority to execute and deliver this Agreement, the Securities,
the Indenture (including each Guarantee set forth therein) (collectively, the “Transaction Documents”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(k)
The Indenture. The Indenture has been duly authorized by the Company and each of the Guarantors and on the Closing Date will be duly executed and
delivered by the Company and each of the Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by
equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); and on the Closing Date the Indenture will have been duly qualified under the Trust Indenture Act.
(l)
The Securities and the Guarantees. The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the
Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the
Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m)
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors.
7
(n)
Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in each of
the Registration Statement, the Time of Sale Information and the Prospectus.
(o)
No Violation or Default. Neither the Company nor any of the Guarantors is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound or to which any of the property or assets of the Company or any Guarantor is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(p)
No Conflicts. The execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is
a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents
will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Guarantor pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound or to which any of
the property or assets of the Company or any Guarantor is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any Guarantor or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would
not, individually or in the aggregate, have a Material Adverse Effect.
(q)
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities , the issuance of the
Guarantees and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for (i) the registration of the Securities and the Guarantees
under the Securities Act, (ii) the qualification of the Indenture under the Trust Indenture Act, (iii) such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws
in connection with the purchase and distribution of the Securities by the Underwriters and (iv) such consents, approvals, authorizations, orders and registrations the failure of which to obtain would not adversely affect the Underwriters and
would not result in a Material Adverse Effect.
8
(r)
Legal Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal,
governmental or regulatory investigations, suits or proceedings (“Actions”) pending to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; no Actions are, to the best knowledge of the Company and each of the Guarantors, threatened or contemplated by any governmental or
regulatory authority or threatened by others; and (i) there are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement or the Prospectus that are not so described in the Registration
Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described
in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.
(s)
Independent Accountants. Ernst & Young LLP, who have certified certain financial statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the
Securities Act.
(t)
Intellectual Property. The Company and the Guarantors own or possess adequate rights to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary
for the conduct of their respective businesses, except where the failure to own or possess such rights would not reasonably be expected to have a Material Adverse Effect; and (i) except as would not reasonably be expected to have a Material
Adverse Effect, the conduct of their respective businesses will not conflict in any respect with any such rights of others, and (ii) the Company, the Guarantors and the Company’s other subsidiaries have not received any notice of any material
claim of infringement or conflict with any such rights of others.
(u)
No Undisclosed Relationships. No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, or other affiliates of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in each of the
Registration Statement and the Prospectus and that is not so described in such documents and in the Time of Sale Information.
9
(v)
Investment Company Act. Neither the Company, nor any of the Guarantors is, and after giving
effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, none of them will be an “investment company” or an
entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(w)
Taxes. Except as otherwise disclosed in each of the Registration Statement, the Time of
Sale Information and the Prospectus or as would not reasonably be expected to have a Material Adverse Effect, (i) the Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid
or filed through the date hereof and (ii) there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets.
(x)
Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not, individually or in the
aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(y)
Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(z)
Accounting Controls. The Company and its subsidiaries maintain systems of “internal control
over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles, including, without limitation, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the book value
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale
Information and the Prospectus, there are no material weaknesses in the Company’s internal controls.
10
(aa)
No Unlawful Payments. Neither the Company nor any of its subsidiaries nor any director or
officer of the Company or any of its subsidiaries nor, to the knowledge of the Company and each of the Guarantors, any agent, employee, or affiliate of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or
domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered,
agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its
subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures reasonably designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(bb)
Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of
its subsidiaries conducts business, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering
Laws is pending or, to the knowledge of the Company or any of the Guarantors, threatened.
11
(cc)
No Conflicts with Sanctions Laws. Neither the Company nor any of its subsidiaries,
directors or officers, nor, to the knowledge of the Company or any of the Guarantors, any agent, employee or affiliate acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered
or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”),
and, to the extent applicable, any Sanctions administered or enforced by the United Nations Security Council (“UNSC”), the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company, any of its subsidiaries or any of the Guarantors located, or to the extent prohibited by applicable law, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without
limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the Crimea region of Ukraine and other Covered Regions (as defined
in the Executive Order 14065) of Ukraine identified pursuant to the Executive Order 14065, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of
the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of
such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country to the extent such activity is prohibited under any applicable Sanctions or (iii) in any
other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(dd)
Solvency. On and immediately after the Closing Date, the Company (after giving effect to
the issuance of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent”
means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and its subsidiaries taken as a whole on a going concern basis is not less than the sum of
their total existing debts and liabilities (including identified contingent liabilities) taken as a whole; (ii) the Company and its subsidiaries on a consolidated basis are able to pay their debts and other liabilities as they mature and become due
in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or
liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged.
(ee)
No Broker’s Fees. Neither the Company nor any Guarantor is a party to any contract, agreement or understanding with any person (other than this
Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
12
(ff)
No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(gg)
No Stabilization. Neither the Company nor any of the Guarantors has taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(hh)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the Time of Sale Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(ii)
Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of
the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(jj)
Status under the Securities Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
(kk)
Cybersecurity; Data Protection. Except (i) as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or (ii) as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, (A) the Company and its subsidiaries’ information technology assets and
equipment, computers, systems, networks, hardware, software, websites, applications and databases (collectively, “IT Systems”) are adequate for, and operate and perform as required in connection with the operation of the business of the
Company and its subsidiaries as currently conducted, free and clear of all Trojan horses, time bombs and malware, (B) the Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures and
safeguards to maintain and protect their confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated
data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, outages or unauthorized uses of or accesses to same nor any incidents under internal review or investigations relating to the same, except, in
each case, for those that have been remedied or may reasonably be expected to be remedied without material cost or liability or the duty to notify any other person and (C) the Company and its subsidiaries are presently in compliance with all
applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and
Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
13
4.
Further Agreements of the Company and the Guarantors. The Company and the Guarantors jointly and severally covenant and agree with each Underwriter that:
(a)
Required Filings. The Company and the Guarantors will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex B hereto) to the extent required
by Rule 433 under the Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free
Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may
reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing
Date.
(b)
Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives, two signed copies of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Securities by any Underwriter or dealer.
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus with respect to this offering, whether before or after the time that the Registration Statement becomes effective the Company
will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer
Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
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(d)
Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any amendment to the
Prospectus or any Issuer Free Writing Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event within the Prospectus
Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of the
receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of
the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e)
Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of
which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the
statements in any of the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.
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(f)
Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed with the
Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented including such documents to be incorporated by reference will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g)
Blue Sky Compliance. The Company and the Guarantors will reasonably cooperate with the
Underwriters to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for
distribution of the Securities; provided that neither the Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction, (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject or (iv) make any change to its charter or
by-laws or similar organizational documents.
(h)
Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with
the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i)
Clear Market. During the period from the date hereof through and including the date that is
one day after the Closing Date, the Company and each of the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company
or any of the Guarantors and having a tenor of more than one year.
(j)
Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time
of Sale Information and the Prospectus under the heading “Use of Proceeds”.
16
(k)
No Stabilization. Neither the Company nor any of the Guarantors will take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(l)
Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m)
Ratings. The Company and the Guarantors will take all reasonable action necessary to enable
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and Moody’s Investors Service, Inc. to provide their respective ratings of the Securities.
(n)
The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Securities Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
5.
Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a)
It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free
writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex B or
prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.
(b)
It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
6.
Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the
performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
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(a)
Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer
Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a)
hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b)
Representations and Warranties. The representations and warranties of the Company and the
Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date.
(c)
No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Securities or any other debt securities of or guaranteed by the Company, any Guarantor or any of the Company’s other subsidiaries by any “nationally recognized statistical rating organization”, as such term is
defined under Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt
securities of or guaranteed by the Company, any Guarantor or any of the Company’s other subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d)
No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of
which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e)
Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date a certificate of the Company’s chief financial officer (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the best knowledge of such officer, the
representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company and the Guarantors have
complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f)
Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and
the Prospectus; provided that the letter delivered on the date of this Agreement and the Closing Date shall use “cut-off” dates no more than three business days prior to the date of this Agreement and the Closing Date, respectively.
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(g)
Opinion of In-House Counsel of the Company. The Chief Legal Officer and Secretary of the Company, shall have furnished to the Representatives, at the
request of the Company a written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A-1 hereto.
(h)
Opinion of Counsel for the Company and the Guarantors. Wachtell, Lipton, Rosen & Katz,
counsel for the Company and the Guarantors, shall have furnished to the Representatives, at the request of the Company and the Guarantors, their written opinion letter and negative assurance letter, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A-2 hereto.
(i)
Opinion of [Guarantor] Counsel. [Guarantor counsel], counsel for certain of the Guarantors,
shall have furnished to the Representatives, at the request of such Guarantors, their written opinion letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives,
substantially to the effect set forth in Annex A-3 hereto.
(j)
Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have
received on and as of the Closing Date an opinion letter and 10b-5 statement of [—], counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such matters.
(k)
No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the
Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees.
(l)
Good Standing. The Representatives shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and the Guarantors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in
writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
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(m)
DTC. The Securities shall be eligible for clearance and settlement through DTC.
(n)
Additional Documents. On or prior to the Closing Date, the Company and the Guarantors shall
have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance
reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and Contribution.
(a)
Indemnification of the Underwriters. The Company and each Guarantor (so long as such
Guarantor remains a Subsidiary Guarantor (as defined in the Indenture) under the Indenture), jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein (it being understood and agreed that the only such information is that described as such in Section 7(b) hereof).
(b)
Indemnification of the Company and the Guarantors. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each
Guarantor (so long as such Guarantor remains a Subsidiary Guarantor (as defined in the Indenture) under the Indenture), their respective directors and officers who signed the Registration Statement and each person, if any, who controls the
Company and the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such
information consists of the following paragraphs or sentences in the Preliminary Prospectus and the Prospectus: [—].
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(c)
Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly
notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under
paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified
the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the
Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be
designated in writing by the Representatives and any such separate firm for the Company and the Guarantors, their respective directors, their respective officers who signed the Registration Statement and any control persons of the Company and the
Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person
(which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
21
(d)
Contribution. If the indemnification provided for in paragraph (a) or (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on
the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds
(before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any Guarantor or by the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
(e)
Limitation on Liability. The Company, the Guarantors and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating, defending or preparing any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities
exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
22
(f)
Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
8.
Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9.
Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company and the Guarantors, if after the execution
and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market or minimum prices shall have been established on
any such exchange or market by the Commission, by such exchange or by another regulatory body or governmental authority having jurisdiction; (ii) trading of any securities issued or guaranteed by the Company or any of the Guarantors shall have been
suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the reasonable judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10.
Defaulting Underwriter.
(a)
If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may
in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters
do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms.
If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non‑defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company and the
Guarantors agree to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for
all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
23
(b)
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company
as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c)
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company
as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company or the
Guarantors, except that the Company and each of the Guarantors will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in
effect.
(d)
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company, the Guarantors or any non-defaulting Underwriter for damages
caused by its default.
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11.
Payment of Expenses.
(a)
Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors jointly and severally
agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and the Guarantees and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees
and expenses of the Company’s and the Guarantors’ counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under
the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters, which fees and expenses of such
counsel shall not exceed $15,000); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority; and (ix) all expenses incurred by the Company in connection with any “road show” presentation
to potential investors; provided, however, that, except as otherwise provided herein, the Underwriters shall pay their own costs and expenses, including the fees and expenses of counsel to the Underwriters, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of the Securities made by the Underwriters.
(b)
If (i) this Agreement is terminated pursuant to Section 9 (other than if the Company, the Guarantors and the Underwriters subsequently enter into another agreement for the
Underwriters to underwrite the same or substantially similar securities of the Company), (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities
for any reason permitted under this Agreement relating to the failure of the Company or any Guarantor to perform any obligation or satisfy any condition applicable to it, the Company and the Guarantors agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
12.
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the
officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13.
Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Guarantors and the Underwriters contained
in this Agreement or made by or on behalf of the Company, the Guarantors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in
full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantors or the Underwriters.
25
14.
Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule
405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under
the Securities Act.
15.
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the
Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that
will allow the Underwriters to properly identify their respective clients.
16.
Miscellaneous.
(a)
Authority of the Representatives. Any action by the Underwriters hereunder may be taken by [—] on behalf of the Underwriters, and any such action taken
by [—] shall be binding upon the Underwriters.
(b)
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o [—]. Notices to the Company and the Guarantors shall be given to them at Expedia Group, Inc., 1111 Expedia Group Way W.,
Seattle, Washington 98119; Attention: Chief Financial Officer (with a copy to the Chief Legal Officer at the same address).
(c)
Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d)
Submission to Jurisdiction. The Company and each of the Guarantors hereby submit to the
exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company
and each of the Guarantors waive any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each of the Company and each of the Guarantors agree that a final judgment in any such suit,
action or proceeding brought in such court shall be conclusive and binding upon the Company and each Guarantor, as applicable, and may be enforced in any court to the jurisdiction of which Company and each Guarantor, as applicable, is subject by a
suit upon such judgment.
(e)
Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this
Agreement.
26
(f)
Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this
Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were
governed by the laws of the United States or a state of the United States.
As used in this Section 16(f):
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act and the regulations promulgated thereunder.
(g)
Counterparts. This Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and valid and effective for all purposes.
27
(h)
Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties hereto.
(i)
Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very truly yours,
|
|
|
EXPEDIA GROUP, INC.,
|
|
|
as Issuer
|
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|
CRUISE, LLC
|
|
|
EXPEDIA GROUP COMMERCE, INC.
|
|
|
EXPEDIA, INC.
|
|
|
HIGHER POWER NUTRITION COMMON
HOLDINGS, LLC
|
|
|
HOMEAWAY SOFTWARE, INC.
|
|
|
HOMEAWAY.COM, INC.
|
|
|
HOTELS.COM, L.P.
|
|
|
HOTWIRE, INC.
|
|
|
HRN 99 HOLDINGS, LLC
|
|
|
LEMS I, LLC
|
|
|
LIBERTY PROTEIN, INC.
|
|
|
O HOLDINGS INC.
|
|
|
ORBITZ, LLC
|
|
|
ORBITZ WORLDWIDE, INC.
|
|
|
TRAVELSCAPE, LLC
|
|
|
VRBO HOLDINGS, INC.
|
|
|
WWTE, INC.,
|
|
|
EAN.COM, LP
|
|
|
HOTELS.COM GP, LLC,
|
|
|
as Guarantors
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
29
Accepted: [—]
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
|
[—],
|
|
||
|
|
|||
| by | |||
|
Name:
|
|||
|
Title:
|
|||
30
Exhibit 4.1
EXPEDIA GROUP, INC.,
as Issuer,
the Subsidiary Guarantors, from time to time parties hereto,
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Indenture
Dated as of [ ]
EXPEDIA GROUP, INC.
Indenture Dated as of [ ].
CROSS REFERENCE SHEET*.
Showing the Location in the Indenture of the Provisions Inserted Pursuant to Sections 310 to 318(a) inclusive of the Trust Indenture Act of 1939.
|
Provisions of Trust Indenture Act of 1939
|
Indenture Provision
|
||||
|
§
|
310
|
(a)(1)
|
§ |
8.09
|
|
|
(a)(2)
|
§ |
8.09
|
|||
|
(a)(3)
|
§ |
Not Applicable
|
|||
|
(a)(4)
|
§ |
Not Applicable
|
|||
|
(a)(5)
|
§ |
8.08;
|
|||
|
(b)
|
§ |
8.08; § 8.10
|
|||
|
§
|
311
|
(a)
|
§ |
8.13
|
|
|
(b)
|
§ |
8.13
|
|||
|
§
|
312
|
(a)
|
§ |
9.01; § 9.02(a)
|
|
|
(b)
|
§ |
9.02(b)
|
|||
|
(c)
|
§ |
9.02(c)
|
|||
|
§
|
313
|
(a)
|
§ |
9.03
|
|
|
(b)(1)
|
Not Applicable
|
||||
|
(b)(2)
|
§ |
9.03
|
|||
|
(c)
|
§ |
9.03
|
|||
|
(d)
|
§ |
9.03
|
|||
|
§
|
314
|
(a)
|
§ |
9.04
|
|
|
(b)
|
Not Applicable
|
||||
|
(c)
|
§ |
1.02
|
|||
|
(d)
|
Not Applicable
|
||||
|
(e)
|
§ |
1.02
|
|||
|
§
|
315
|
(a)(1)
|
§ |
8.01(a)(i)
|
|
|
(a)(2)
|
§ |
8.01(a)(ii)
|
|||
|
(b)
|
§ |
8.02
|
|||
|
(c)
|
§ |
8.01(b)
|
|||
|
(d)(1)
|
§ |
8.01(a)
|
|||
|
(d)(2)
|
§ |
8.01(c)(ii)
|
|||
|
(d)(3)
|
§ |
8.01(c)(iii)
|
|||
|
(e)
|
§ |
7.14
|
|||
|
§
|
316
|
(a)
|
§ |
7.12; § 7.13
|
|
|
(b)
|
§ |
7.08
|
|||
|
(c)
|
§ |
1.04
|
|||
|
§
|
317
|
(a)(1)
|
§ |
7.03
|
|
|
(a)(2)
|
§ |
7.04
|
|||
|
(b)
|
§ |
12.03
|
|||
|
§
|
318
|
(a)
|
§ |
1.08
|
|
| * |
This Cross Reference Sheet is not part of the Indenture.
|
-i-
TABLE OF CONTENTS
| Page |
||
| ARTICLE ONE | ||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||
|
Section 1.01.
|
Definitions
|
2
|
|
Section 1.02.
|
Compliance Certificates and Opinions
|
8
|
|
Section 1.03.
|
Form of Documents Delivered to Trustee
|
9
|
|
Section 1.04.
|
Act of Holders
|
9
|
|
Section 1.05.
|
Notices, etc., to Trustee and Company
|
10
|
|
Section 1.06.
|
Notice to Holders; Waiver
|
10
|
|
Section 1.07.
|
Immunity of Incorporator, Stockholders, Officers and Directors
|
11
|
|
Section 1.08.
|
Conflict with Trust Indenture Act
|
11
|
|
Section 1.09.
|
Effect of Headings and Table of Contents
|
11
|
|
Section 1.10.
|
Successors and Assigns
|
11
|
|
Section 1.11.
|
Separability Clause
|
11 |
|
Section 1.12.
|
Benefits of Indenture
|
12
|
|
Section 1.13.
|
Governing Law
|
12
|
|
Section 1.14.
|
Cross References
|
12
|
|
Section 1.15.
|
Counterparts
|
12
|
|
Section 1.16.
|
Legal Holidays
|
12
|
|
Section 1.17.
|
Securities in Foreign Currencies
|
12
|
|
Section 1.18.
|
Waiver of Jury Trial
|
12
|
|
Section 1.19.
|
Force Majeure
|
13
|
|
Section 1.20.
|
FATCA
|
13
|
|
Section 1.21.
|
Electronic Signatures
|
13
|
|
ARTICLE TWO
|
||
|
SECURITY FORMS
|
||
|
Section 2.01.
|
Forms Generally
|
13
|
|
Section 2.02.
|
Form of Certificate of Authentication
|
14
|
|
Section 2.03.
|
Securities in Global Form
|
14
|
|
ARTICLE THREE
|
||
|
THE SECURITIES
|
||
|
Section 3.01.
|
Amount Unlimited; Issuable in Series
|
14 |
|
Section 3.02.
|
Denominations
|
18
|
|
Section 3.03.
|
Authentication and Dating
|
18
|
|
Section 3.04.
|
Execution of Securities
|
19
|
|
Section 3.05.
|
Exchange and Registration of Transfer of Securities
|
19
|
-ii-
|
Section 3.06.
|
Mutilated, Destroyed, Lost or Stolen Securities
|
21
|
|
Section 3.07.
|
Temporary Securities
|
22
|
|
Section 3.08.
|
Payment of Interest; Interest Rights Preserved
|
23
|
|
Section 3.09.
|
Persons Deemed Owners
|
24
|
|
Section 3.10.
|
Cancellation
|
24
|
|
Section 3.11.
|
Computation of Interest
|
24
|
|
Section 3.12.
|
CUSIP
|
24
|
|
ARTICLE FOUR
|
||
|
REDEMPTION OF SECURITIES
|
||
|
Section 4.01.
|
Applicability of Article
|
25
|
|
Section 4.02.
|
Election to Redeem; Notice to Trustee
|
25
|
|
Section 4.03.
|
Selection by Trustee of Securities to Be Redeemed
|
25
|
|
Section 4.04.
|
Notice of Redemption
|
25
|
|
Section 4.05.
|
Deposit of Redemption Price
|
26
|
|
Section 4.06.
|
Securities Payable on Redemption Date
|
27
|
|
Section 4.07.
|
Securities Redeemed in Part
|
27
|
|
ARTICLE FIVE
|
||
|
SINKING FUNDS
|
||
|
Section 5.01.
|
Applicability of Article
|
27
|
|
Section 5.02.
|
Satisfaction of Mandatory Sinking Fund Payments with Securities
|
27
|
|
Section 5.03.
|
Redemption of Securities for Sinking Fund
|
28
|
|
ARTICLE SIX
|
||
|
DISCHARGE OF INDENTURE; DEFEASANCE
|
||
|
Section 6.01.
|
Discharge of Liability on Securities; Defeasance
|
29
|
|
Section 6.02.
|
Conditions to Defeasance
|
30
|
|
Section 6.03.
|
Application of Trust Money
|
31
|
|
Section 6.04.
|
Repayment to the Company
|
31
|
|
Section 6.05.
|
Indemnity for Government Obligations
|
32
|
|
Section 6.06.
|
Reinstatement
|
32
|
|
ARTICLE SEVEN
|
||
|
REMEDIES
|
||
|
Section 7.01.
|
Events of Default
|
32
|
|
Section 7.02.
|
Acceleration of Maturity; Rescission and Annulment
|
34 |
|
Section 7.03.
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
35
|
|
Section 7.04.
|
Trustee May File Proofs of Claim
|
36
|
|
Section 7.05.
|
Trustee May Enforce Claims without Possession of Securities
|
36
|
-iii-
|
Section 7.06.
|
Application of Money Collected
|
36
|
|
Section 7.07.
|
Limitation on Suits
|
37
|
|
Section 7.08.
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
37
|
|
Section 7.09.
|
Restoration of Rights and Remedies
|
37 |
|
Section 7.10.
|
Rights and Remedies Cumulative
|
38
|
|
Section 7.11.
|
Delay or Omission Not Waiver
|
38
|
|
Section 7.12.
|
Control by Holders
|
38
|
|
Section 7.13.
|
Waiver of Past Defaults
|
38
|
|
Section 7.14.
|
Undertaking for Costs
|
38 |
|
Section 7.15.
|
Waiver of Stay or Extension Laws
|
39
|
|
ARTICLE EIGHT
|
||
|
THE TRUSTEE
|
||
|
Section 8.01.
|
Certain Duties and Responsibilities
|
39
|
|
Section 8.02.
|
Notice of Defaults
|
40
|
|
Section 8.03.
|
Certain Rights of Trustee
|
40 |
|
Section 8.04.
|
Not Responsible for Recitals or Issuance of Securities
|
42
|
|
Section 8.05.
|
May Hold Securities
|
42
|
|
Section 8.06.
|
Money Held in Trust
|
42
|
|
Section 8.07.
|
Compensation and Reimbursement
|
42
|
|
Section 8.08.
|
Disqualification; Conflicting Interests
|
43
|
|
Section 8.09.
|
Corporate Trustee Required; Different Trustees for Different Series; Eligibility
|
43
|
|
Section 8.10.
|
Resignation and Removal; Appointment of Successor
|
44
|
|
Section 8.11.
|
Acceptance of Appointment by Successor
|
45
|
|
Section 8.12.
|
Merger, Conversion, Consolidation or Succession to Business
|
46
|
|
Section 8.13.
|
Preferential Collection of Claims against Company
|
46 |
|
Section 8.14.
|
Authenticating Agent
|
46 |
|
ARTICLE NINE
|
||
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
||
|
Section 9.01.
|
Company to Furnish Trustee Names and Addresses of Holders
|
48
|
|
Section 9.02.
|
Preservation of Information; Communications to Holders
|
48
|
|
Section 9.03.
|
Reports by Trustee
|
48 |
|
Section 9.04.
|
Reports by Company
|
48 |
|
ARTICLE TEN
|
||
|
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
|
||
|
Section 10.01.
|
When the Company or a Subsidiary Guarantor May Merge or Transfer Assets
|
49
|
-iv-
|
Section 10.02.
|
Successor Corporation Substituted
|
49 |
|
ARTICLE ELEVEN
|
||
|
SUPPLEMENTAL INDENTURES
|
||
|
Section 11.01.
|
Supplemental Indentures without Consent of Holders
|
50
|
|
Section 11.02.
|
Supplemental Indentures with Consent of Holders
|
51 |
|
Section 11.03.
|
Execution of Supplemental Indentures
|
52 |
|
Section 11.04.
|
Notice of Supplemental Indenture
|
53 |
|
Section 11.05.
|
Effect of Supplemental Indentures
|
53 |
|
Section 11.06.
|
Conformity with Trust Indenture Act
|
53
|
|
Section 11.07.
|
Reference in Securities to Supplemental Indentures
|
53
|
|
ARTICLE TWELVE
|
||
|
COVENANTS
|
||
|
Section 12.01.
|
Payment of Principal, Premium and Interest
|
53
|
|
Section 12.02.
|
Maintenance of Office or Agency
|
53
|
|
Section 12.03.
|
Money for Securities Payments to Be Held in Trust
|
54
|
|
Section 12.04.
|
Compliance Certificate
|
55 |
|
Section 12.05.
|
Corporate Existence
|
55
|
|
Section 12.06.
|
Permit No Vacancy in Office of Trustee
|
55
|
|
Section 12.07.
|
Waiver
|
55
|
|
ARTICLE THIRTEEN
|
||
|
GUARANTEES
|
||
|
Section 13.01.
|
Guarantees
|
56 |
|
Section 13.02.
|
No Subrogation
|
57
|
|
Section 13.03.
|
Consideration
|
57 |
|
Section 13.04.
|
Limitation on Subsidiary Guarantor Liability
|
58 |
|
Section 13.05.
|
Execution and Delivery
|
58
|
|
Section 13.06.
|
Release of Subsidiary Guarantors
|
58 |
-v-
INDENTURE, dated as of [ ], between EXPEDIA GROUP, INC., a Delaware corporation (the “Company”), the Subsidiary Guarantors, from time to time parties hereto, and U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION, as trustee hereunder (the “Trustee”).
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate purposes and to issue debentures, notes or other evidences of unsecured indebtedness therefor; and for its corporate purposes, the Company has determined to
make and issue its debentures, notes or other evidences of unsecured indebtedness to be issued in one or more series (the “Securities”), as hereinafter provided, up to such principal amount or amounts as may
from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors.
The Company wishes to permit certain Subsidiaries of the Company to make the Guarantees permitted pursuant to Section 3.01 and set forth in Section
13.01 with respect to Securities of certain series issued under this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture, and shall be governed by such provisions; provided that
if any provision of this Indenture modifies any TIA provision that may be so modified, such TIA provision shall be deemed to apply to this Indenture as so modified; provided, further, that if any provision of this Indenture excludes any TIA provision that may be so excluded, such TIA provision shall be excluded from this Indenture.
All things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar to the Company duly paid by
the Trustee at or before the ensealing and delivery of these presents, and for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to declare the terms and conditions upon which the Securities are to be issued,
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the parties hereto, that all the Securities are to be executed, authenticated and delivered subject to the further covenants and conditions hereinafter set forth; and the Company, for
itself and its successors, does hereby covenant and agree to and with the Trustee and its successors in said trust, for the benefit of those who shall hold the Securities, or any of them, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, of all indentures supplemental hereto and all Securities issued hereunder except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in
this Article shall have the meanings assigned to them in this Article, and include the plural as well as the singular; (b) all terms used in this Indenture, in any indenture supplemental hereto or in any such Securities which are defined in the
Trust Indenture Act shall have the meanings assigned to them in said Act; and (c) all accounting terms not otherwise defined herein or in such Securities shall have the meanings assigned to them in accordance with generally accepted accounting
principles.
Certain terms used in Article Eight hereof are defined in that Article.
“Act” when used with respect to any Holder has the meaning specified in Section 1.04(a) hereof.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 8.14 to
authenticate Securities.
“Bankruptcy Law”: See Section 7.01 hereof.
“Board of Directors” or “Board” means, with respect to any Person, the Board of Directors of such Person or any committee thereof duly
authorized to act on behalf of such Board or, in the case of a Person that is not a corporation, the group exercising the authority generally vested in a board of directors of a corporation.
“Board Resolution” means a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted or a unanimous
written consent executed by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions or trust companies in New York City are authorized or required by law,
regulation or executive order to close.
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“Capital Stock” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in
(however designated) equity of such Person, including any preferred stock, partnership interests and limited liability company membership interests, but excluding any debt securities convertible into such equity.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Company” means the Person named as the “Company” in the preamble to this Indenture until a successor corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter, the “Company” shall mean such successor corporation.
“Company Order” and “Company Request” mean, respectively, a written consent, order or request signed in the name of the Company by the
Chairperson of the Board, the President, the Chief Executive Officer, the Controller, the Chief Operating Officer, any Executive or Senior Vice President, Managing Director or any Vice President (whether or not designated by a number or numbers or
word added before or after the title “Vice President”), the Treasurer, the Assistant Treasurer, the Chief Financial Officer, the Chief Accounting Officer, the Chief Legal Officer, the General Counsel, the Secretary or the Assistant Secretary, and
delivered to the Trustee.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ability to
exercise voting power, by contract or otherwise. A person shall be deemed to Control another person if such person (1) is an officer or director of the other person or (2) directly or indirectly owns or controls 10% or more of the other person’s
Capital Stock. The terms “Controlling” and “Controlled” have meanings correlative thereto.
“Corporate Trust Office” means the designated office of the Trustee at which, at any particular time, this Indenture shall be administered; which office at the date of the
execution of this Indenture is located at 190 S. LaSalle Street, Chicago, IL 60603 ATTN: Global Corporate Trust, or at any other time at such other address as the Trustee may designate from time to time by notice to the Holders.
“corporation” means a corporation, association, company or business trust.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest”: See Section 3.08 hereof.
“Depositary” when used with respect to the Securities of any series issuable or issued, in whole or in part, in the form of a Global Security, means the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or
include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that
series.
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“Dollars” and the sign “$” mean the coin or currency of the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
“Domestic Subsidiary” means a Subsidiary other than a Foreign Subsidiary.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder.
“Event of Default”: See Section 7.01 hereof.
“FATCA Withholding Tax”: See Section 1.20 hereof.
“Foreign Currency” means any currency issued by the government of any country other than the United States of America or any composite currency (including, without limitation,
the European Currency Unit) acceptable to the Trustee.
“Foreign Subsidiary” means (1) any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code), (2) any Subsidiary of any entity
described in clause (1) of this definition and (3) any Subsidiary that has no material assets other than Capital Stock in one or more persons that are Foreign Subsidiaries pursuant to clause (1) above.
“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.
“Global Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered to the
Depositary or pursuant to the Depositary’s instructions, all in accordance with this Indenture and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee.
“Guarantee” means any guarantee, if applicable, by any Subsidiary Guarantor endorsed on a Security authenticated and delivered pursuant to this Indenture and any Guarantees of
any Subsidiary Guarantor established in accordance with Section 3.01 and set forth in Section 13.01.
“Holder” means, unless otherwise established as contemplated by Section 3.01 with respect to the Securities of any series, a Person in
whose name a Security of any series is registered in the Securities Register for the Securities of such series.
“Indebtedness” means, with respect to any Person, obligations (other than Nonrecourse Obligations) of such Person for borrowed money (including, without limitation, indebtedness
for borrowed money evidenced by notes, bonds, debentures or similar instruments).
“Indenture” means this instrument as originally executed, or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of
the Securities of each series established as contemplated by Sections 2.01 and 3.01.
“interest” when used with respect to any non-interest bearing Security means interest payable after Maturity thereof.
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“Interest Payment Date” when used with respect to the Securities of any series means the Stated Maturity of an installment of interest on the Securities of such series.
“Maturity” when used with respect to any Security means the date on which the principal of such Security becomes due and payable whether at the Stated Maturity or by declaration
of acceleration, call for redemption, pursuant to a sinking fund, notice of option to elect repayment or otherwise.
“Nonrecourse Obligation” means indebtedness or other obligations substantially related to (1) the acquisition of assets not previously owned by the Company, any Subsidiary
Guarantor or any of the Company’s other direct or indirect Subsidiaries or (2) the financing of a project involving the development or expansion of properties of the Company, any Subsidiary Guarantor or any of the Company’s other direct or indirect
Subsidiaries, as to which the obligee with respect to such indebtedness or obligation has no recourse to the Company, any Subsidiary Guarantor or any of the Company’s other direct or indirect Subsidiaries or any of the Company’s, any Subsidiary
Guarantor’s or such Subsidiary’s assets other than the assets which were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
“Obligations”: See Section 13.01 hereof.
“Officer” means, with respect to the Company or any Subsidiary Guarantor, the Chairperson of the Board, President, the Chief Executive Officer, the Controller, the Chief
Operating Officer, any Executive or Senior Vice President, Managing Director or any Vice President (whether or not designated by a number or numbers or word added before or after the title “Vice President”), the Treasurer, the Assistant Treasurer,
the Chief Financial Officer, the Chief Accounting Officer, the Chief Legal Officer, the General Counsel, the Secretary or the Assistant Secretary, in each case, of the Company or such Subsidiary Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed by any two Officers of the Company. Wherever this Indenture requires that an Officers’
Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be in the employ of the Company.
“Opinion of Counsel” means a written opinion from legal counsel to the Company. The counsel may be an employee of the Company. Opinions of Counsel required to be delivered
under this Indenture may have qualifications customary for opinions of the type required and counsel delivering such Opinions of Counsel may rely on certificates of the Company or governmental or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact.
“Original Issue Discount Security” means any Security less than the principal amount of which becomes due and payable upon a declaration of acceleration pursuant to Section 7.02 hereof.
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“Outstanding” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities or portions thereof for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if such
Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c) Securities paid or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture unless proof satisfactory to the Trustee is presented that any such
Securities are held by a holder in due course; provided, however, that in determining whether the Holders of the requisite principal amount of Securities
Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded (Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor), and (ii) the principal amount of an Original Issue Discount Security
that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 7.02 hereof.
“Overdue Rate” when used with respect to the Securities of any series means the rate designated as such, established as contemplated by Section
3.01 for the Securities of such series.
“Paying Agent” means any Person authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Place of Payment” when used with respect to the Securities of any series means the place or places where the principal of (and premium, if any) and interest, if any, on the
Securities of such series are specified as payable, established as contemplated by Section 3.01 or, if not so established, specified in Section 12.02.
“record date”: See Section 3.08 hereof.
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“Redemption Date” when used with respect to any Security or portion thereof to be redeemed means the date fixed for such redemption pursuant hereto.
“Redemption Price” when used with respect to any Security or portion thereof to be redeemed on any Redemption Date means the price at which it is to be so redeemed, established
as contemplated by Section 3.01 exclusive of interest accrued and unpaid to such Redemption Date.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, who customarily performs functions
similar to those performed by the Persons who shall have direct responsibility for the administration of this Indenture and also, with respect to a particular matter, any other officer to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject.
“SEC” means the U.S. Securities and Exchange Commission, or any successor agency.
“Securities”: See RECITALS OF THE COMPANY herein.
“Securities Register” and “Securities Registrar”: See Section 3.05 hereof.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof until the exercise of such option by such holder).
“Successor”: See Section 10.01(a) hereof.
“Subsidiary” means, with respect to any person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of that date, as well as any
other corporation, limited liability company, partnership, association or other entity (1) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of that date, owned, controlled or held or (2) that is, as of that date, otherwise Controlled (within the meaning of the first sentence of the definition of “Control”), by the
parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary Guarantor” means any Subsidiary of the Company as may from time to time provide a Guarantee with respect to the Securities of a particular series pursuant to Section 3.01 and as set forth in Section 13.01, until released from such Guarantee pursuant to the provisions of this Indenture and the terms of such series of
Securities.
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“Trust Indenture Act” and “TIA” mean the U.S. Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” and “TIA” mean, to
the extent required by any such amendments, the U.S. Trust Indenture Act of 1939, as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument and, subject to the provisions of Article
Eight hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at any one time more than one Trustee hereunder, “Trustee” shall mean each such Trustee and shall apply to
each such Trustee only with respect to the Securities of those series with respect to which it is serving as Trustee.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the option of the issuer thereof.
“Vice President” when used with respect to the Company means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
Section 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent (including any covenant compliance with which constitutes a condition precedent), if any,
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, if any, have been complied with.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual making such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Section 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion 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 may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm
of accountants in the employ of the Company, unless such Officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters
upon which his or her certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated
to form one instrument.
Section 1.04. Act of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as 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. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section
8.01 hereof) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may be proved in any manner that the Trustee deems sufficient and in
accordance with such reasonable requirements as the Trustee may determine.
(c) The ownership of Securities of any series shall be proved by the Securities Register.
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(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind the Holder of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee or the Company or any agent of the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent or take any other action under this Indenture, which record date shall not be more than 60
days nor less than 10 days prior to the solicitation with respect thereto, and only such Holders shall be so entitled.
Section 1.05. Notices, etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in Subsection (d) of Section 7.01 hereof) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the
Company.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, or other similar unsecured electronic methods; provided,
however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which
such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail instructions (or instructions by a similar electronic method) and the Trustee
in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. 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 instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic
methods to submit instructions and directions 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.
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Section 1.06. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if (i) for global notes, delivered electronically in accordance with the depositary’s applicable procedures, or (ii) for certificated notes, in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such person’s address as it appears in the Securities Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice
delivered in the manner prescribed by this Indenture shall be deemed to have been given whether or not such Holder receives said notice. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.07. Immunity of Incorporator, Stockholders, Officers and Directors. No recourse shall be had for the payment of the
principal of (and premium, if any) or the interest, if any, on any Security of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director,
as such, past, present or future of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, because of the incurring of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly
released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Securities.
Section 1.08. Conflict with Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision
included or which is required to be included in this Indenture by the Trust Indenture Act, the duty or provision required by the Trust Indenture Act shall control.
Section 1.09. Effect of Headings and Table of Contents. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 1.10. Successors and Assigns. All agreements of the Company in this Indenture and any Securities issued under this
Indenture shall bind its successors and assigns. All agreements of the Trustee in this Indenture shall bind its successors.
Section 1.11. Separability Clause. In case any provision in this Indenture or in any Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions hereof or of any Securities shall not in any way be affected or impaired thereby.
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Section 1.12. Benefits of Indenture. Nothing in this Indenture or in the Securities, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law. This Indenture and each Security shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 1.14. Cross References. All references herein to “Articles” and other subdivisions are to the corresponding Articles or
other subdivisions of this Indenture; and the words “herein”, “hereof”, “hereby”, “hereunder”,
“hereinbefore” and “hereinafter” and other words of similar purport refer to this Indenture generally and not to any particular Article, Section or other subdivision
hereof.
Section 1.15. 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 1.16. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Stated Maturity or other payment date of a Security of any series is not a
Business Day at the relevant Place of Payment with respect to Securities of such series, then notwithstanding any other provision of this Indenture or the Securities, payment of interest, if any, principal, if any, premium, if any, or other
amounts, if any, with respect to such Security need not be made at such Place of Payment on such date but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made at the Stated Maturity or
on such Interest Payment Date, Redemption Date or other payment date, and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or other payment date, as the case may be.
Section 1.17. Securities in Foreign Currencies. Whenever this Indenture provides for any action by, or any distribution to,
Holders of Securities denominated in Dollars and in any Foreign Currency, in the absence of any provision to the contrary established as contemplated by Section 3.01 for the Securities of any particular
series, any amount in respect of any Security denominated in a Foreign Currency shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of
such date as the Company may specify in a Company Order.
Section 1.18. Waiver of Jury Trial. EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES ISSUED UNDER THE INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
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Section 1.19. 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, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, epidemic, pandemic or disease, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 1.20. FATCA. The Trustee and the Company shall each be entitled to deduct any withholding tax required to be withheld under Section 1471(b) of the Code or
otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof (“FATCA Withholding Tax”), and shall have no obligation
to gross-up any payment hereunder or to pay any additional amount as a result of such FATCA Withholding Tax. Each of the Company and the Trustee agrees to reasonably cooperate and to use commercially reasonable efforts to provide information as
each may have in its possession to enable the determination of whether any payments pursuant to this Indenture are subject to FATCA Withholding Tax.
Section 1.21. Electronic Signatures. For the avoidance of doubt, for all purposes of this Indenture and any document to be signed or delivered in connection with or
pursuant to this Indenture (except where a manual signature is expressly required by the terms of this Indenture), the words “execution,” “signed,” “signature,” “delivery,” and words of like import shall be deemed to include electronic signatures,
including without limitation digital signature provided by DocuSign (or such other digital signature provider as specified in writing to Trustee by the authorized representative), deliveries or the keeping of records in electronic form, as the case
may be, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct
the transactions contemplated hereunder by electronic means. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications 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.
ARTICLE TWO
SECURITY FORMS
Section 2.01. Forms Generally. The Securities of each series shall be in substantially the forms as shall be established by or
pursuant to Board Resolution or one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities
exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities of each series shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner, all as determined by
the officers executing such Securities, as evidenced by their execution of such Securities.
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Section 2.02. Form of Certificate of Authentication. The Certificate of Authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
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Dated:
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U.S. Bank Trust Company,
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National Association, as Trustee
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By
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[Authorized Officer]
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or
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By
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[As Authenticating Agent]
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By
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[Authorized Officer]
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Section 2.03. Securities in Global Form. If any Security of a series is issuable as a Global Security (in whole or in part), such Global Security may provide that it
shall represent the aggregate principal amount of Outstanding Securities of such series from time to time represented thereby in the records of the Trustee or endorsed thereon and may also provide that the aggregate principal amount of Outstanding
Securities of such series represented thereby in the records of the Trustee or endorsed thereon may from time to time be reduced or increased. Any change in the records of the Trustee or any endorsement of a Global Security to reflect the
aggregate principal amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in accordance with provisions established as contemplated by Section
3.01.
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is
unlimited.
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The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution or one or more indentures supplemental hereto, prior to the issuance of any Securities of any series:
(a) the title of the Securities of such series (which shall distinguish the Securities of such series from all other series of Securities);
(b) any limit upon the aggregate principal amount of the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered pursuant to Section 3.05, 3.06, 3.07, 4.07, or 11.07 hereof);
(c) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of and premium, if any, on the Securities of such series is payable;
(d) the Persons to whom interest on Securities of such series shall be payable, if other than the Persons in whose names such Securities are registered at the close of business on the record date for such
interest;
(e) the rate or rates, or the method to be used in determining the rate or rates, at which the Securities of such series shall bear interest, if any, the date or dates from which such interest shall accrue or
the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and, if other than as set forth in Section 3.08 hereof, the record date for
the determination of Holders to whom such interest is payable, and the basis upon which Interest shall be calculated if other than as set forth in Section 3.11;
(f) the place or places at which (i) the principal of and premium, if any, and interest, if any, on Securities of such series shall be payable if other than as set forth in the third sentence of Section 12.02, (ii) registration of transfer of Securities of such series may be effected, (iii) exchanges of Securities of such series may be effected and (iv) notice and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served; and if such is the case, that the principal of such Securities shall be payable without the presentment or surrender thereof;
(g) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series may be redeemed, in whole or in part, at the option of the Company, at the
option of a Holder or otherwise;
(h) the obligation, if any, of the Company to redeem, purchase or repay Securities of such series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or
prices at which, the period or periods within which and the terms and conditions upon which Securities of such series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(i) if other than Dollars, the Foreign Currency or Foreign Currencies in which payment of the principal of and premium, if any, and interest, if any, on the Securities of such series shall be payable or in
which such Securities will be denominated;
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(j) if the principal of and premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency (including a
composite currency) other than that in which such Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(k) if denominated or payable in any coin or currency, including composite currencies, other than Dollars, or if the terms of the Securities provide that the principal amount thereof payable at maturity may be
more or less than the principal face amount thereof at original issuance, the method by which the Securities of such series shall be valued, which may be any reasonable method, against the Securities of all other series for voting, the giving of
any request, demand, authorization, direction, notice, consent or waiver, distribution and all other purposes hereof and any provisions required for purposes of applying Sections 6.01 and 6.02 hereof;
(l) if the amount of payments of principal of and premium, if any, or interest, if any, on the Securities of such series may be determined with reference to an index, the formula or other method (which may be
based on one or more currencies (including a composite currency), commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(m) if other than denominations of $2,000 and any integral multiple thereof, the denominations in which Securities of such series shall be issuable;
(n) if other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02 hereof or the method by which such portion shall be determined;
(o) any addition to, or modification or deletion of, any Event of Default or any covenant of the Company specified herein with respect to the Securities of such series;
(p) if other than the rate of interest stated in the title of the Securities of such series, the applicable Overdue Rate;
(q) if the Securities of such series do not bear interest, the applicable dates for purposes of Section 9.01 hereof;
(r) the inapplicability to the Securities of such series of Section 6.01 relating to satisfaction, discharge and defeasance of Securities or, if applicable, any
modification to Section 6.01 with respect to the Securities of such series;
(s) if other than U.S. Bank Trust Company, National Association is to act as Trustee for the Securities of such series, the name and Corporate Trust Office of such Trustee;
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(t) whether the Securities of such series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case the terms and conditions, if any, upon which such Global Security
or Securities may be exchanged in whole or in part for other definitive Securities, the Depositary for such Global Security or Securities (which shall be a clearing agency registered under the Exchange Act, or any other applicable statute or
regulation, to the extent required thereunder), whether such Global Security shall be permanent or temporary, any limitations on the rights of the Holder or Holders to transfer or exchange the same or to obtain the registration of transfer thereof
in addition to or in lieu of those set forth in Section 3.05, any limitations on the rights of the Holder or Holders thereof to obtain certificates in definitive form, and, the provisions for determining
the aggregate principal amount of Outstanding Securities from time to time represented thereby and any and all matters incidental to such Global Security or Securities;
(u) if the Securities of such series may be converted into or exchanged for other securities of the Company or any other Persons, the terms and conditions pursuant to which the Securities of such series may be
converted or exchanged;
(v) if the principal of or premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in securities or other property, the type
and amount of such securities or other property, or the method by which such amount shall be determined, and the periods within which, and the terms and conditions upon which, any such election may be made;
(w) if the Securities of such series are to be secured;
(x) if the Securities of such series are to be issued upon the exercise of a warrant or right, the time, manner and place for such Securities to be authenticated and delivered;
(y) if Securities of such series are guaranteed by any Subsidiary Guarantors and any deletions from, modifications to or additions to Article Thirteen, the Events of Default or covenants with respect to such
Subsidiary Guarantors with respect to Securities of such series, whether or not such changes are consistent with Article Thirteen, the Events of Default or covenants set forth herein;
(z) any other terms of the Securities of such series (which terms shall conform to any applicable requirements of the TIA, and shall not materially adversely affect the rights of the Holders of Securities then
outstanding);
(aa) the subordination, if any, of the Securities of the series pursuant to this Indenture and any changes or additions to the provisions of this Indenture then in effect;
(bb) with regard to Securities of the series that do not bear interest, the dates for certain required reports to the Trustee;
(cc) any U.S. Federal Income tax consequences applicable to the Securities;
(dd) whether and under what circumstances the Company will pay additional amounts to non-United States Holders of Securities of such series in respect of any tax assessment or government charge; and
(ee) the date as of which any Global Securities will be dated if other than the date of original issuance of the first Securities of a particular series to be issued.
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All Securities of any one series shall be substantially identical except as to principal amount and except as may otherwise be established as contemplated by this Section 3.01.
Section 3.02. Denominations. Unless otherwise established as contemplated by Section 3.01,
the Securities of each series shall be issuable only in registered form without coupons in such denominations as shall be established as contemplated by Section 3.01 or in the absence thereof, in
denominations of $2,000 and any integral multiple thereof.
Section 3.03. Authentication and Dating. 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 to the Trustee for authentication. Except as otherwise provided in this Article, the Trustee shall thereupon authenticate and deliver, or cause to be authenticated and delivered, said Securities pursuant to a
Company Order. In authenticating (or causing authentication of) such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Company shall provide the Trustee with, prior to the
authentication of such Securities, and (subject to Sections 8.01 and 8.03 hereof) the Trustee shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary of the
Company;
(b) an executed supplemental indenture, if any, relating thereto;
(c) an Officers’ Certificate setting forth the form and terms of the Securities of such series as established as contemplated by Sections 2.01 and 3.01 hereof (to the extent not set forth in the documents
delivered pursuant to Subsection 3.03(a) or 3.03(b)) and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Securities have been complied with, that no Event of Default with respect to the
Securities of any Series has occurred and is continuing and that the issuance of such Securities is not and will not result in a Default or Event of Default; and
(d) an Opinion of Counsel stating:
(i) that the form and terms of such Securities have been established as contemplated by Sections 2.01
and 3.01 in conformity with the provisions of this Indenture; and
(ii) that such Securities, when executed and delivered by the Company, and authenticated and delivered
by or on behalf of the Trustee in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to such
qualifications as are set forth in such Opinion of Counsel.
The Trustee shall have the right to decline to authenticate and deliver, or cause to be authenticated and delivered, any Securities under this Section 3.03 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders or would otherwise adversely affect
its rights, duties, obligations or immunities hereunder.
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Each Security shall be dated the date of its authentication.
Section 3.04. Execution of Securities. The Securities shall be signed in the name and on behalf of the Company by the manual or electronic signature of an Officer of
the Company, whose signature may be imprinted or otherwise reproduced thereon, including without limitation via DocuSign. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited,
executed by or on behalf of the Trustee by manual signature, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by or on behalf of the Trustee upon any Security executed by the Company
shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of the Company who shall have signed any of the Securities shall cease to be such Officer before the Securities so signed shall have been authenticated and delivered by or on behalf of the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer of the Company; and any Security may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.
Section 3.05. Exchange and Registration of Transfer of Securities. Securities of any series (except for Global Securities, which may only be exchanged in limited
circumstances described below) may be exchanged for a like aggregate principal amount of Securities of the same series of other authorized denominations. Unless otherwise established as contemplated by Section
3.01, Securities to be exchanged shall be surrendered at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Company shall
execute and register, or cause to be registered, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange therefor the Security or Securities which the Holder making such exchange shall be entitled to
receive.
Unless otherwise established as contemplated by Section 3.01, the Company shall keep at the office or agency in the same city in which the Corporate Trust Office of the
Trustee is located, a register for the Securities of each series issued hereunder (the register maintained at such office or agency and at any other office or agency of the Company in a Place of Payment being herein collectively referred to as the
“Securities Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities of such series and registration of transfer of such
Securities as provided in this Article. Such Securities Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Trustee is hereby initially appointed “Securities Registrar”
for the purpose of registering Securities and registering transfers of Securities as herein provided. Upon due presentment for registration of transfer of any Security of any series at any of the offices or agencies of the Company maintained as
provided in Section 12.02 hereof for such purpose, the Company shall execute and register, or cause to be registered, and the Trustee shall authenticate and deliver, or cause to be authenticated and
delivered, in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for an equal aggregate principal amount.
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Every Security issued upon registration of transfer or exchange of Securities pursuant to this Section 3.05 shall be the valid obligation of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Security or Securities surrendered upon registration of such transfer or exchange.
All Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company, the Trustee or the Securities Registrar) be duly endorsed by, or be accompanied by, a
written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Securities Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.07, 4.07 or 11.07 hereof not involving any transfer.
The Company shall not be required (a) to issue, register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 days before the day of the delivery of a notice of
redemption of Securities of such series and ending at the close of business on the day of such delivery or (b) to register the transfer of or exchange any Security selected for redemption in whole or in part, except, in the case of any Security to
be redeemed in part, the portion thereof not to be redeemed.
Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a custodian
therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise specified as contemplated by Section 3.01,
no Global Security shall be registered for transfer or exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07 or 11.07 in the name of a Person other than the
Depositary for such Security or its nominee until (i) the Depositary with respect to a Global Security notifies the Company in writing that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be
a clearing agency registered under the Exchange Act or other applicable statute or regulation if required thereunder, and the Company notifies the Trustee that it is unable to locate a qualified successor Depositary, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so transferable and exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect to the Securities of such series. Upon the occurrence
in respect of any Global Security of any series of any one or more of the conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may be specified as contemplated by Section 3.01 for such series, such Global Security may be registered for transfer or exchange for Securities registered in the names of, or authenticated and delivered to, such Persons as the Depositary with respect to such series
shall instruct the Trustee in writing. The Trustee, upon receipt of such instruction, will authenticate and deliver Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
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Except as provided in the preceding paragraph, any Security authenticated and delivered upon registration of transfer or, or in exchange for, or in lieu of, any Global Security or any portion thereof, whether pursuant
to this Section 3.05, Sections 3.06, 3.07, 4.07 or 11.07 or otherwise, shall also be a Global Security. Notwithstanding any other provision of this Indenture, a Global Security may not be transferred
except as a whole by the Depositary for such Global Security to a nominee of such Depositary or to another Depositary or a nominee thereof or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or to another
Depositary or a nominee thereof.
Upon such terms established as contemplated by Section 3.01 with respect to the Securities of any series, the Depositary for the Securities of such series may surrender a
Global Security for such series in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form. Thereupon the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate
and deliver, without service charge, (i) to the Depositary or to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms in definitive form and of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a principal amount equal to the
difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered pursuant to clause (i).
Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security pursuant to this Section
shall either be in global form, established as contemplated by Sections 2.01 and 3.01, or shall be registered in such names and in such authorized denominations and delivered to the Depositary or to such Persons at such addresses as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing.
The Trustee, registrar and transfer agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer or exchange imposed under this Indenture or under
applicable law with respect to any transfer or exchange of any interest in any Security (including any transfers between or among Depositary participants or other beneficial owners of interests in any Global Security) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
Section 3.06. 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, and in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company 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 a Company Request the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, a new Security of the same series bearing a number, letter or other distinguishing symbol 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, or if any such Security shall have become due and payable or shall be about to
become due and payable, instead of issuing a substituted Security, the Company may pay or authorize the payment of the same without surrender thereof (except in the case of a mutilated Security). 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 and of the ownership thereof.
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Upon the issuance of any substituted Security under this Section 3.06, 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 (including the fees and expenses of the Trustee and any Authenticating Agent) connected therewith.
Every substituted Security of any series issued pursuant to the provisions of this Section 3.06 by virtue of the fact that any Security of such series is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions of this Section 3.06
are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude (to the extent lawful) any and all other rights or remedies with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 3.07. Temporary Securities. Pending the preparation of definitive Securities of any series the Company may execute and the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, temporary Securities of such series (printed, lithographed, typewritten, mimeographed or otherwise produced). Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company with the concurrence
of the Trustee. Every such temporary Security shall be executed by the Company and shall be authenticated by or on behalf of Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive
Securities in lieu of which they are issued. Without unreasonable delay the Company will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor, at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series. Such exchange shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving any registration of transfer the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder. Notwithstanding the foregoing provisions of this Section 3.07, Global Securities may remain in temporary form and, unless otherwise established as contemplated by Section 3.01, shall not be exchangeable for
definitive Global Securities.
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Section 3.08. Payment of Interest; Interest Rights Preserved. The Holder at the close of business on any record date with respect to any Interest Payment Date shall be
entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to the record date and prior to such Interest Payment Date. Except as
otherwise established as contemplated by Section 3.01 for Securities of a particular series, the term “record date” as used in this Section 3.08 with respect to any Interest Payment Date, shall mean the last day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month, and shall mean the
fifteenth day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month, whether or not such day shall be a Business Day.
If and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, such defaulted interest (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered Holder on such record date by virtue of having been such Holder; and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may make payment of any Defaulted Interest to the Holders entitled thereto at the close of business on a subsequent record date established in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each applicable Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as in this clause (a) provided. Thereupon the Trustee shall fix a record date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such record date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted Interest and the record date therefor to be delivered electronically or mailed first-class postage prepaid, to each Holder entitled thereto at his address as it appears on
the Securities Register, not less than 10 days prior to such record date. Notice of the proposed payment of such Defaulted Interest and the record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders
of applicable Securities at the close of business on such record date (notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to such record date and prior to such payment) and shall no longer be payable
pursuant to the following clause (b).
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(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities
of such series 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 (b), such manner of payment shall be deemed practicable by
the Trustee. Subject to the foregoing provisions of this Section 3.08, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.09. Persons Deemed Owners. Prior to the due presentment for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any and (subject to Section 3.08 hereof)
interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Securities Registrar shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and they shall be protected in acting or refraining from acting on any such information provided by the
Depositary.
Section 3.10. Cancellation. All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer or for credit against any sinking
fund shall, if surrendered to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Trustee and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities and deliver a certificate of such disposal to the Company upon its request therefor unless, by a
Company Order, the Company directs that such cancelled Securities be returned to it. If the Company shall acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for cancellation.
Section 3.11. Computation of Interest. Except as otherwise established as contemplated by Section 3.01 hereof for Securities
of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.12. CUSIP. 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 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 and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption 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.
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ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 4.01. Applicability of Article. The provisions of this Article shall be applicable to all Securities which are redeemable before their Stated Maturity except as
otherwise established as contemplated by Section 3.01 hereof for Securities of any series.
Section 4.02. Election to Redeem; Notice to Trustee. In case of any redemption at the election of the Company of less than all of the Securities of a series, the
Company shall, at least five Business Days prior to the date chosen for giving such notice to the Holders (unless the Trustee shall agree to a shorter period), deliver to the Trustee an Officers’ Certificate setting forth such Redemption Date, the
principal amount of Securities of such series to be redeemed and that such redemption complies with the conditions under this Indenture.
Section 4.03. Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed, the particular Securities of such
series to be redeemed shall be selected not more than 60 days prior to the Redemption Date, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and in
accordance with applicable Depositary procedures and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of such series or any integral multiple thereof) of the principal of
Securities of a denomination greater than the minimum authorized denomination for Securities of such series.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be redeemed, whether or not such provisions so provide.
Section 4.04. Notice of Redemption. At least 15 days but not more than 60 days before a date for redemption of any Security of any series, the Company shall mail by
first-class mail or electronically deliver a notice of redemption to each Holder of such Securities of such series to be redeemed at its registered address. Notice of any redemption may, at the Company’s discretion, be subject to one or more
conditions precedent. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such
conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date so delayed.
The notice shall identify the Securities of any series to be redeemed and shall state:
(a) the aggregate amount of Securities of such series to be redeemed;
(b) the Redemption Date;
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(c) the Redemption Price (or the method of calculating such price) and the amount of accrued interest to be paid, if any;
(d) the name and address of the Paying Agent;
(e) that Securities of such series called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any;
(f) if fewer than all the outstanding Securities of such series are to be redeemed, the certificate number (if certificated) and principal amounts of the particular Securities of such series to be redeemed;
(g) that, unless the Company defaults in making such redemption payment, interest on Securities of such series (or portion thereof) called for redemption ceases to accrue on and after the Redemption Date;
(h) the CUSIP number, or any similar number, if any, printed on the Securities being redeemed;
(i) that no representation is made as to the correctness or accuracy of the CUSIP number, or any similar number, if any, listed in such notice or printed on the Securities of such series; and
(j) any condition precedent to such redemption.
At the Company’s written request (which may be rescinded or revoked at any time prior to the time at which the Trustee shall have given such notice to the Holders), the Trustee shall give the notice of redemption in
the name of the Company and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section 4.04 at least five Business Days prior to the date chosen for giving such notice to the
Holders (unless the Trustee shall agree to a shorter period). The notice, if mailed or electronically delivered in the manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or electronic delivery or any defect in the notice to the Holder of any Security of any series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Securities of any series.
Section 4.05. Deposit of Redemption Price. By no later than 11:00 a.m. (New York City time) on the Redemption Date, the Company shall deposit with the Paying Agent (or,
if the Company or any of its Subsidiaries is the Paying Agent, shall segregate and hold in trust) an amount of money sufficient to pay the Redemption Price of and accrued and unpaid interest on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which are owned by the Company or a Subsidiary and have been delivered by the Company or such Subsidiary to the Trustee for cancellation. All money, if any, earned on funds held by the
Paying Agent shall be remitted to the Company. In addition, the Paying Agent shall promptly return to the Company any money deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price of, and
accrued interest, if any, on, all Securities to be redeemed.
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Unless the Company defaults in the payment of such Redemption Price, interest on the Securities or portions of Securities to be redeemed shall cease to accrue on and after the applicable Redemption Date, whether or not
such Securities are presented for payment.
Section 4.06. Securities Payable on Redemption Date. Once notice of redemption is mailed or electronically delivered in accordance with Section 4.04, subject to the
satisfaction of any conditions precedent set forth in such notice, Securities called for redemption shall become due and payable on the Redemption Date and at the Redemption Price as stated in the notice. Upon surrender to the Paying Agent on or
after the Redemption Date, such Securities shall be paid at the Redemption Price stated in the notice, plus accrued and unpaid interest to the Redemption Date; provided that the Company shall have deposited
the Redemption Price with the Paying Agent or the Trustee on or before 11:00 a.m. (New York City time) on the date of redemption. Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any
other Holder. Holders of record on the relevant record date shall be entitled to receive interest due on an interest payment date occurring on or prior to a Redemption Date.
Section 4.07. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate for the
Holder thereof (at the Company’s expense) a new Security, equal in principal amount to the unredeemed portion of the Security surrendered; provided that each new Security shall be in a minimum denomination
or an integral multiple in excess thereof as contemplated by Section 3.01 or Section 3.02.
ARTICLE FIVE
SINKING FUNDS
Section 5.01. Applicability of Article. The provisions of this Article Five shall be applicable to any sinking fund for the retirement of Securities except as otherwise
established as contemplated by Section 3.01 for Securities of any series.
The minimum amount of any sinking fund payment established as contemplated by Section 3.01 for Securities of any series is herein referred to as a “mandatory sinking fund
payment,” and any permitted payment in excess of such minimum amount established as contemplated by Section 3.01 for Securities of any series is herein referred to as an “optional sinking fund payment.”
Section 5.02. Satisfaction of Mandatory Sinking Fund Payments with Securities. In lieu of making all or any part of any mandatory sinking fund payment with respect to
any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Securities of that
series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
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Section 5.03. Redemption of Securities for Sinking Fund. Not less than 15 days prior to each sinking fund payment date for the Securities of any series, the Company will
deliver to the Trustee a certificate signed by an Officer of the Company specifying the amount of such next ensuing mandatory sinking fund payment, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of such series pursuant to Section 5.02 (which Securities will accompany such certificate) and whether the Company intends to make any permitted optional sinking fund payment in
connection therewith. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to Securities of such series. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate when due (or to deliver the Securities specified in this
Section 5.03) the sinking fund payment due on the next succeeding sinking fund payment date for Securities of that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory
sinking fund payment without the option to deliver or credit Securities as provided in Section 5.02 and without the right to make any optional sinking fund payment, in connection therewith.
Any sinking fund payment or payments (mandatory or optional) with respect to the Securities of any particular series made in cash plus any unused balance of any preceding sinking fund payments with respect to Securities
of such series made in cash which shall equal or exceed $100,000 or the equivalent thereof in the Foreign Currency in which such series is denominated (or a lesser sum if the Company shall so request) shall be applied by the Trustee on the sinking
fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Securities at the Redemption Price
specified in such Securities for operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of such Securities shall be
added to the next cash sinking fund payment received by the Trustee for Securities of such series and, together with such payment, shall be applied in accordance with the provisions of this Section 5.03. Any and all sinking fund moneys with respect
to the Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities shall be applied by the Trustee,
together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity.
The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in the first paragraph of Section 4.03 hereof and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 4.04 hereof. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 4.06 and 4.07 hereof.
On or before any sinking fund payment date, the Company shall deposit with the Trustee an amount of money sufficient to pay any interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
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The Trustee shall not redeem any Securities of any series with sinking fund moneys or deliver any notice of redemption of Securities of such series by operation of the sinking fund therefor during the continuance of a
default in payment of interest on Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to Securities of such series, except that if the notice of redemption of
any Securities of such series shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance
with the terms of this Article Five. Except as aforesaid, any moneys in the sinking fund for Securities of such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such default or Event of Default, be held as security for the payment of such Securities; provided, however, that in case such Event of
Default or default shall have been cured or waived as, provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Securities on which such moneys may be applied pursuant to the provisions of this
Section 5.03.
ARTICLE SIX
DISCHARGE OF INDENTURE; DEFEASANCE
Section 6.01. Discharge of Liability on Securities; Defeasance.
(a) With respect to any Securities of or within a series, when (i) the Company delivers to the Trustee all Outstanding Securities of such series that have not already been delivered to the Trustee for
cancellation or (ii)(A) all Outstanding Securities have become due and payable, whether at maturity, as a result of repayment at the option of the Holders or as a result of the mailing or electronic delivery of a notice of redemption pursuant to
Article Four hereof or (B) the Securities of such series shall become due and payable at their Stated Maturity within one year, or the Securities of such series 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, in each case of this clause (ii), the Company irrevocably deposits or causes to be deposited with the Trustee in trust funds in U.S.
dollars in an amount sufficient, or U.S. Government Obligations, which through the scheduled payment of principal of and interest thereon will be sufficient, or a combination thereof sufficient, without reinvestment, in the written opinion of a
nationally recognized firm of independent accounts (which need not be provided if only U.S. dollars shall have been deposited), to pay at maturity or upon redemption all Outstanding Securities of such series, including interest thereon to maturity or
such Redemption Date, and if in the case of either clause (i) or (ii) the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 6.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate from the Company and an Opinion of Counsel from the Company that all conditions precedent provided herein relating to
satisfaction and discharge of this Indenture have been complied with.
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(b) Subject to Sections 6.01(c) and 6.02, the Company at any time may terminate (i) all of its obligations under the Securities of any series and this Indenture (“legal
defeasance option”) or (ii) the operation of Sections 7.01(d), 7.01(e), 7.01(f) and 7.01(i) (“covenant defeasance option”) and, if specified pursuant to Section 3.01, its obligations under any other covenant. The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option with respect to the Securities of any series, payment of the Securities of such series may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the Securities may not be accelerated because of an Event of Default specified in Sections 7.01(d), 7.01(e), 7.01(f) and 7.01(i).
Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 3.06, 6.04, 6.05, 6.06, 8.07, 8.10, 12.01, 12.02 and 12.04 shall survive until the Securities of such series have been paid in
full. Thereafter, the Company’s and the Trustee’s obligations in Sections 6.04, 6.05 and 8.07 shall survive such satisfaction and discharge.
Section 6.02. Conditions to Defeasance. The Company may exercise its legal defeasance option or its covenant defeasance option with respect to a series of Securities
only if:
(a) the Company irrevocably deposits or causes to be deposited in trust with the Trustee funds in U.S. dollars in an amount sufficient, or U.S. Government Obligations, which through the scheduled payment of
principal of and interest thereon will be sufficient, or a combination thereof sufficient, without reinvestment to pay the principal, premium, if any, and interest when due on all Outstanding Securities of such series (except Securities replaced
pursuant to Section 3.06) to maturity or redemption, as the case may be;
(b) unless only U.S. dollars shall have been so deposited, the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their written opinion that the
scheduled payments of principal and interest on the deposited U.S. Government Obligations plus any deposited money shall be sufficient, without reinvestment, to pay the principal, premium, if any, and interest when due on all Outstanding Securities
of such series to maturity or redemption, as the case may be;
(c) 91 days pass after the deposit is made and during the 91-day period no default specified in Section 7.01(g) or
Section 7.01(h) occurs which is continuing at the end of the period;
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(d) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of
the Company or any Subsidiary Guarantors;
(e) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred;
(f) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance
had not occurred; and
(g) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities as contemplated by this
Article Six have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article Four.
Section 6.03. Application of Trust Money. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article Six. It shall
apply the deposited money and the money from U.S. Government Obligations (including the proceeds thereof) either directly or through the Paying Agent as the Trustee may determine and in accordance with this Indenture to the payment of principal of,
premium, if any, and interest on the Securities.
Section 6.04. Repayment to the Company. The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or securities held by them
at any time.
Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal or interest that remains unclaimed for
two years after the date of payment of such principal and interest, and, thereafter, Holders of Securities of the applicable series entitled to the money must look to the Company for payment as general creditors.
Any unclaimed funds held by the Trustee pursuant to this Section 6.04 shall be held uninvested and without any liability for interest.
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Section 6.05. Indemnity for Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations other than any such tax, fee or other charge which by law is for the account of the Holders of the defeased Securities; provided
that the Trustee shall be entitled to charge any such tax, fee or other charge to such Holder’s account.
Section 6.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with this Article Six by reason of
any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of the applicable
series shall be revived and reinstated as though no deposit had occurred pursuant to this Article Six until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this
Article Six; provided, however, that (a) if the Company has made any payment of interest on or principal of any Securities following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent and (b) unless otherwise required by any legal
proceeding or any order or judgment of any court or governmental authority, the Trustee or Paying Agent shall return all such money and U.S. Government Obligations to the Company promptly after receiving a written request therefor at any time, if
such reinstatement of the Company’s obligations has occurred and continues to be in effect.
ARTICLE SEVEN
REMEDIES
Section 7.01. Events of Default.
“Event of Default” whenever used herein with respect to Securities of any series means any one of the following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 3.01 hereof, continued for the period of time, if any, and after the giving of notice, if any, designated herein or therein, as the case may be, unless the same is either not applicable to the
Securities of such series or is deleted or modified in the terms of the Securities of such series established as contemplated by Section 3.01 hereof:
(a) there is a default in any payment of interest on any Security of such series when the same becomes due and payable, and such default continues for 30 days;
(b) there is a default in the payment of the principal or premium, if any, of any Security of such series when the same becomes due and payable at its Stated Maturity, upon optional redemption or otherwise;
(c) there is a default in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due and payable by the terms of the Securities of such series;
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(d) the Company or, if Guarantees are issued, any Subsidiary Guarantor fails to comply with any of its agreements in respect of the Securities of such series contained in this Indenture or in such Securities
(other than those referred to in clauses (a), (b) and (c)) or established as contemplated by Section 3.01 hereof for the Securities of such series, and such failure
continues for 90 days after the notice specified below;
(e) there is a failure to make any payment at maturity, including any applicable grace period, in respect of Indebtedness of the Company or any of its Subsidiaries (other than Indebtedness of the Company or any
of its Subsidiaries owing to the Company or any of its Subsidiaries) in an amount in excess of $100,000,000 or the equivalent thereof in any other currency or composite currency and such failure shall have continued for 30 days after the notice
specified below; provided, however, that if any such failure shall cease, or be cured, waived, rescinded or annulled, then the Event of Default by reason thereof
shall be deemed likewise to have been cured;
(f) there is a default with respect to any Indebtedness of the Company or any of its Subsidiaries (other than Indebtedness of the Company or of any of its Subsidiaries owing to the Company or any of its
Subsidiaries), which default results in the acceleration of such Indebtedness in an amount in excess of $100,000,000 or the equivalent thereof in any other currency or composite currency without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled for a period of 30 days after the notice specified below; provided, however, that if any such default or
acceleration shall be cured, waived, rescinded or annulled, then the Event of Default by reason thereof shall be deemed likewise to have been cured;
(g) the Company or, if Guarantees are issued, any Subsidiary Guarantor, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case in which it is the debtor;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or, if Guarantees are issued, any Subsidiary Guarantor in an involuntary case;
(ii) appoints a Custodian of the Company or for any substantial part of the property of the Company or, if Guarantees are issued, any Subsidiary Guarantor; or
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(iii) orders the winding up or liquidation of the Company or, if Guarantees are issued, any Subsidiary Guarantor;
(or any similar relief is granted under any foreign laws) and the order, decree or relief remains unstayed and in effect for 60 consecutive days; or
(i) if Guarantees are issued, the Guarantee of any Subsidiary Guarantor ceases to be in full force and effect during its term or such Subsidiary Guarantor denies or disaffirms in writing its obligations under
the terms of this Indenture or its Guarantee, in each case, other than any such cessation, denial or disaffirmation in connection with the termination of such Guarantee pursuant to the provisions of Article Thirteen.
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or governmental body.
The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
If any failure, default or acceleration referred to in clause (e) or (f) above shall cease or be cured, waived, rescinded or annulled, then the Event of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon cured.
A Default with respect to Securities of such series under clause (d), (e) or (f) of this Section 7.01 is not an Event of Default until
the Trustee (by notice to the Company) or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series (by notice to the Company and to the Trustee) gives notice of the Default and the Company does not cure
such Default within the time specified in said clause (d), (e) or (f) after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default”.
The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any event which with the giving of notice or the lapse of time would become
an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
Section 7.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to the Securities of any series at the time outstanding (other than
an Event of Default specified in Section 7.01(g) or Section 7.01(h) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders, shall, declare the principal of (or, if the
Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series), premium, if any, and accrued and unpaid interest on all the Securities of such series to be due
and payable. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest shall be due and payable immediately.
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If an Event of Default with respect to Securities of any series at the time outstanding specified in Section 7.01(g) or Section 7.01(h)
with respect to the Company occurs and is continuing, the principal of (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series), premium, if
any, and accrued and unpaid interest on all of the Securities of such series shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by notice to the Trustee may waive all defaults with respect to such Securities and rescind and annul such declaration
and its consequences and rescind an acceleration and its consequences if all existing Events of Default with respect to Securities of such series have been cured or waived except nonpayment of principal of, premium, if any, or interest on such
Securities that has become due solely because of such acceleration. No such waiver and rescission shall affect any subsequent default or impair any right consequent thereon.
Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any installment of interest on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days,
(b) default is made in the payment of all or any part of the principal of (or premium, if any, on) any Security of any series at the Maturity thereof, or
(c) default is made in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due pursuant to the terms of the Securities of any series established as contemplated
by Section 3.01,
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holder of any such Security (or Holders of Securities of any such series in the case of clause (c) above), the whole amount then due and payable on any such
Security (or Securities of any such series in the case of clause (c) above) for principal, premium, if any, and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installment of interest, at the Overdue Rate of any such Security (or Securities of any such series in the case of clause (c) above); and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and all other amounts owing the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid,
and may prosecute such proceeding to judgment or final decrees, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever situated.
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If an Event of Default occurs and is continuing with respect to the Securities of any series, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities of
such series by such appropriate judicial proceedings as such Trustee shall deem necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 7.04. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of any Securities of any series allowed in any judicial proceedings relative
to the Company, its creditors or any other obligor upon the Securities, or any of their creditors or the property of the Company or such other obligor or their creditors and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders of any Securities of any series in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder of any Securities of any series
to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of any Securities of any series, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 8.07.
Section 7.05. Trustee May Enforce Claims without Possession of Securities. All rights of action and claims under this Indenture or the Securities of any series may be
prosecuted and enforced by the Trustee without the possession of any of the Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
Section 7.06. Application of Money Collected. Any money or other property collected by the Trustee pursuant to Article Seven hereof, or any money or other property
otherwise distributable in respect of the Company’s obligations under this Indenture, shall be applied in the following order:
FIRST: to the Trustee (including any predecessor Trustee) for amounts due under Section 8.07 hereof;
SECOND: to Holders of any Securities of any series for amounts due and unpaid on such Securities for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and
THIRD: to the Company.
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The Trustee may, upon prior written notice to the Company, fix a record date and payment date for any payment to Holders of any Securities of any series pursuant to this Section 7.06. At least 15 days before such record
date, the Company shall mail or electronically deliver to each such Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 7.07. Limitation on Suits. A Holder of any Security of any series may not pursue any remedy with respect to this Indenture or such Security unless:
(a) an Event of Default shall have occurred and be continuing and such Holder gives to the Trustee prior written notice stating that an Event of Default with respect to the Securities of such series is
continuing;
(b) the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series shall make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee security or indemnity satisfactory to it against any costs, liabilities or expenses in compliance with such request;
(d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series do not give the Trustee a direction inconsistent with the request during such 60-day period.
A Holder of a Security of such series may not use this Indenture to prejudice the rights of another Holder of a Security of such series or to obtain a preference or priority over another Holder of a Security of such series.
Section 7.08. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision of this Indenture, the right of any Holder of
a Security of any series to receive payment of principal of, premium, if any, and interest on the Securities of such series held by such Holder, on or after the respective due dates expressed or provided for in the Securities of such series, or to
bring 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.
Section 7.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holder shall continue as though no such proceeding had been instituted.
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Section 7.10. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Trustee or to the Holders of the Securities of any series is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 7.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of the Holders of the Securities of any series to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Seven or by law to the Trustee or to such Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holders, as the case may be.
Section 7.12. Control by Holders. Upon provision of security or indemnity satisfactory to the Trustee, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee with respect to such Securities or of exercising any trust or power conferred on the Trustee. However,
the Trustee, which may conclusively rely on opinions of counsel, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of other Holders of Securities of such
series or would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not any actions or forbearances taken or suffered in accordance with such direction are unduly prejudicial to Holders of
such Securities of such series not joining in such direction).
Section 7.13. Waiver of Past Defaults. The Holders of no less than a majority in aggregate principal amount of the Outstanding Securities of any series by notice to the
Trustee may, on behalf of the Holders of such Outstanding Securities, waive any past or existing default or Event of Default and its consequences except (1) a default or Event of Default in the payment of the principal of, premium, if any, or
interest on a Security of such series or (2) a default or Event of Default in respect of a provision that under Section 11.02 cannot be amended without the consent of each Holder of each such Outstanding Security affected. When a default or Event of
Default is waived, such default or Event of Default shall cease to exist, and any default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any consequent right.
Section 7.14. Undertaking for Costs. 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, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 7.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 7.08 or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding Securities of any series.
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Section 7.15. Waiver of Stay or Extension Laws. The Company (to the extent it may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
THE TRUSTEE
Section 8.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series and all other series, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
(ii) 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 mathematical calculations or other facts stated therein); and
(iii) 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 any direction of the Company or the Holders of any series of Outstanding
Securities in accordance with Section 7.12 of this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect to the Securities of any series, the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect
to the Securities of such series, and use the same degree of care and skill in their exercise, as a prudent man 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:
(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section 8.01;
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(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in respect of the Securities of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of such series pursuant to Section 7.12 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; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) 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 8.01.
Section 8.02. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit
electronically or by mail to all Holders of the Securities of such series, as their names and addresses appear in the Securities Register, notice of such default hereunder with respect to the Securities of such series known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of principal of (or premium, if any) or
interest, if any, on any Security of such series, or in the payment of any sinking fund installment or analogous obligation in respect thereof, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of such Holders; and provided, further, that in the case of any default of the character specified in Section 7.01(d) hereof no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of this Section 8.02, the term “default” means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
Section 8.03. Certain Rights of Trustee. Subject to Section 8.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, 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, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to such Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note 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, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry;
(g) 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 with due care by it hereunder;
(h) the Trustee shall not be deemed to have knowledge of an Event of Default unless a Responsible Officer of the Trustee shall have received actual written notification or obtained actual knowledge;
(i) delivery of reports, information and documents to the Trustee under Section 9.04 is for informational purposes only and
the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers’ Certificates);
(j) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether
the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(k) the rights, privileges, protections, immunities and benefits given to the Trustee pursuant to this Indenture, 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;
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(l) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; and
(m) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
Section 8.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the certificates of authentication, shall
be taken as the statements of the Company, and the Trustee and any Authenticating Agent assume no responsibility for their correctness. The Trustee and any Authenticating Agent make no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee and any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 8.05. May Hold Securities. The Trustee, any Paying Agent, Securities Registrar, Authenticating Agent or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities of any series and may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Securities Registrar, Authenticating Agent
or such other agent.
Section 8.06. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received by it hereunder except as otherwise agreed in writing with the Company and for the sole benefit of the Company.
Section 8.07. Compensation and Reimbursement. The Company and the Subsidiary Guarantors, jointly and severally, agree:
(a) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of any Authenticating Agent), except to the extent any such expense, disbursement or advance shall have been caused by
its negligence, bad faith or willful misconduct; and
(c) to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any loss, claim, damage, liability or expense (whether brought by the Company, Guarantor,
any Holder, or any third-party) arising out of or in connection with the acceptance or administration of this trust and performance of their duties hereunder, including without limitation, enforcing the terms of this Indenture and the
indemnifications provided herein, including the costs and expenses, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), and including fees and disbursements of their counsel of defending themselves
against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except as to the Trustee or any agent to the extent any such loss, liability or expense shall have been caused by its own
negligence, bad faith or willful misconduct.
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As security for the performance of the obligations of the Company under this Section 8.07, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on particular Securities. The provisions of this Section 8.07 shall survive any Trustee succession, resignation or removal, and the satisfaction and discharge of this Indenture. “Trustee” for purposes of this Section 8.07 shall include any predecessor trustee but the negligence, bad faith or willful misconduct of any Trustee shall not affect the rights of any other Trustee
under this Section 8.07.
When the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h), the expenses (including the reasonable charges and expenses of counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 8.08. Disqualification; Conflicting Interests. To the extent that the Trust Indenture Act applies to this Indenture or any Securities, if the Trustee has or will
acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by the Trust Indenture Act, if applicable, the Trustee will not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series if all
such series rank equally at the time of issuance.
Section 8.09. Corporate Trustee Required; Different Trustees for Different Series; Eligibility. There shall at all times be a Trustee hereunder for the Securities of each
series which shall be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority, and, if there is such a corporation that has a corporate trust office in the Borough of Manhattan, The City of New York, the State of New York, or
in such other city as shall be established as contemplated by Section 3.01 with respect to the Securities of any series that is willing to act upon reasonable and
customary terms, having a corporate trust office in the Borough of Manhattan or such other city. 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 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. A different Trustee may be appointed by the Company for the Securities of each series prior to the issuance of such Securities. If the initial Trustee for the Securities of any series
is to be other than U.S. Bank Trust Company, National Association, the Company and such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such
Trustee as Trustee for the Securities of such series 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. If at any time the Trustee for the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 8.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Eight.
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Section 8.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee for the Securities of such series pursuant to this Article Eight shall become effective
until the acceptance of appointment by the successor Trustee under Section 8.11 hereof.
(b) The Trustee, or any Trustee or Trustees hereafter appointed for the Securities of any series, may resign at any time with respect to the Securities of one or more or all such series by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee for the Securities of any series shall not have been delivered to the Trustee for the Securities of such series within thirty days after the giving of such notice of
resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee for the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with respect to one or more or all such series by Act of the Holders of a majority in aggregate principal amount of the Outstanding
Securities of such one or more series (each voting as a class) delivered to such Trustee and to the Company. If an instrument of acceptance by a successor Trustee for the Securities of any series shall not have been delivered to the Trustee for the
Securities of such series within thirty days after the giving of such notice of removal, the Trustee to be removed may petition at the expense of the Company any court of the competent jurisdiction for the appointment of a successor Trustee for the
Securities of such series.
(d) If at any time:
(i) the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act with respect to the Securities of such series after written request therefor by the Company or
by any Holder of Securities of such series who has been a bona fide Holder of a Security of such series for at least six months, or
(ii) such Trustee shall cease to be eligible under Section 8.09 hereof and shall fail to resign after written request therefor
by the Company or by any such Holder of Securities, or
(iii) such Trustee shall become incapable of acting with respect to the Securities of such series or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed
or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such ease, (A) the Company by a Board Resolution may remove the Trustee, or
(B) subject to Section 7.14 hereof, any Holder of a Security of such series who has been a bona fide Holder of such Security 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 such Trustee and the appointment of a successor Trustee for the Securities of such series.
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(e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee for the Securities of such series. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee for the
Securities of such series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee for the Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee for the Securities of such series shall have been so
appointed by the Company or such Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor Trustee for the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee for the Securities of any series and each appointment of a successor Trustee for the Securities of such series by delivering
written notice of such event electronically or by first-class mail, postage prepaid, to the Holders of the Securities of such series as their names and addresses appear in the Securities Register. Each notice shall include the name of such successor
Trustee and the address of its Corporate Trust Office.
Section 8.11. Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in
Section 8.07 hereof. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee for the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee for 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 for 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.
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No successor Trustee for the Securities of any series shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified under Section 310(b) of the Trust Indenture Act and
eligible under Section 8.09.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee for the Securities of any series may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust
business of such Trustee, shall be the successor of the Trustee for such series hereunder, provided such corporation shall be, with respect to such series, otherwise qualified and eligible under this Article Eight, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case any Securities of any series shall have been authenticated, but not delivered, by the Trustee for such series or an Authenticating Agent for such series, then in office,
any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor
Trustee or successor Authenticating Agent had itself authenticated such Securities.
Section 8.13. Preferential Collection of Claims against Company. Reference is made to Section 311 of the Trust Indenture Act, for purposes of which:
(a) The term “cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(b) The term “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 8.14. Authenticating Agent. The Trustee may appoint an Authenticating Agent for the Securities of each series which shall be acceptable to the Company, to act on
behalf of such Trustee and subject to its direction in connection with the authentication of the Securities of such series. Each Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.14 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
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Securities of any series authenticated by the Authenticating Agent for the Securities of such series shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee for the Securities of such series. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or such Trustee’s certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of the Trustee by the Authenticating Agent for the Securities of such series and a certificate of authentication executed on behalf of the Trustee by such Authenticating
Agent.
Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to the Securities of all series for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent for the Securities
of any series by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 8.14, with respect to the Securities of one or more or all series, the Trustee promptly shall appoint a successor
Authenticating Agent which shall be acceptable to the Company, and upon doing so shall give written notice of such appointment to the Company and shall mail notice of such appointment to all Holders of the Securities of such series as the names and
addresses of such Holders appear upon the Securities Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder
with like effect as if originally appointed as Authenticating Agent hereunder. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 8.14.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments subject to the provisions of Section 8.07 hereof.
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ARTICLE NINE
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 9.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee (a) semi-annually, on a date not
more than 15 days after each regular record date with respect to an Interest Payment Date, if any, for the Securities of each series, and (b) on semi-annual dates in each year to be established as contemplated by Section 3.01 hereof if the Securities of any series do not bear interest and (c) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, as to the names and addresses of the Holders of the Securities of such series,
obtained since the date as of which the next previous list, if any, was furnished. Any such list may be dated as of a date not more than 15 days prior to the time such information is furnished or caused to be furnished and need not include
information received after such date; provided, however, that as long as the Trustee is the Securities Registrar for the Securities of such series, no such list shall
be required to be furnished.
Section 9.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of each series contained in the most recent list furnished to such Trustee
as provided in Section 9.01 hereof or in the Securities Register if such Trustee be the Securities Registrar for such series and the names and addresses of Holders received by the Trustee in its capacity as Paying Agent for the Securities of such
series. The Trustee may destroy any list furnished to it as provided in Section 9.01 hereof upon receipt of a new list so furnished.
(b) To the extent that the Trust Indenture Act applies to this Indenture or any Securities, the rights of the Holders to communicate with other Holders of Securities of the same series or of all series with
respect to their rights under this Indenture or under the Securities of such series or of all series, as the case may be, and the corresponding rights and privileges of the Trustee, will be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them will be held accountable by
reason of the disclosure of any such information as to the names and addresses of the Holders made pursuant to the Trust Indenture Act.
Section 9.03. Reports by Trustee. As promptly as practicable after each January 15 beginning with the January 15 following the date of this Indenture, and in any event
prior to March 15 in each year, the Trustee shall mail or electronically deliver to each Holder of any Outstanding Securities of any series a brief report dated as of such January 15 that complies with Section 313(a) of the Trust Indenture Act if
required by such Section 313(a). The Trustee also shall comply with Section 313(b) of the Trust Indenture Act. The Trustee shall promptly deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 9.03. A copy of
each report at the time of its mailing or electronic delivery to Holders of any Outstanding Securities of any series shall be filed by the Trustee with the SEC and each stock exchange (if any) on which such Outstanding Securities are listed. The
Company agrees to notify promptly the Trustee in writing whenever any Outstanding Securities of any series become listed on any stock exchange and of any delisting thereof.
Section 9.04. Reports by Company. The Company shall comply with all the applicable provisions of Section 314(a) of the Trust Indenture Act. Delivery of such information,
documents or reports to the Trustee pursuant to such provisions is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on the Officers’ Certificate).
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ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 10.01. When the Company or a Subsidiary Guarantor May Merge or Transfer Assets. Neither the Company nor any Subsidiary Guarantor may consolidate with or sell, lease
or convey all or substantially all of its properties or assets to, or merge with or into, in one transaction or a series of related transactions, any other Person, unless:
(a) the Company, or in the case of a Subsidiary Guarantor, such Subsidiary Guarantor, shall be the continuing Person, or the successor Person formed by or resulting from such consolidation or merger or the
Person which receives the transfer of such properties or assets (the “Successor”) shall be a Person organized and existing under the laws of the United States of America or any State or jurisdiction thereof
and the Successor (if not the Company or such Subsidiary Guarantor, as the case may be) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of
the Company or such Subsidiary Guarantor, as the case may be, under the Securities, this Indenture and any Guarantee, as applicable (provided that such Successor shall not be required to assume the obligations
of any such Subsidiary Guarantor if (I) such Successor is already a Subsidiary Guarantor or (II) such Successor would not, after giving effect to such transaction, be required to guarantee the Securities of such series under the provisions of
Article Thirteen);
(b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale or lease and such supplemental indenture (if
any) comply with clauses (a) and (b) above.
Section 10.02. Successor Corporation Substituted. The Successor will succeed to, and be substituted for, and may exercise every right and power of, the Company or such
Subsidiary Guarantor under this Indenture. The Company or such Subsidiary Guarantor shall be relieved of all obligations and covenants under the Securities, the Guarantees, if any, and this Indenture to the extent the Company or such Subsidiary
Guarantor was the predecessor Person; provided that in the case of a lease of all or substantially all of the Company’s properties or assets, the Company will not be released from the obligation to pay the
principal of, premium, if any, and interest on the Securities. Notwithstanding any provision to the contrary, the restrictions contained in this Article Ten shall not apply to any merger or consolidation of a Subsidiary Guarantor into, or any sale,
lease or conveyance of assets by a Subsidiary Guarantor to, the Company or any other Subsidiary Guarantor or to any Subsidiary Guarantor upon any termination of the Guarantee of that Subsidiary Guarantor in accordance with this Indenture.
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ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures without Consent of Holders. Without notice to or the consent of any Holders, the Company and the Trustee at any time and from time to
time may enter into one or more indentures supplemental hereto for any of the following purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to evidence the succession of another Person to the Company or any Subsidiary Guarantor, and the assumption by any such Person of the obligations of the Company or such Subsidiary Guarantor herein and in the
Securities contained, in each case, in accordance with the provisions of Article Ten;
(c) to add any additional Events of Default;
(d) to add to the covenants of the Company or any Subsidiary Guarantor, for the benefit of the Holders of the Securities of any or all series or to surrender any right or power herein conferred upon the Company
or any Subsidiary Guarantor;
(e) to establish the form and terms of the Securities of any series as contemplated by Section 2.01 or 3.01 hereof;
(f) to add to or change any of the provisions of this Indenture as is necessary or advisable to facilitate the issuance of Securities of any series in bearer form, registrable or nonregistrable as to principal
and with or without interest coupons, and to provide for exchangeability of such Securities with the Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose, or to permit or
facilitate the issuance of Securities in uncertificated form;
(g) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than U.S. Bank Trust Company, National Association, as Trustee for the Securities of any series of Securities and to add
to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.09 hereof;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11
hereof;
(i) to add to, change or eliminate any of the provisions of this Indenture; provided, that any such addition, change or elimination (i) shall become effective only when
no Security of any series entitled to the benefits of such provision and issued prior to the execution of such supplemental indenture is outstanding or (ii) shall not apply to any outstanding Security;
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(j) to add one or more guarantees for the benefit of the Holders;
(k) to evidence the release of any Subsidiary Guarantor from its Guarantee in accordance with this Indenture;
(l) to add collateral security with respect to the Securities of any series or any Guarantee;
(m) to comply with any requirements in connection with qualifying this Indenture under the Trust Indenture Act;
(n) to comply with the rules of any applicable securities depository;
(o) to provide for uncertificated Securities in addition to or in place of certificated Securities; provided, however, that the
uncertificated Securities issued in registered form for purposes of Section 163(f) of the Code;
(p) to conform the text of this Indenture, any supplemental indenture or the Securities of any series to the “Description of Notes” applicable to such series of Securities; or
(q) to make any change if the change does not adversely affect in any material respect the interests of any Holder.
After an amendment under this Section 11.01 becomes effective, the Company shall mail or electronically deliver to Holders a notice
briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 11.01.
Section 11.02. Supplemental Indentures with Consent of Holders.
Subject to Sections 7.12 and 7.13 hereof, with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of each series affected thereby (including consents
obtained in connection with a tender offer or exchange for such Securities), by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the interest thereon, or the premium, if any, payable on the
redemption thereof, or change the Place of Payment, or the coin or currency in which any Security or the interest, if any, thereon is payable, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the Maturity thereof or adversely affect the right of repayment, if any, at the option of the Holder, or reduce the amount of, or postpone the date fixed for, any payment under the sinking fund for any Security, or impair the
right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
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(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or
(c) modify any of the provisions of this Section 11.02 or Section 7.13 hereof, 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 Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has been expressly included solely for the benefit of the Securities of one or more particular series, or which
modifies the rights of the Holders of the Securities of one or more 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 the Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 11.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Eleven
or the modifications thereby of the trusts created by this Indenture, the Trustee for the Securities of any series shall be provided with, and (subject to Sections 8.01 and 8.03 hereof) shall be fully protected in relying upon (in addition to the
requirements under Section 1.02), an Opinion of Counsel and an Officers’ Certificate each stating that the execution of such supplemental indenture complies with the provisions of this Article Eleven and that such supplemental is the legal, valid and
binding obligation of the Company in accordance with its terms subject to customary exceptions. Such Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
Section 11.04. Notice of Supplemental Indenture. After the execution by the Company and the appropriate Trustee of any supplemental indenture pursuant to Section 11.02 hereof, the Company shall transmit to all Holders of Securities of any series affected thereby, as their names and addresses appear in the Securities
Register, a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 11.05. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article Eleven, this indenture shall be modified in accordance
therewith but only with respect to the Securities of each series affected by such supplemental indenture, and such supplemental indenture shall form a part of this Indenture for all purposes with respect to the Securities of such series; and every
Holder of Securities of any such series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
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Section 11.06. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Eleven shall conform to the requirements of the Trust
Indenture Act as then in effect.
Section 11.07. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Eleven may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as
to conform to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by or on behalf of such Trustee in exchange for Outstanding Securities of the same series.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest. The Company will duly and punctually pay the principal of, premium, if any, and interest, if any, on the
Securities of each series in accordance with the terms of such Securities established as contemplated by Section 3.01 and this Indenture.
Section 12.02. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for the Securities of any series, an office or agency where Securities of
such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and
this Indenture may be served; provided, however, that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register. With respect to the Securities of any series, such office or agency and each Place of Payment shall be as established as contemplated by Section 3.01. In the absence of establishment as contemplated by Section 3.01 with
respect to the Securities of any series, (i) the Place of Payment for such Securities shall be in the city that the Corporate Trust Office shall be in and (ii) such office or agency in such Place of Payment shall initially be the Corporate Trust
Office of the Trustee. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee for the Securities of each series with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and demands with respect to the Securities of such series.
The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of
such purposes specified above, 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 obligation to maintain an office or agency in each Place of Payment for such purpose.
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Section 12.03. Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on, any of the Securities of any series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest, if any,
so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of such series of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on, any Securities of any series, deposit with a Paying Agent
for the Securities of such series a sum sufficient to pay the principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, if any, and
(unless such Paying Agent is the Trustee for the Securities of such series) the Company will promptly notify such Trustee at its Corporate Trust Office of its failure so to act.
The Company will cause each Paying Agent for the Securities of any series other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 12.03, that such Paying Agent will
(a) hold all sums held by it for the payment of the principal of, premium, if any, or interest, if any, on the Securities of such series in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give such Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal, premium, if any, or interest, if any; and
(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such
Paying Agent shall be released from all further liability with respect to such money.
Section 12.04. Compliance Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date
hereof, an Officers’ Certificate signed by its principal executive officer, principal financial officer or principal accounting officer, which Officers’ Certificate shall comply with the provisions of Section 314 of the Trust Indenture Act, stating
whether or not to the knowledge of the signers thereof any Default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
occurred during the previous fiscal year, specifying all such Defaults and the nature and status thereof of which they may have knowledge.
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Section 12.05. Corporate Existence. Except as otherwise permitted by Article Ten, the Company shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a corporation or other Person.
Section 12.06. Permit No Vacancy in Office of Trustee. The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee for the Securities of any
series, will appoint, in the manner provided in Section 8.10 hereof, a Trustee for the Securities of such series, so that there shall at all times be a Trustee for
the Securities of every series hereunder.
Section 12.07. Waiver. Without limitation of the rights of the Holders and the Company with respect to waivers and amendments set forth in Sections 7.13 and 11.02, the
Company may omit in any particular instance to comply with a covenant or provision hereof which non-compliance could constitute a default hereunder (other than (i) a covenant or provision with respect to the payment of the principal of (or premium,
if any) or interest, if any, on any Security of any series, or in payment of any sinking fund installment or analogous obligation with respect to the Securities of such series or (ii) a covenant or provision which under Article Eleven hereof cannot
be modified or amended without the consent of the Holder of each Outstanding Security affected thereby), if before or after the time for such compliance the Holders of at least a majority in principal amount of the Securities at the time Outstanding
of any series affected by the omission shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or provision, but no such waiver shall extend to or affect such covenant or provision
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or provision shall remain in full force and effect.
ARTICLE THIRTEEN
GUARANTEES
Section 13.01. Guarantees. If Securities of or within a series are specified, as contemplated by Section 3.01, to be guaranteed by any Subsidiary Guarantor, then such Subsidiary Guarantor hereby fully unconditionally and irrevocably guarantees, jointly and severally, as primary obligor and not merely as surety, to each Holder of
any such Security and to the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of (and premium, if any) and interest, if any, on any such Security and all other
obligations of the Company under this Indenture and any such Security (the “Obligations”) to the Trustee and to the Holders. Each of the Subsidiary Guarantors further agrees (to the extent permitted by law)
that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article Thirteen notwithstanding any extension or renewal of any Obligation.
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Each of the Subsidiary Guarantors waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. Each of the Subsidiary Guarantors
waives notice of any default under any such Security or the Obligations. The obligations of each of the Subsidiary Guarantors hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under this Indenture, any such Security or any other agreement or otherwise, (b) any extension or renewal of any thereof, (c) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement, (d) the release of any security held by any Holder of any such Security or the Trustee for the Obligations or any of them or (e) any change in the ownership of the Company.
Each of the Subsidiary Guarantors further agrees that its Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any
Holder of any such Security to any security held for payment of the Obligations.
The obligations of each of the Subsidiary Guarantors hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any
claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of each of the Subsidiary Guarantors herein shall not be discharged or impaired or otherwise affected by the failure of any Holder of any such Security to assert any claim
or demand or to enforce any remedy under this Indenture, any such Security or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each of the Subsidiary Guarantors or would otherwise operate as a discharge of the Subsidiary Guarantors as a
matter of law or equity.
Each of the Subsidiary Guarantors further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if
any, or interest, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder of any such Security upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder of any such Security has at law or in equity against any of the Subsidiary Guarantors by virtue hereof, upon the failure of the
Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each of the Subsidiary Guarantors hereby promises to and shall, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders of any such Security an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and
owing (but only to the extent not prohibited by law).
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Each of the Subsidiary Guarantors further agrees that, as between itself, on the one hand, and the Holders of any such Security, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated
as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (y) in the event of any such
declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Guarantee.
Each of the Subsidiary Guarantors also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 13.01.
Section 13.02. No Subrogation. Notwithstanding any payment or payments made by any Subsidiary Guarantor hereunder, no Subsidiary Guarantor shall be entitled to be subrogated
to any of the rights of the Trustee or any Holder of any such Security against the Company or any collateral security or guarantee or right of offset held by the Trustee or any Holder of any such Security for the payment of the Obligations, nor shall
any of the Subsidiary Guarantors seek or be entitled to seek any contribution or reimbursement from the Company or any other Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor hereunder, until all amounts owing to the
Trustee and the Holders of any such Security by the Company on account of the Obligations are paid in full. If any amount shall be paid to any of the Subsidiary Guarantors on account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by such Subsidiary Guarantor in trust for the Trustee and the Holders of any such Security, segregated from other funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by
such Subsidiary Guarantor, be turned over to the Trustee in the exact form received by such Subsidiary Guarantor (duly indorsed by such Subsidiary Guarantor to the Trustee, if required), to be applied against the Obligations.
Section 13.03. Consideration. Each of the Subsidiary Guarantors has received, or shall receive, direct or indirect benefits from the making of its Guarantee.
Section 13.04. Limitation on Subsidiary Guarantor Liability. Each Subsidiary Guarantor, and by its acceptance of Securities, each Holder of any such Security, hereby
confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of any such Security and the Subsidiary Guarantors hereby irrevocably agree that the
obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and
after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Guarantor under this Article Thirteen, result in the
obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Subsidiary Guarantor that makes a payment under its Guarantee shall be entitled upon payment in
full of all guaranteed obligations under this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the
Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.
57
Section 13.05. Execution and Delivery. To evidence its Guarantee set forth in Section 13.01
hereof, each Subsidiary Guarantor hereby agrees that this Indenture (or a supplemental indenture, as the case may be) shall be executed on behalf of such Subsidiary Guarantor by one of its Officers, managers, its trustee, its managing member or its
general partner, as the case may be.
Each Subsidiary Guarantor hereby agrees that its Guarantee set forth in Section 13.01 hereof shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such Guarantee on the any such Security.
If an Officer, manager, trustee, managing member or general partner of a Subsidiary Guarantor whose signature is on this Indenture (or a supplemental indenture, as the case may be) no longer holds that office at the time
the Trustee authenticates any such Security, the Guarantee shall be valid nevertheless.
The delivery of any such Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.
Section 13.06. Release of Subsidiary Guarantors. A Subsidiary Guarantor will be automatically released from all its obligations under the Securities, this Indenture and its
Guarantee, and its Guarantee will automatically terminate (1) [Reserved], (2) upon the exercise of the legal defeasance option or the covenant defeasance option pursuant to Section 6.01(b), or upon satisfaction and discharge of this Indenture pursuant Section 6.01(a) and (3) upon the consummation of any sale or other disposition of any or all of the Capital Stock of such Subsidiary Guarantor (including by way
of merger or consolidation) or other transaction such that after giving effect to such sale, disposition or other transaction such Subsidiary Guarantor is no longer a Domestic Subsidiary of the Company. Upon request of the Company, the Trustee shall
evidence such release by a supplemental indenture or other instrument which may be executed by the Trustee without the consent of any Holder.
58
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
|
EXPEDIA GROUP, INC.,
|
|||
|
as the Company
|
|||
|
CRUISE, LLC
|
|||
|
EAN.COM, LP
|
|||
|
EXPEDIA GROUP COMMERCE, INC.
|
|||
|
EXPEDIA, INC.
|
|||
|
HIGHER POWER NUTRITION COMMON HOLDINGS, LLC
|
|||
|
HOMEAWAY SOFTWARE, INC.
|
|||
|
HOMEAWAY.COM, INC.
|
|||
|
HOTELS.COM GP, LLC
|
|||
|
HOTELS.COM, L.P.
|
|||
|
HOTWIRE, INC.
|
|||
|
HRN 99 HOLDINGS, LLC
|
|||
|
LEMS I LLC
|
|||
|
LIBERTY PROTEIN, INC.
|
|||
|
O HOLDINGS INC.
|
|||
|
ORBITZ, LLC
|
|||
|
ORBITZ WORLDWIDE, INC.
|
|||
|
TRAVELSCAPE, LLC
|
|||
|
VRBO HOLDINGS, INC.
|
|||
|
WWTE, INC.,
|
|||
|
as Subsidiary Guarantors
|
|||
|
By:
|
|||
|
Title:
|
|||
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
|
|||
|
as Trustee
|
|||
|
By:
|
|||
|
Title:
|
|||
[Signature Page to Indenture]
Exhibit 5.1
|
|||||
|
MARTIN LIPTON
HERBERT M. WACHTELL
EDWARD D. HERLIHY
DANIEL A. NEFF
STEVEN A. ROSENBLUM
SCOTT K. CHARLES
JODI J. SCHWARTZ
ADAM O. EMMERICH
RALPH M. LEVENE
ROBIN PANOVKA
DAVID A. KATZ
ILENE KNABLE GOTTS
ANDREW J. NUSSBAUM
RACHELLE SILVERBERG
STEVEN A. COHEN
DEBORAH L. PAUL
DAVID C. KARP
RICHARD K. KIM
JOSHUA R. CAMMAKER
MARK GORDON
JEANNEMARIE O’BRIEN
|
STEPHEN R. DiPRIMA
NICHOLAS G. DEMMO
IGOR KIRMAN
JONATHAN M. MOSES
T. EIKO STANGE
WILLIAM SAVITT
GREGORY E. OSTLING
DAVID B. ANDERS
ADAM J. SHAPIRO
NELSON O. FITTS
JOSHUA M. HOLMES
DAVID E. SHAPIRO
DAMIAN G. DIDDEN
IAN BOCZKO
MATTHEW M. GUEST
DAVID E. KAHAN
DAVID K. LAM
BENJAMIN M. ROTH
JOSHUA A. FELTMAN
ELAINE P. GOLIN
EMIL A. KLEINHAUS
|
51 WEST 52ND STREET
NEW YORK, N.Y. 10019-6150
TELEPHONE: (212) 403-1000
FACSIMILE: (212) 403-2000
|
KARESSA L. CAIN
RONALD C. CHEN
BRADLEY R. WILSON
GRAHAM W. MELI
GREGORY E. PESSIN
CARRIE M. REILLY
MARK F. VEBLEN
SARAH K. EDDY
VICTOR GOLDFELD
RANDALL W. JACKSON
BRANDON C. PRICE
KEVIN S. SCHWARTZ
MICHAEL S. BENN
ALISON Z. PREISS
TIJANA J. DVORNIC
JENNA E. LEVINE
RYAN A. McLEOD
ANITHA REDDY
JOHN L. ROBINSON
STEVEN WINTER
EMILY D. JOHNSON
|
JACOB A. KLING
RAAJ S. NARAYAN
VIKTOR SAPEZHNIKOV
MICHAEL J. SCHOBEL
ELINA TETELBAUM
ERICA E. AHO
LAUREN M. KOFKE
ZACHARY S. PODOLSKY
RACHEL B. REISBERG
MARK A. STAGLIANO
CYNTHIA FERNANDEZ LUMERMANN
CHRISTINA C. MA
NOAH B. YAVITZ
BENJAMIN S. ARFA
NATHANIEL D. CULLERTON
ERIC M. FEINSTEIN
ADAM L. GOODMAN
STEVEN R. GREEN
MENG LU
|
|
|
GEORGE A. KATZ (1965–1989)
JAMES H. FOGELSON (1967–1991)
LEONARD M. ROSEN (1965–2014)
OF COUNSEL
|
|||||
|
ANDREW R. BROWNSTEIN
WAYNE M. CARLIN
BEN M. GERMANA
SELWYN B. GOLDBERG
PETER C. HEIN
JB KELLY
JOSEPH D. LARSON
RICHARD G. MASON
PHILIP MINDLIN
THEODORE N. MIRVIS
DAVID S. NEILL
TREVOR S. NORWITZ
|
ERIC S. ROBINSON
ERIC M. ROSOF
JOHN F. SAVARESE
MICHAEL J. SEGAL
WON S. SHIN
DAVID M. SILK
ELLIOTT V. STEIN
LEO E. STRINE, JR.*
PAUL VIZCARRONDO, JR.
JEFFREY M. WINTNER
AMY R. WOLF
MARC WOLINSKY
|
||||
|
* ADMITTED IN DELAWARE
COUNSEL
|
|||||
|
DAVID M. ADLERSTEIN
SUMITA AHUJA
HEATHER D. CASTEEL
FRANCO CASTELLI
ANDREW J.H. CHEUNG
PAMELA EHRENKRANZ
ALINE R. FLODR
KATHRYN GETTLES-ATWA
LEDINA GOCAJ
ADAM M. GOGOLAK
|
ANGELA K. HERRING
MICHAEL W. HOLT
DONGHWA KIM
MARK A. KOENIG
J. AUSTIN LYONS
ALICIA C. McCARTHY
JUSTIN R. ORR
NEIL M. SNYDER
JEFFREY A. WATIKER
|
||||
February 19, 2025
Expedia Group, Inc.
1111 Expedia Group Way W.
Seattle, Washington 98119
Re:
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special outside counsel to Expedia Group, Inc., a Delaware corporation (the “Company”), and each of the Company’s subsidiaries listed in the Registration Statement on Form S-3 as a subsidiary guarantor (the “Subsidiary Guarantors”, and such statement, the “Registration Statement”) in connection with such Registration
Statement, to be filed on the date hereof with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (including the
rules and regulations thereunder, the “Act”), that is automatically effective under the Act pursuant to Rule 462(e) promulgated thereunder and relates to an
indeterminate amount of (a) debt securities issued by the Company (the “Company Debt Securities”) and (b) guarantees by the Subsidiary Guarantors of the
Company Debt Securities (the “Guarantees”). The Debt Securities and the Guarantees are collectively referred to herein as the “Securities.”
|
February 19, 2025
Page 2
|
The Company Debt Securities are to be issued in one or more series under one or more indentures (collectively, the “Indenture”) between the Company, the Subsidiary Guarantors as guarantors and U.S. Bank Trust Company, National Association (the “Trustee”), filed as Exhibit 4.1 to the Registration Statement, as supplemented by supplemental indentures among the Company, Subsidiary Guarantors and the Trustee (as so supplemented,
collectively, the “Company Indenture”).
The prospectus that is part of the Registration Statement as supplemented in the future by various supplements to the prospectus (each, a
“Prospectus Supplement”) will provide for the issuance and sale by the Company or Subsidiary Guarantors, as applicable, of the Securities, which may be
offered pursuant to Rule 415 under the Act.
We have examined and relied on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate
records, certificates of the Company and Subsidiary Guarantors or public officials and other instruments as we have deemed necessary or appropriate for the purposes of this opinion letter. In such examination, we have assumed (a) the authenticity
of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; (c) the truth, accuracy and completeness of the information, representations and warranties contained in
the agreements, records, documents, instruments and certificates we have reviewed; (d) that the Registration Statement is effective under the Act, and the Company Indenture has been qualified under the Trust Indenture Act of 1939, as amended; (e)
an appropriate Prospectus Supplement and term sheet, if applicable, will have been filed with the SEC describing the Securities offered thereby; (f) all Securities will be issued and sold in compliance with applicable U.S. federal and state and
non-U.S. securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement(s); (g) a definitive purchase, underwriting, agency or similar agreement with respect to any Securities offered will have been
duly authorized and validly executed and delivered by the parties thereto (the “Purchase Agreement”); and (h) any Debt Securities that may be issued will be
issued in a form that complies with the applicable Indenture, and any supplemental indenture to be entered into in connection with the issuance of such Debt Securities will be signed or countersigned, as the case may be, by duly authorized officers
of the Company, and of the trustee named therein and will have been duly authorized and validly executed and delivered by the parties thereto. We have assumed that the terms of the Securities will have been duly authorized and created by the
Company and the Subsidiary Guarantors, as applicable, and that the terms of the Securities will have been established so as not to, and that the execution and delivery by the parties thereto of the documents pursuant to which the Securities are
governed and the performance of such parties’ obligations thereunder will not, breach, violate, conflict with or constitute a default under (1) the organizational or governing documents of any party or any agreement or instrument to which any party
thereto is subject, (2) any law, rule or regulation to which any party thereto is subject (excepting the laws of the State of New York and the General Corporation Law of the State of Delaware (the “DGCL”) as such laws apply to the Company and/or the Subsidiary Guarantors, as applicable, and the transaction pursuant to which the Securities are offered to the extent set forth herein), (3) any judicial
or regulatory order or decree of any governmental authority, or (4) any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority. We also assume that at the time of issuance
of the Securities, the Company and the Subsidiary Guarantors, as applicable, are and will remain duly organized, validly existing and, if applicable, in good standing under the laws of their respective jurisdictions of organization, and that the
Company and Subsidiary Guarantors, as applicable, will have duly authorized the issuance of the Securities and related matters. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have
relied and will rely upon statements and representations of officers and other representatives of the Company, the Subsidiary Guarantors and others.
|
February 19, 2025
Page 3
|
We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any
jurisdiction other than the laws of the State of New York and the DGCL, in each case as in effect on the date hereof.
Based upon the foregoing, and subject to the qualifications set forth in this letter, we advise you that, in our opinion:
1. With respect to any series of Company Debt Securities to be offered by the Company pursuant to the Registration Statement, when the
terms of the Company Debt Securities and of their issuance and sale have been duly established in conformity with the Company Indenture and any supplemental indenture to be entered into in connection with the issuance of such Company Debt
Securities, the Company Debt Securities, when issued and sold in accordance with the Company Indenture, any supplemental indenture to be entered into in connection with the issuance of such Company Debt Securities and the Purchase Agreement, will
be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
2. With respect to any Guarantees to be offered by the Subsidiary Guarantors pursuant to the Registration Statement, when the terms of
the Guarantees and of their issuance and sale have been duly established in conformity with the Company Indenture and any supplemental indenture to be entered into in connection with the issuance of such Guarantees, the Guarantees, when issued and
sold in accordance with the Company Indenture, any supplemental indenture to be entered into in connection with the issuance of such Guarantees and the Purchase Agreement, will be valid and binding obligations of the Subsidiary Guarantors,
enforceable against the Subsidiary Guarantors in accordance with their respective terms.
The opinions set forth above are subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered in a proceeding in equity or at law); (c) an implied covenant of good
faith and fair dealing; (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; (e) limitations by any governmental authority that limit, delay or
prohibit the making of payments outside the United States; and (f) generally applicable laws that (1) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that
a course of performance may operate as a waiver, (2) limit the availability of a remedy under certain circumstances where another remedy has been elected, (3) limit the enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (4) may, where less than all of
a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange, (5) may limit the enforceability of provisions
providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums or penalties upon acceleration, or (6) limit the waiver of
rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how
the court involved chose to exercise the wide discretionary authority generally available to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended.
|
February 19, 2025
Page 4
|
The Company has informed us that it intends to issue the Securities from time to time on a delayed or continuous basis, and this opinion
is limited to the laws, including the rules and regulations, as in effect on the date hereof. We understand that prior to issuing any Securities, the Company will afford us an opportunity to review all operative documents pursuant to which such
Securities are to be issued (including the applicable prospectus supplement) and will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate by reason of the terms of such Securities.
We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof,
including, without limitation, the enforceability of the governing law provision contained in any Securities and their governing documents. We express no opinion as to the ability of another court, federal or state, to accept jurisdiction and/or
venue in the event the chosen court is unavailable for any reason, including, without limitation, natural disaster, act of God, human health or safety reasons (including a pandemic) or otherwise.
This letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the
Act. We hereby consent to the filing of copies of this opinion letter as an exhibit to the Registration Statement and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Legal Matters.” In
giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.
|
Very truly yours,
|
|
|
/s/ Wachtell, Lipton, Rosen & Katz
|
Exhibit 22.1
From time to time, Expedia Group, Inc. may issue debt securities guaranteed by one or more of its subsidiaries listed below.
|
Subsidiary Guarantor
|
Jurisdiction of Formation
|
|
|
Cruise, LLC
|
United States – WA
|
|
|
EAN.com, LP
|
United States – DE
|
|
|
Expedia Group Commerce, Inc.
|
United States – DE
|
|
|
Expedia, Inc.
|
United States – WA
|
|
|
Higher Power Nutrition Common Holdings, LLC
|
United States – DE
|
|
|
HomeAway Software, Inc.
|
United States – DE
|
|
|
HomeAway.com, Inc.
|
United States – DE
|
|
|
Hotels.com GP, LLC
|
United States – TX
|
|
|
Hotels.com, L.P.
|
United States – TX
|
|
|
Hotwire, Inc.
|
United States – DE
|
|
|
HRN 99 Holdings, LLC
|
United States – NY
|
|
|
LEMS I LLC
|
United States – DE
|
|
|
Liberty Protein, Inc.
|
United States – DE
|
|
|
O Holdings Inc.
|
United States – DE
|
|
|
Orbitz, LLC
|
United States – DE
|
|
|
Orbitz Worldwide, Inc.
|
United States – DE
|
|
|
Travelscape, LLC
|
United States – NV
|
|
|
VRBO Holdings, Inc.
|
United States – DE
|
|
|
WWTE, Inc.
|
United States – NV
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of Expedia Group, Inc. for the registration of debt securities and to the incorporation by reference therein of
our reports dated February 6, 2025, with respect to the consolidated financial statements of Expedia Group, Inc., and the effectiveness of internal control over financial reporting of Expedia Group, Inc., included in its Annual Report (Form 10-K)
for the year ended December 31, 2024, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Seattle, Washington
February 19, 2025
Exhibit 24.1
POWER OF ATTORNEY
(Re: Shelf Registration Statement on Form S-3)
Each director and officer of Expedia Group, Inc. (the “Corporation”) whose signature appears below, hereby names, constitutes and appoints
Ariane V. Gorin, Robert J. Dzielak and Michael S. Marron, and each of them, as his or her attorney-in-fact and agent, to sign, in his or her name, place, stead and behalf, and in any and all capacities stated below, and to cause to be filed with the
Securities and Exchange Commission, the Corporation’s Registration Statement on Form S-3 (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended, debt securities of the Corporation, and likewise to
sign and file any and all amendments, including post-effective amendments, to the Registration Statement, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney, in counterparts if necessary, effective as of February 19, 2025.
[Signature Page Follows]
|
Signature
|
Title
|
|
|
/s/ Ariane Gorin
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
Ariane Gorin
|
||
|
/s/ Scott Schenkel
|
Chief Financial Officer
(Principal Financial Officer)
|
|
|
Scott Schenkel
|
||
|
/s/ Lance Soliday
|
Senior Vice President, Chief Accounting Officer
(Principal Accounting Officer)
|
|
|
Lance Soliday
|
||
|
/s/ Barry Diller
|
Chairman of the Board, Senior Executive and Director
|
|
|
Barry Diller
|
||
|
/s/ Beverly Anderson
|
Director
|
|
|
Beverly Anderson
|
||
|
/s/ Moina Banerjee
|
Director
|
|
|
Moina Banerjee
|
||
|
/s/ Chelsea Clinton
|
Director
|
|
|
Chelsea Clinton
|
||
|
/s/ Henrique Dubugras
|
Director
|
|
|
Henrique Dubugras
|
||
|
/s/ Craig Jacobson
|
Director
|
|
|
Craig Jacobson
|
||
|
/s/ Dara Khosrowshahi
|
Director
|
|
|
Dara Khosrowshahi
|
||
|
/s/ Patricia Menendez Cambo
|
Director
|
|
|
Patricia Menendez Cambo
|
||
|
/s/ Alex von Furstenberg
|
Director
|
|
|
Alex von Furstenberg
|
||
|
/s/ Alexandr Wang
|
Director
|
|
|
Alexandr Wang
|
Exhibit 25.1
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)
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
|
800 Nicollet Mall
Minneapolis, Minnesota
|
55402
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Linda Garcia
U.S. Bank Trust Company, National Association
190 S. LaSalle Street
Chicago, IL 60603
(312) 332-6781
(Name, address and telephone number of agent for service)
EXPEDIA GROUP, INC.
(Exact name of obligor as specified in its charter)
|
Delaware
|
20-2705720
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Cruise, LLC
(Exact name of obligor as specified in its charter)
|
Washington
|
47-3225083
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
EAN.com, LP
(Exact name of obligor as specified in its charter)
|
Delaware
|
42-1612329
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Expedia Group Commerce, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
35-2650158
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Expedia, Inc.
(Exact name of obligor as specified in its charter)
|
Washington
|
91-1996083
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Higher Power Nutrition Common Holdings, LLC
(Exact name of obligor as specified in its charter)
|
Delaware
|
20-5112832
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
HomeAway Software, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
27-3481581
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
HomeAway.com, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
20-2208029
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Hotels.com GP, LLC
(Exact name of obligor as specified in its charter)
|
Texas
|
75-2942059
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Hotels.com, L.P.
(Exact name of obligor as specified in its charter)
|
Texas
|
75-2942061
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Hotwire, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
74-2938016
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
HRN 99 Holdings, LLC
(Exact name of obligor as specified in its charter)
|
New York
|
13-4179783
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
LEMS I LLC
(Exact name of obligor as specified in its charter)
|
Delaware
|
84-2926169
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Liberty Protein, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
26-1632511
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
O Holdings Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
61-1463518
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Orbitz, LLC
(Exact name of obligor as specified in its charter)
|
Delaware
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36-4349713
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Orbitz Worldwide, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
26-0331198
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
Travelscape, LLC
(Exact name of obligor as specified in its charter)
|
Nevada
|
88-0392667
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
VRBO Holdings, Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
81-1215345
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
WWTE, Inc.
(Exact name of obligor as specified in its charter)
|
Nevada
|
20-3014378
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
|
1111 Expedia Group Way W
Seattle, WA
|
98119
|
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 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.
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Comptroller of the Currency
Washington, D.C.
| b) |
Whether it is authorized to exercise corporate trust powers.
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Yes
| Item 2. |
AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
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None
| Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.
|
| Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of
eligibility and qualification.
|
|
1.
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A copy of the Articles of Association of the Trustee, attached as Exhibit 1.
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| 2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.
|
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3.
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A copy of the authorization of the Trustee to exercise corporate trust powers, included as Exhibit 2.
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| 4. |
A copy of the existing bylaws of the Trustee, attached as Exhibit 4.
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| 5. |
A copy of each Indenture referred to in Item 4. Not applicable.
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| 6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.
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| 7. |
Report of Condition of the Trustee as of September 30, 2024, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.
|
| 8. |
Not applicable.
|
| 9. |
Not applicable.
|
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the
United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, State of Illinois on the 19th of February, 2025.
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By:
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/s/ Linda Garcia
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||
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Linda Garcia
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Vice President
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Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of
Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article
without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five
persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own
common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a
director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum
permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the
expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full
board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any
board action, and shall not be required to own qualifying shares.
- 1 -
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other
business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday
in the state in which the Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60
days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the
meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be
cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by
him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a
failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or
her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of
the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or
hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time
determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the
Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning
a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
- 2 -
Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or
otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated,
which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of
securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its
members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the
Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in
accordance with the Bylaws.
The board of directors shall have the power to:
| (1) |
Define the duties of the officers, employees, and agents of the Association.
|
| (2) |
Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association.
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| (3) |
Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law.
|
| (4) |
Dismiss officers and employees.
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| (5) |
Require bonds from officers and employees and to fix the penalty thereof.
|
| (6) |
Ratify written policies authorized by the Association’s management or committees of the board.
|
| (7) |
Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with
law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital.
|
- 3 -
| (8) |
Manage and administer the business and affairs of the Association.
|
| (9) |
Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association.
|
| (10) |
Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders.
|
| (11) |
Make contracts.
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| (12) |
Generally perform all acts that are legal for a board of directors to perform.
|
SEVENTH. The board of directors shall have the power to change the location of the main office to any
authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt
of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power
to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of
the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than
25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of
every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown
upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders
by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided,
that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of
Association for submission to the shareholders.
- 4 -
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffrey T. Grubb | |
| Jeffrey T. Grubb |
|
| /s/ Robert D. Sznewajs |
|
| Robert D. Sznewajs | |
| /s/ Dwight V. Board | |
| Dwight V. Board | |
| /s/ P.K. Chatterjee | |
| P.K. Chatterjee |
|
| /s/ Robert Lane |
|
| Robert Lane |
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the
Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the
Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made
on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate
action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of
directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of
such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise
determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at
any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum,
the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in
the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate
powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation
or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by
law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has
exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the
Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and
fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when
the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each
director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be
appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for
such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or
upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose.
Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include
a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those
directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be
filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar
communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or
at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect
to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board,
provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant
fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results
of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent
permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The
Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes
related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its
activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board
may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time,
committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any
such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or
committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a
committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out
of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon
or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board.
The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have
and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the
President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all
meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of
all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these
Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to
time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board,
the Chairman, the President or such other officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred
upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier
death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to
time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a
transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each
certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to
simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations
of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged,
endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or
by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other
provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing
committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and
discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such
instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means
by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General
Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all
reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R.
§ 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil
action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to
an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and
consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting
of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all
shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to
the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: February 19, 2025
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By:
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/s/Linda Garcia
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Linda Garcia
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|||
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Vice President
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|||
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 9/30/2024
($000’s)
|
9/30/2024
|
||||
|
Assets
|
||||
|
Cash and Balances Due From Depository Institutions
|
$
|
1,551,827
|
||
|
Securities
|
4,568
|
|||
|
Federal Funds
|
0
|
|||
|
Loans & Lease Financing Receivables
|
0
|
|||
|
Fixed Assets
|
1,070
|
|||
|
Intangible Assets
|
576,760
|
|||
|
Other Assets
|
153,717
|
|||
|
Total Assets
|
$
|
2,287,942
|
||
|
Liabilities
|
||||
|
Deposits
|
$
|
0
|
||
|
Fed Funds
|
0
|
|||
|
Treasury Demand Notes
|
0
|
|||
|
Trading Liabilities
|
0
|
|||
|
Other Borrowed Money
|
0
|
|||
|
Acceptances
|
0
|
|||
|
Subordinated Notes and Debentures
|
0
|
|||
|
Other Liabilities
|
215,240
|
|||
|
Total Liabilities
|
$
|
215,240
|
||
|
Equity
|
||||
|
Common and Preferred Stock
|
200
|
|||
|
Surplus
|
1,171,635
|
|||
|
Undivided Profits
|
900,867
|
|||
|
Minority Interest in Subsidiaries
|
0
|
|||
|
Total Equity Capital
|
$
|
2,072,702
|
||
|
Total Liabilities and Equity Capital
|
$
|
2,287,942
|
||